International context

United Nations Convention on the Rights of Persons with Disabilities

2.4 Australia was one of the original signatoriesto theCRPD—the first binding international human rights instrument explicitly to address disability—when it opened for signature on 30 March 2007.[2] Australia ratified the CRPD in July 2008 and the Optional Protocol in 2009. The CRPD entered into force for Australia on 16 August 2008,[3] and the Optional Protocol in 2009.[4]

2.5 The purpose of the CRPD is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.[5] The CRPD consolidates existing international human rights obligations and clarifies their application to persons with disabilities.[6] It does not create new rights.

2.6 Such international instruments do not become part of Australian law until incorporated into domestic law by statute.[7] But, as noted by the High Court in Minister for Immigration and Ethnic Affairs v Teoh, a convention can still assist with the interpretation of domestic law:

The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.[8]

2.7 Even when an international convention has been incorporated into domestic law, however, its beneficial impact cannot be assumed. Adam Johnston observed that ‘the level of adherence and/or enforcement can rely on many factors’:

The first of these can be political willingness, reflected in the resourcing of relevant agencies. Domestic cultural norms can be important and the broad terms of many conventions can leave much up to an individual reader’s interpretation as to what an Article requires. Judicial views, the lobbying of interest groups and the public credibility of international institutions can also play their part.[9]

2.8 While implementation can be a multifaceted challenge, a document like the CRPD can both reflect and propel shifts in thinking—in this context for persons with disability. Family Planning NSW commented that the CRPD is ‘a powerful statement of what Australia and the world believe are the fundamental rights of people with disability’;[10] and the ACT Disability, Aged and Carer Advocacy Service said that the CRPD ‘represents a cultural, identity and legal shift’.[11]

2.9 The CRPD reflects a social model of disability, which describes disability in terms of the interaction between a person’s disability and the external world.[12] As the Preamble of the CRPD states:

Disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.[13]

2.10 The Office of the Public Advocate (Qld) said that the CRPD incorporates ‘a contemporary approach to disability’:

  • recognising that disability is an evolving concept and that disability results from the interaction between people with impairments and their surroundings as a result of attitudinal and environmental barriers;

  • the right and capacity of people with disability to make valued contributions to their communities; and

  • recognising that all categories of rights apply to people with disability, who should therefore be supported to exercise those rights.[14]

2.11 As Professor Gwynnyth Llewellyn of the Centre for Disability Research and Policy, University of Sydney, submitted: ‘defining disability as an interaction means that “disability” is not an attribute of the person’.[15]

2.12 In addition to the general principles and obligations contained in the CRPD,[16] art 12 underpins the ability of persons with disability to achieve many of the other rights under the Convention. It recognises the right of persons with disability to enjoy legal capacity ‘on an equal basis with others in all aspects of life’.[17] Article 12 is of central importance in this Inquiry.

2.13 By ratifying the CRPD, Australia accepted the obligation to recognise that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life and to take appropriate measures to provide persons with disability access to the support they may require in exercising their legal capacity. It also requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse.[18]

Other international instruments

2.14 In addition to the CRPD, there are other international instruments of relevance to this Inquiry. The Universal Declaration of Human Rights affirms the inherent dignity and the equal and inalienable rights of all people and sets as a common standard the protection of these rights by the rule of law.[19] While the International Covenant on Civil and Political Rights makes no specific reference to persons with disability, it enshrines rights to self-determination of all people as well as rights to physical integrity, liberty and security of the person, equality before the law and non-discrimination.[20] Additionally, the International Covenant on Economic, Social and Cultural Rights protects the right to work, social security, family life, health, education and participation in cultural life;[21] and the Convention on the Rights of the Child refers specifically to disability.[22]

2.15 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT)[23] may also be relevant, as there have been suggestions that the use of restrictive practices with respect to persons with disability might contravene the CAT.[24]

2.16 There are also a number of international instruments that specifically protect the rights of women,[25] children[26] and Indigenous peoples,[27] which are of relevance in considering intersectional discrimination. All of these instruments are reflected in the articles of the CRPD.

Interpretative Declarations

2.17 An ‘Interpretative Declaration’ is a unilateral statement made by a State or an international organisation, in which that State or organisation purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.[28] Australia has made three Interpretative Declarations in relation to the CRPD:[29]

[Re art 12:] Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards;

[Re art 17:] Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards;

[Re art 18:] Australia recognizes the rights of persons with disability to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others. Australia further declares its understanding that the Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, nor impact on Australia’s health requirements for non-nationals seeking to enter or remain in Australia, where these requirements are based on legitimate, objective and reasonable criteria.[30]

2.18 The Interpretative Declarations are intended to outline the Australian Government’s understanding of its obligations under the Convention and do not purport to exclude or modify the legal effects of the CRPD.[31]

2.19 For the purpose of this Inquiry, it is the first declaration relating to art 12 and decision-making that is of principal concern. There are differing views about the effect of this declaration, particularly in relation to the role of substitute decision-making, which prompt a reconsideration of its retention. This is considered below.