The concluding observations are available here.
|Convention on the Rights
of Persons with Disabilities
4 October 2013
ADVANCE UNEDITED VERSION
Committee on the Rights of Persons with Disabilities
Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2–13 September 2013)
1. The Committee considered the initial report of Australia (CRPD/C/AUS/1) at its 107th and 108th meetings, held on 3 and 4 September 2013, and adopted the following concluding observations at its 118th meeting, held on 12 September 2013.
2. The Committee welcomes the initial report of Australia, and is grateful for the comprehensive written replies (CRPD/C/AUS/Q/1/Add.1) to the list of issues prepared by the Committee (CRPD/C/AUS/Q/1).
3. The Committee commends the State party for its delegation, which included among its members representatives of Government ministries and the Disability Discrimination Commissioner. The Committee expresses its appreciation for the fruitful dialogue held between the delegation and the members of the Committee.
II. Positive aspects
4. The Committee commends the State party for the adoption of the National Disability Strategy 2010-2020 to implement the Convention across all jurisdictions.
5. The Committee commends the State party for its international cooperation programmes supporting disability-inclusive development which increases access to education, employment, health services and law and justice.
6. The Committee commends the State party for introducing DisabilityCare Australia, a national scheme of self-directed disability support including persons in need of intensive of support.
7. The Committee welcomes the State party’s commissioning, in June 2013, the Australian Law Reform Commission to inquire into barriers to equal recognition before the law and legal capacity for persons with disabilities, as well as the New South Wales and South Australia funding of pilot supported decision-making initiatives.
III. Principal areas of concern and recommendations
A. General principles and obligations (arts. 1 and 4)
8. The Committee is concerned that despite the adoption of the National Disability Strategy, the State party has not to the full extent enacted legislation that corresponds to the contents of the Convention. It is further concerned about the existence of interpretative declarations to articles 12, 17 and 18 of the Convention.
9. The Committee recommends the State party to incorporate all rights under the Convention into domestic law and to review the interpretative declarations on art.12, 17 and 18 in order to withdraw them.
10. The Committee regrets that there is a lack of mechanism for consultation and engagement between Government and persons with disabilities and their organisations in all matters of Convention policy development and legislative reform.
11. The Committee recommends that the State party, in partnership with persons with disabilities through their representative organisations, including children with disabilities, establish engagement mechanisms for ensuring meaningful participation in the development and implementation of legislation and policies to implement the Convention.
12. The Committee is concerned that not all the organisations of persons with disabilities, including those of people with psychosocial disabilities and Aboriginal and Torres Strait Islander people, are provided with adequate resources for their operations.
13. The committee recommends the State party to take initiatives to increase the resources available for independent organisations of persons with disabilities, including organisations representing children with disabilities.
B. Specific rights (arts. 5-30)
Equality and non-discrimination (art. 5)
14. The Committee is concerned that the scope of protected rights and grounds of discrimination in the Disability Discrimination Act 1992 is narrower than under the Convention and does not provide the same level of legal protection to all persons with disabilities.
15. The Committee recommends the State party to strengthen anti-discrimination laws to address intersectional discrimination and to guarantee the protection from discrimination on the grounds of disability to explicitly cover all persons with disabilities including children, indigenous people, women and girls, hearing impaired, deaf, and people with psychosocial disabilities.
Women with disabilities (art. 6)
16. The Committee is concerned at reports of high incidence of violence and sexual abuse against women with disabilities.
17. The Committee recommends that the State party includes a more comprehensive consideration of women with disabilities in public programmes and policies on the prevention of gender-based violence, particularly so as to ensure access for women with disabilities to an effective, integrated response system.
Children with disabilities (art. 7)
18. The Committee is concerned that the National Framework for Protecting Australia’s Children is focused on child protection against violence, abuse and neglect, and that there is no comprehensive national policy framework for children, including children with disabilities, that articulates how the rights of children should be implemented, monitored and promoted.
19. The Committee recommends that the State party:
(a) Increases efforts to promote and protect the rights of children with disabilities, by incorporating the Convention into legislation, policies, programs, service standards, operational procedures and compliance frameworks that apply to children and young people in general;
(b) Establishes policies and programmes that will ensure the right of children with disabilities to express their views on all matters concerning them.
