Background
2.1
The proposed treaty action is accession to the Optional Protocol to the
United Nations Convention on the Rights of Persons with
Disabilities.
2.2
The United Nations Convention on the Rights of Persons with Disabilities
(CRPD) entered into force for Australia on 16 August 2008 (see JSCOT Reports 92 and 95). Parties to the CRPD are obliged to ensure and promote recognition
of the economic, social and cultural rights of people living with disabilities.[1]
As a Party to the CRPD Australia can now accede to the Optional Protocol to the
CRPD.[2]
2.3
The Committee was informed that there are essentially two aspects to the
Optional Protocol. First, it enables individuals living with disabilities
within Australia to lodge unresolved complaints with the United Nations Committee
on the Rights of Persons with Disabilities (the Disability Committee) once all
domestic remedies have been exhausted. Second, it permits the Disability Committee
to initiate and conduct its own inquiries where it suspects a grave or systemic
breach of the CRPD is taking place.[3]
2.4
The Disability Committee consists of 12 independent experts elected by
State Parties to the CRPD. Currently an Australian, Professor Ronald McCallum AO, is an elected member of the Disability Committee.[4]
2.5
As at February 2009, there are 137 State Parties to the CRPD and 28 State
Parties to the Optional Protocol.[5]
Obligations
2.6
The primary obligations of State Parties to the Optional Protocol are to
recognise the Disability Committee’s competence, assist in its inquiries and to
provide written responses to the Disability Committee’s communications and
recommendations.
2.7
Article 1 provides that parties to the Optional Protocol recognise the
ability of the Disability Committee to receive and consider communications from
individuals subject to its jurisdiction. These communications may be received
by the Disability Committee only after all domestic remedies for the complaint
have been exhausted, and only in relation to events occurring after the
Optional Protocol enters into force for the relevant State Party. The
Disability Committee will then consider whether to accept the communication as
admissible (Article 2).[6]
2.8
Any communications submitted to the Disability Committee are
confidentially brought to the attention of the State Party. The State Party is
then required to provide a written response, within six months, to the
Disability Committee clarifying the matter and any solution that may have been implemented
(Article 3).
2.9
The Disability Committee, at any time after receiving a communication
and before determining its admissibility, may make a non-binding request to the
State Party that urgent interim action be taken to avoid possible irreparable
damage to the victim (Article 4).
2.10
The Disability Committee will then consider the communication and forward
its suggestions and recommendations, if any, to the State Party and the complainant.
All communications and meetings are in-confidence (Article 5).[7]
2.11
Articles 6(1) and 6(2) of the Optional Protocol set out that, following
receipt of reliable evidence indicating a grave and systemic breach, the
Disability Committee will invite the State Party concerned to cooperate in the
examination of the information and submit observations. The Disability
Committee may then designate one or more of its members to conduct an inquiry
and to report back urgently. Where warranted, and with the consent of the State
Party concerned, the inquiry may include a visit to the territory of the State
Party. All inquiries are conducted in cooperation with the State Party and are in-confidence.[8]
2.12
Once the Disability Committee has completed its inquiry, it will convey
its conclusions, comments and recommendations to the State Party concerned. The
State Party will then have six months in which to respond by submitting its
observations to the Disability Committee (Articles 6(3) and 6(4)). The
Disability Committee’s findings and recommendations are not legally binding on
State Parties. [9]
2.13
Whilst recommendations made by the Disability Committee are not binding,
one submission to the inquiry pointed out that the obligations of the CRPD
itself are binding. The submitter argued that if the Disability Committee finds
that a systemic violation is taking place and makes a recommendation via the
mechanisms provided by the Optional Protocol, the State Party may be obliged to
take action to remedy this violation to ensure it is abiding by its obligations
under the CRPD.[10]
2.14
The Attorney-General’s Department also suggested that, whilst the
recommendations are not binding, they may be a very persuasive moral force
which governments will need to take seriously.[11]
Reasons for Australia to take treaty action
2.15
The Committee received a number of submissions supporting accession to
the Optional Protocol. Many of the submitters considered that accession to the
Optional Protocol would promote the inclusion and participation of people living
with disabilities in all aspects of life and the law within Australia.[12]
2.16
Additionally, a representative from the Australian Federation of
Disability Organisations (AFDO) suggested that accession to the Optional Protocol
would raise public awareness of the barriers faced by people with disabilities
and how the public can be a part of the solution.[13]
