Disability Rights

The following content draws upon, in part, the Joint Australian NGO Coalition's fact sheets prepared for the Universal Periodic Review.

Implementation of the UN Convention on the Rights of Persons with Disabilities

People with disability do not enjoy their fundamental human rights on an equal basis with others in Australia. Although the Disability Discrimination Act 1992 (Cth) provides limited protection from discrimination and harassment for people with disability in areas of employment, education and the provision of goods and services, many people with disability are unable to assert their rights due to the lack of human rights in legislation. As a result, many people with disability remain significantly disadvantaged in Australian society in relation to key indicators of social and economic well-being.

Non-therapeutic sterilisation

Non-therapeutic sterilisation of people with disability remains an ongoing practice in Australia and impacts most significantly on the rights of women and girls with disability. To some extent, State and Territory guardianship and child protection laws regulate and provide a degree of protection from non-therapeutic sterilisation for all children and young people and adults with decision-making disability, but none makes non-therapeutic sterilisation explicitly unlawful.

Comprehensive law reform is required to provide effective guarantees against such abuse. From 2003 to 2007, Australia began to address non-therapeutic sterilisation of children by drafting nationally consistent legislation. However, this legislation aimed to regulate authorisation of non-therapeutic sterilisation rather than prohibit this form of abuse. The Australian Government discontinued this work because it believed that evidence indicated that sterilisation of children with intellectual disability had declined and that existing guardianship and court mechanisms for authorising sterilisation procedures were working adequately. In 2005, the Committee on the Rights of the Child recommended in its Concluding Observations that Australia "prohibit sterilisation of children, with or without disabilities" (Committee on the Rights of the Child, Concluding Observations, Australia, September 2005, 46 e.).

In 2010, the Committee for the Elimination of Discrimination Against Women recommended in its Concluding Observations that Australia "enact national legislation prohibiting, except where there is a serious threat to life or health, the use of sterilisation of girls, regardless of whether they have a disability, and of adult women with disabilities in the absence of their fully informed and free consent" (Committee on the Elimination of Discrimination Against Women, Concluding Observations, Australia, July 2010, 43).

Exercising the Right to Vote

The ability of people with disability to vote independently and in secret in national, state and local government elections is still not a reality for many people with disability in Australia. This is despite the legal requirements to provide voting accessibility for people with disability under the Disability Discrimination Act 1992 (Cth) (DDA) and obligations under Article 29 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Barriers to exercising a right to vote include:

  • lack of accessible polling venues; lack of accessible information; and lack of access to the same postal voting arrangements as other citizens;
  • lack of ballot papers in accessible formats, such as Braille, and in formats other than print
  • means that many people with disability have to rely on another person to record their vote, and therefore are not able to cast a secret ballot;
  • provisions in legislation that enable people to be excused from voting if they are of "unsound mind" – these provisions exclude many people on the grounds of their impairment rather than on their capacity to understand and make decisions. This is contrary to principles and concepts of "capacity" contained in Article 12 of the CRPD.
  • receiving penalty notices for not voting when many people with disability may not understand voting information or may be unwell at the time of the election.

What the UN Human Rights Council recommended in the Universal Periodic Review

In January 2011 Australia was reviewed by the UN Human Rights Council during the Universal Periodic Review (or UPR) (a process whereby the human rights performance of all UN member states is reviewed by other states).  In June 2011 Australia provided its response to the 145 recommendations made by the Human Rights Council.

The Government has accepted over 90 per cent of the recommendations and has committed to incorporating the recommendations it has accepted into the National Human Rights Action Plan.

In relation to the rights of disabled people, the Human Rights Council made a number of relevant recommendations.  Australia has responded to these recommendations as set out in the following table.

Recommendation

Stance

Explanation

Continue to address the plight of persons with disabilities, in particular through the National Disability Strategy, and share Australia’s experience in this regard (recommendation 86.40).

Already reflected

Australia accepts the recommendation on the basis it is reflected in existing laws or policies and Australia will continue to take steps to achieve relevant outcomes.

Take measures to consolidate domestic legislation to end discrimination against people with disabilities in line with international standards (recommendations 86.41, 86.45 – 86.47).

Already reflected

Consolidate Commonwealth anti-discrimination legislation to ensure the full enjoyment of all human rights by every member of society (recommendations 86.42 and 86.44).

Accepted

Australia will consolidate federal anti-discrimination law into a single streamlined Act to enhance the regime and give effect to existing grounds of protection.

Enact comprehensive equality and non-discrimination legislation at the federal level (recommendation 86.43).

Accepted-in-part

At this stage, the Australian Government does not commit to enacting a substantive guarantee to equality.

Comply with and implement the recommendations of international treaty bodies prohibiting the sterilisation of women and girls with disabilities (recommendation 86.39).

Accepted-in-part

The Australian Government considers that the ‘best interests’ test as articulated and applied in Australia is consistent with Australia’s international obligations. The Attorney-General intends to initiate further discussions with State and Territory counterparts.