Accessibility (art. 9)
20. The Committee notes that the Disability Standards for Accessible Public Transport 2002 and the Disability (Access to Premises – Buildings) Standards 2010, introduce regulations to address accessibility barriers for persons with disabilities. However, it remains concerned at the level of compliance with accessibility standards and regulations.
21. The Committee recommends that sufficient resources be allocated to ensure monitoring and implementation of the Disability Standards and requirements.
Situations of risk and humanitarian emergencies (art. 11)
22. The Committee notes with concern that despite the adoption of local and state emergency response and mitigation plans, disability needs are often not explicitly factored into disaster response measures and that there are as yet no specific measures in National Plans to address emergency intervention strategies for persons with disabilities.
23. The Committee calls upon the State party in consultation with people with disabilities, to establish nationally consistent emergency management standards, that are implemented across all three levels of government; to ensure inclusivity across diverse disabilities and to cover all phases of emergency management preparation, early warning, evacuation, interim housing and support, recovery and rebuilding. It further recommends inclusion in National Plans of emergency response schemes for persons with disabilities.
Equal recognition before the law (art. 12)
24. The Committee notes that the Australian Law Reform Commission has been recently commissioned to inquire into barriers to equal recognition before the law and legal capacity for persons with disabilities. The Committee is however concerned about the possibility of maintaining the regime of substitute decision-making, and that there is still no detailed and viable framework for supported decision-making in the exercise of legal capacity.
25. The Committee recommends that the State party uses effectively the current inquiry process to take immediate steps to replace substitute decision-making with supported decision-making and provides a wide range of measures which respect the person’s autonomy, will and preferences and is in full conformity with article 12 of the Convention, including with respect to the individual’s right, in his/her own capacity, to give and withdraw informed consent for medical treatment, to access justice, to vote, to marry, and to work.
26. The Committee further recommends that the State party provides training, in consultation and cooperation with persons with disabilities and their representative organizations, at the national, regional and local levels for all actors, including civil servants, judges, and social workers, on the recognition of the legal capacity of persons with disabilities and on the primacy of supported decision-making mechanisms in the exercise of legal capacity.
Access to justice (art. 13)
27. The Committee is concerned at the lack of training for judicial officers, legal practitioners and court staff on ensuring access to justice for persons with disabilities, as well as lack of guidance on how to access justice for persons with disabilities. It is further concerned that access to sign language interpreters or use of Augmentative and Alternative Modes of Communication (AAC) is not supported in all of the States and Territories.
28. The Committee recommends that standard and compulsory modules on working with persons with disabilities be incorporated into training programs for police, prison officers, lawyers, judicial officers and court staff. It further recommends that legislation and policy across States and Territories be amended to ensure access to justice for persons with disabilities in line with article 13.
29. The Committee further urges the State party to ensure that persons with psychosocial disabilities are ensured equal substantive and procedural guarantees as others in the context of criminal proceedings and in particular to ensure that no diversion programs are implemented that transfer individuals to mental health commitment regimes or that require the individual to participate in mental health services rather than providing such services on the basis of the individual’s free and informed consent.
30. The Committee further recommends the State party to ensure that all persons with disabilities who are accused of crimes and are currently detained in jails and institutions without a trial are promptly allowed to defend themselves against criminal charges and are provided with required support and accommodation to facilitate their effective participation.
Liberty and security of the person (art. 14)
31. The Committee is concerned that persons with disabilities, who are deemed unfit to stand trial due to an intellectual or psychosocial disability can be detained indefinitely in prisons or psychiatric facilities without being convicted of a crime, and for periods that can significantly exceed the maximum period of custodial sentence for the offence. It is equally concerned that persons with disabilities are over-represented in both the prison and juvenile justice systems, in particular women, children and Aboriginal and Torres Strait Islander peoples with disability.
