WHAT IS THE CONVENTION ON THE RIGHTS OF PEOPLE WITH DISABILITIES (CRPD)?
The United Nations Convention on the Rights of People with Disabilities (CRPD) is a landmark document. It was negotiated in less than five years and it has the potential to affect positively 650 million people with disabilities (PWD) or the world’s largest “minority” worldwide.
WHY IS THERE A NEED FOR A CONVENTION FOR PWD?
In a perfect world the Universal Declaration of Human Rights would be enough to ensure protection for every marginalised group in society. However this is not the case and groups such as children, women and specifically PWD can and do miss out. Member states that have enacted specific anti-discrimination laws in particular areas such as disability have attempted to address discrimination. As not all countries have anti-discrimination laws, an international treaty (another word for convention) is meant to guarantee the rights of PWD everywhere. Therefore this puts disability rights on every nation’s agenda as human rights. The CRPD is strongly based on the belief that equality for PWD depends on empowerment, access to opportunity and a move away from a welfare model to a goal of participation and inclusion.
When the Australian delegation went to the Ad-hoc sessions of the organising process of the treaty, they took up the “nothing about us, without us” slogan which meant that there were PWD participants who went to the UN as well as those that were strongly committed to see the convention’s formation.
This convention is also the first to have non-governmental organisations take an instrumental part in the conception of the treaty.
The CRPD or convention as referred to is actually two separate documents:
1. The Convention on the Rights of Persons with Disabilities, which contains the substantive human rights provisions (referred to as ‘Articles’) as well as provisions that set up its operational framework; and
2. the Optional Protocol to the Convention on the Rights of Persons with Disabilities, which is a more limited document that sets up an individual complaints procedure.
A member nation or a State can be a signatory and ratify one document and not the other. Australia has not given any indication that it will sign or ratify the Optional Protocol. Whereas a commitment to start the process of ratification for the treaty is underway – the Optional Protocol does not appear to be on the Federal government’s agenda.
WHAT RIGHTS ARE ADDRESSED IN THE CRPD?
The intention of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human rights by persons with disabilities. The Articles of the Convention recognise civil, cultural, economic, political, and social rights
Specific rights covered in the Convention include:
• Equal protection
before the law
• Liberty and security of the person
• Freedom from torture
• Protection of the integrity of the person
• Liberty of movement and nationality
• Freedom of expression
• Respect for privacy
• Right to participation in public life
• Freedom from exploitation
• Respect for home and the family
• Right to live in the community
• Right to education
• Right to life
• Right to health
• Habilitation and rehabilitation
• Right to work
• Right to an adequate standard of living
• Right to participate in cultural life
WHEN WAS IT OPENED FOR SIGNATURE?
The CRPD was opened for signature on 31 March 2007 and Australia signed the convention that day.
WHO HAS SIGNED? WHO HAS RATIFIED? WHAT IS THE PROCESS OF RATIFICATION?
As at 08 November 2007, 118 countries have signed the CRPD, demonstrating a commitment to upholding the rights of people with disabilities.
66 countries had signed the Optional Protocol as at 08 November 2007.
If a country signs a convention, it has demonstrated in good faith that it is planning on ratifying. However a country is not bound by a treaty until it is ratified AND furthermore if the convention has international force. Article 45 of the CRPD states that “the present Convention shall enter into force on the thirtieth day after the deposit of the twentieth instrument of ratification or accession.”
The Optional Protocol will come into force internationally on the 30th day after the 10th instrument of ratification or accession is deposited with the United Nations, as long as the Convention is already in force.
If a country signs and ratifies the CRPD they in effect have agreed to the legal obligations that the treaty contains and then will implement it in domestic law of that country. Currently seven countries have ratified the Convention, being Jamaica, Hungary, Panama, Croatia, Cuba, Gabon and India. Jamaica was the first country to ratify the treaty but has not ratified the Optional Protocol yet, and neither has Cuba, Gabon nor India.
The process of ratification by Australia involves (in brief) a comprehensive review of all Commonwealth, State and Territory legislation to ensure that Australia can comply with all the Articles of the CRPD. This review process is coordinated by the Commonwealth Attorney General’s Department and the Department of Families, Community Services and Indigenous Affairs (FaCSIA) will communicate with the States and Territories. A National Interest Analysis will examine possible economic, environmental, social and cultural effects of the CRPD and be a thorough consultative process with not just the states and territories but also with key sector stakeholders. Once the report is completed, it will be tabled in both houses of Parliament, with the text of the CRPD and a Regulation Impact Statement – if one is required. Once tabled, it will be referred to the Joint Standing Committee on Treaties (JSCOT) which will assess and report on proposed conventions. JSCOT will then receive submissions and may hold public hearings. The government will then consider and respond to any recommendations made by the committee. There is bi-partisan support for the CRPD and no party has come out against the treaty.