32. The Committee recommends that the State party, as a matter of urgency:
(c) Ends the unwarranted use of prisons for the management of un-convicted persons with disabilities, with a focus on Aboriginal and Torres Strait Islander persons with disabilities, by establishing legislative, administrative and support frameworks that comply with the Convention;
(d) Establishes mandatory guidelines and practice to ensure that persons with disabilities in the criminal justice system are provided with appropriate supports and accommodation;
(e) Reviews its laws that allow for the deprivation of liberty on the basis of disability, including psychosocial or intellectual disabilities, and repeal provisions that authorize involuntary internment linked to an apparent or diagnosed disability.
33. The Committee is further concerned that under Australian law, a person can be subjected to medical interventions against his or her will, if the person is deemed to be incapable of making or communicating a decision about treatment.
34. The Committee recommends that Australia should repeal all legislation that authorises medical interventions without free and informed consent of the persons with disabilities concerned, and legal provisions that authorize commitment of individuals to detention in mental health services, or the imposition of compulsory treatment either in institutions or in the community via Community Treatment Orders (CTOs).
Freedom from torture and cruel, inhuman or degrading treatment or punishment (art. 15)
35. The Committee is concerned that persons with disabilities, particularly those with intellectual impairment or psychosocial disability, are subjected to unregulated behaviour modification or restrictive practices such as chemical, mechanical and physical restraint and seclusion, in environments including schools, mental health facilities and hospitals.
36. The Committee recommends the State party to take immediate steps to end such practices including by establishing an independent national preventative mechanism to monitor places of detention including mental health facilities, special schools, hospitals, disability justice centres and prisons, to ensure that persons with disabilities including those with psychosocial disabilities are not subjected to intrusive medical interventions.
Freedom from Exploitation, violence and abuse (art. 16)
37. The Committee is concerned at reports of high rates of violence perpetrated against women and girls living in institutions and other segregated settings.
38. The Committee recommends that the State party orders investigation, without delay, into situations of violence, exploitation and abuse experienced by women and girls with disabilities in institutional settings, and to take appropriate measures on the findings.
Integrity of the person (art. 17)
39. The Committee is deeply concerned that the Senate Inquiry Report into the Involuntary or Coerced Sterilisation of Persons with Disabilities, released in July 2013, presents recommendations, which would allow this practice to continue. The Committee further regrets the failure of Australia to implement the recommendations from the Committee on the Rights of the Child (CRC/C/15/Add.268; CRC/C/AUS/CO/4), the Human Rights Council (A/HRC/17/10), and the Report of the UN Special Rapporteur on Torture (A/HRC/22/53), which addresses concerns regarding sterilisation of children and adults with disabilities.
40. The Committee urges the State party to adopt national uniform legislation prohibiting the use of sterilisation of boys and girls with disabilities, and of adults with disability in the absence of their prior, fully informed and free consent.
Living independently and being included in the community (art. 19)
41. The Committee is concerned that despite the policy to close large residential centres, new initiatives replicate institutional living arrangements, and many persons with disabilities are still compelled to live in residential institutions in order to receive disability support.
42. The Committee encourages the State party to develop and implement a national framework for the closure of residential institutions and allocate the resources necessary for support services that would enable persons with disabilities to live in their communities. The Committee recommends that the state party takes immediate action to make sure that persons with disabilities are given a free choice of where they want to live and with whom and be able to receive the necessary support regardless of the place of residence. The State party should therefore conduct a mapping of the various forms of living accommodation based on the needs of various kinds of persons with disabilities.
Freedom of expression and opinion, and access to information (art.21)
43. The Committee is concerned by the failure to provide all information in accessible formats and to effectively promote and facilitate the use of Australian sign language (Auslan) as Australia’s official sign language and the use of all other forms of accessible formats of communication (deafblind interpretation, braille, easy and plain English, audio description), in particular when persons with disabilities are in official interactions.
44. The Committee recommends that the State party recognizes Australian Sign Language as one of the national languages of Australia and develops the use of other forms of accessible formats by allocating adequate funding for their development, promotion, and use in accordance with Articles 24(3) and 29 (b) of the Convention.
Education (art. 24)
45. The Committee is concerned that, despite the Disability Standards for Education established to ensure access to education on an equal basis, students with disabilities continue to be placed in special schools and that many of those who are in regular schools are largely confined to special classes or units. It is further concerned that students with disabilities enrolled in regular schools receive a substandard education due to lack of reasonable accommodation. The Committee is also concerned that secondary school completion rates for students with disabilities are about half those for people without disability.
46. The Committee recommends that the State party:
(f) Increases its efforts to provide reasonable accommodation of the necessary quality in education;
(g) Conducts research into the effectiveness of current education inclusion policies and the extent to which Disability Standards in Education are being implemented in each state and territory;
(h) Sets targets to increase participation and completion rates by students with disabilities in all levels of education and training.
Access to Habilitation and Rehabilitation (Art. 26)
47. The Committee regrets the state party’s medical model of habilitation and rehabilitation is not based on the human rights model.
48. The Committee recommends that the State party establishes a framework for the protection of persons with disabilities from imposed habilitation and rehabilitation services without free and informed consent.
Right to work (art. 27)
49. The Committee is concerned that employees with disabilities in Australian Disability enterprises (ADE) are still being paid wages based on the Business Services Wage Assessment Tool (BSWAT).
50. The Committee recommends that the State party:
(a) Immediately discontinues the use of the BSWAT
(b) Ensures that the Australians Supported Wage System (SWS) is changed to secure the right assessment of the wages of persons in support employment.
(c) Adopts initiatives to increase employment participation of women with disabilities by addressing the specific underlying structural barriers to their workforce participation.
Participation in political and public life (art. 29)
51. The Committee is concerned that persons with disabilities, in particular persons with intellectual or psychosocial disabilities, are automatically excluded from the electoral roll. It is further concerned that persons with disabilities face significant barriers in the voting process.
52. The Committee recommends that the State party enacts legislation restoring the presumption of the capacity of persons with disabilities to vote and exercise choice; and to ensure that all aspects of voting in an election are made accessible to all citizens with a disability.
C. Specific obligations (arts. 31-33)
Statistics and data collection (art. 31)
53. The Committee regrets the low level of disaggregated data collected and publically reported on persons with disabilities. It further regrets that there is little data about the specific situation of women and girls with disability, in particular indigenous women and girls with disabilities.
54. The Committee recommends that the State party develops nationally consistent measures for data collection and public reporting of disaggregated data across the full range of obligations contained in the Convention, and that all data be disaggregated by age, gender, type of disability, place of residence and cultural background. It further recommends that the State party commissions and funds a comprehensive assessment of the situation of girls and women with disability, in order to establish a baseline of disaggregated data against which future progress towards the Convention can be measured.
55. The Committee regrets that the situation of children with disabilities is not reflected in the data on the protection of children. It further regrets the paucity of information on children with disabilities, in particular data on indigenous children, alternative care for children with disabilities and children with disabilities living in remote or rural areas.
56. The Committee recommends that the State party systematically collect, analyse and disseminate data, disaggregated by gender, age and disability, on the status of children including any form of abuse and violence against children. It further recommends that the State party commissions and funds a comprehensive assessment of the situation of children with disabilities, in order to establish a baseline of disaggregated data against which future progress is made towards the implementation of the Convention.
National Implementation and Monitoring (art.33)
57. The Committee is concerned that Australia lacks a participatory and responsive structure for the implementation and monitoring of the Convention in line with Article 33.
58. The committee recommends the State party to immediately set up a monitoring system that would be fully in line with the provisions of art.33 of the Convention.
Follow-up and dissemination
59. The Committee requests the State party to implement the recommendations of the Committee as contained in the present concluding observations. The Committee recommends that the State party transmit the concluding observations for consideration and action to members of the Government and Parliament, officials in the relevant Ministries, the judiciary and members of relevant professional groups, such as education, medical and legal professionals, as well as to local authorities, the private sector and the media, using modern social communication strategies.
60. The Committee requests the State party to disseminate the present concluding observations widely, particularly to representative organizations of persons with disabilities, non-governmental organizations, persons with disabilities themselves and members of their families, in accessible formats.
61. The Committee encourages the State party to involve civil society organizations, in particular organizations of people with disabilities, in the preparation of its next periodic report.
62. The Committee requests the State party to submit its combined second and third periodic reports by no later than 17 July 2018, and to include therein information on the implementation of the present concluding observations.