WHEN DOES IT COME INTO FORCE?
As stated above, treaties come into force once governments ratify (which means formally agree to be bound by) them. The CRPD requires a minimum 20 ratifications before it enters into force and 30 days have passed.
As a representative from a key stakeholder organisation, I attended a workshop at the Human Rights and Equal Opportunity Commission (HREOC) at which the federal Attorney General stated that he would put the CRPD on the Standing Committee of Attorney General’s agenda when he next met with them in July.
The workshop produced a positive lobbying commitment, in which a goal was agreed to urge Australia to ratify the CRPD by 3 December 2008, the day being the International Day of People with a Disability.
DOES IT CREATE NEW RIGHTS?
The CRPD does not create new rights; rather it builds on existing rights and principles. What it is intended to do is put PWD rights on a government’s and therefore society’s agenda. For countries in which disability rights are limited or non existent, the ratification and then implementation of the CRPD in domestic law will hopefully bring about a change from thinking about PWD as ‘other’ to inclusive and empowering practices. The use of language is a step towards this with ‘people with disabilities’ viewed as people first, with human rights which are indivisible and which belong to all humans. By saying ‘people’ or ‘person’ first rather than ‘disability’ or ‘disabled’; a change of language can be a positive step to moving towards change in attitudes and an all important step to challenge institutionalised discrimination! For more on the use of inclusive and empowering language, see the UN website- http://www.un.org/disabilities/
WHAT EFFECT WILL IT HAVE ON AUSTRALIA?
That remains to be seen. As this is a UN treaty, and federal laws are the first step of implementation or change, it is believed that it may or may not have some affect on the DDA. Critics of the CRPD believe that this treaty will have little affect in Australia, partly due to the viewed ‘watering down’ of the Disability Discrimination Act 1992 (DDA) which is the federal law covering disability discrimination. Since the inception of the DDA there has been a swing away from what PWD hoped the DDA would mean to narrow interpretation by the courts (for example the HCA decision in Purvis has been criticised as limiting the application of the DDA).
There is also a view that anti-discrimination laws are well balanced in Australia therefore the CRPD will have little or no effect if ratified in this nation, especially in light of judicial interpretation of the laws.
WHAT EFFECT WILL THE CRPD HAVE IN VICTORIA?
It is too early to try and guess its potential effect on state disability laws. Will the anti-discrimination laws- the Equal Opportunity Act 1995 (VIC) be affected? Will the Disability Act 2006 (VIC)? The Mental Health Act 1986 (VIC)? Will any disability legislation be affected and if so how will the changes work? It is not clear if at all as to what might happen in Victoria at this point in time, not until the federal government ratifies the treaty and then what steps if any are taken to implement it in domestic law. However s 32 of the Charter of Human Rights and Responsibilities 2006 (VIC) allows judges to view international law and judgments when interpreting Victorian legislation and any future jurisprudence resulting from decisions involving the CRPD could be highly relevant in certain scenarios.
Living in a country in which more people acquire a disability than are born with one, coupled with an ageing population, there is a strong argument for ratification and expansion of the DDA to ensure real - not just adequate –protection for PWD. Nearly 20%of Victorians have a disability and one out of five people in Australia have some form of a disability- this is even when taking a narrower definition of “disability” than the DDA uses.
It is important to remove barriers as well as to encourage workforce participation, employment and the education of PWD. The only way to make the CRPD a reality is to start and continue to lobby the state, territory and federal governments to ratify it. We need to keep the CRPD on the political agenda so we can effect change.
Alyena Mohummadally
Solicitor and Community Legal Education Advocate
Blind Citizens Australia
Please note this article is current as at 8 November 2007 and all statistics and reference material is sourced from:
http://www.un.org/disabilities/convention/facts.shtml http://www.un.org/Overview/rights.html
http://www.un.org/esa/socdev/enable/rights/convtexte.htm
http://www.un.org/disabilities/countries.asp?navid=17&pid=166 http://www.un.org/esa/socdev/enable/conventionratif.htm
http://www.dfat.gov.au/treaties/treaties_handbook.pdf for an in depth look at how treaties become law in Australia
http://www.alp.org.au/media/0407/msdisc020.php
http://www.humanrights.gov.au/disability_rights/faq/convention.htm
http://www.humanrights.gov.au/disability_rights/word/workshop_communique.doc
http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/2003/62.html?query=^purvis
http://www.austlii.edu.au/au/legis/vic/consol_act/cohrara2006433/s32.html