2.17
The Attorney-General’s Department considered that accession to the
Optional Protocol would provide an extra layer of accountability to Australia’s antidiscrimination measures.[14]
2.18
A number of submitters to the inquiry were also of the view that participation
in the Optional Protocol would demonstrate to the international community Australia’s confidence in its human rights record and its willingness to be open and
accountable when it comes to human rights. Some submitters also suggested that
accession to the Optional Protocol would promote the rights of people with
disabilities within our region and on the international stage.[15]
2.19
The Government considered that accession to the Optional Protocol would
reinforce the Australian Government’s commitment to membership of the United
Nations (UN) as one of the three pillars underpinning its approach to foreign policy.[16]
This view was further advocated in a range of submissions to the inquiry.[17]
2.20
Australia is a party to four other treaties that provide for similar external
appeal mechanisms. These treaties are:
n First Optional
Protocol to the International Covenant on Civil and Political Rights;
n Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment;
n Convention on the
Elimination of all Forms of Racial Discrimination; and
n Optional Protocol to
the Convention on the Elimination of All Forms of Discrimination Against Women.[18]
2.21
A number of submissions to the inquiry argued that, in light of Australia’s accession to the above-mentioned treaties, accession to the Optional Protocol
to the CRPD is imperative to ensure that the rights of people with disabilities
are on an equal footing with the rights ensured by these other treaties.[19]
2.22
The Attorney-Generals Department considered that the number of
communications made under the Optional Protocol is likely to be relatively few,
given that Australia is in compliance with the immediately applicable
obligations outlined in the CRPD.[20] A number of submissions
to the inquiry supported the view that accession to the Optional Protocol is
unlikely to prompt a large number of communications to the Disability
Committee.[21] However, one submitter
to the inquiry stated their intention, upon Australia’s accession to the
Optional Protocol, to appeal to the Disabilities Committee about alleged
on-going breaches of the CRPD.[22]
2.23
Submitters also suggested that accession to Optional Protocol would help
to give effect to the CRPD by helping to identify and ensure compliance with Australia’s obligations under the CRPD. It was also considered that the recommendations of
the Disability Committee would benefit Australia’s pursuit of human rights as
they would be made by informed independent experts with a wide range of
experience in disability rights issues.[23]
2.24
One submitter argued that:
the Disability Committee … would be able to consider whether
or not Australian laws, policies and procedures are compliant with and are
being interpreted and applied consistent with the Convention rights and State
Party obligations. Where the Disability Committee determines they are not,
their reasoning will provide important guidance on the challenged law or policy
and how it can and should be modified to ensure Convention rights are protected
and obligations are fulfilled.[24]
Opposition to Optional Protocol
2.25
The Committee received one submission from FamilyVoice Australia opposing Australia’s accession to the Optional Protocol.[25]
2.26
The key issues raised were:
n allowing complaints
to be considered by a UN Committee could undermine Australian domestic law and
legal sovereignty at both the federal and state/territory level;
n the Optional Protocol
could lead to increased liberalisation of Australian laws; and
n the Disability Committee
lacks neutrality and has a particular ideological focus.
2.27
FamilyVoice Australia argued:
The fundamental notion of Australia as a sovereign nation is
compromised by allowing a committee of foreigners, appointed by the nations
which have ratified the Convention, to second guess the outcome of domestic
judicial proceedings or the validity of laws passed by our parliaments.[26]
2.28
Representatives from the Attorney-General’s Department outlined the
department’s position on these issues. First, the recommendations made by the
Disability Committee, whilst persuasive, are non-binding. Thus the Australian
Government will maintain sovereign control over its own affairs including its
antidiscrimination and human rights laws.[27] Secondly, members of the
Disability Committee are independent human rights experts elected by the will
of all of the countries who are party to the CRPD. These members do not serve
on the Disability Committee as representatives of their respective governments
but rather as independent experts in the field of protecting the rights of
people with disability.[28]
Implementation
2.29
The Optional Protocol will not require changes to current Commonwealth,
State and Territory legislation, policies or programs.
2.30
Australia will need to submit a written response to any communications
from the Disability Committee. Australia will be expected to cooperate with the
Disability Committee and may be requested to permit the Disability Committee to
visit Australia in the course of its inquiries. No legislative or procedural changes
are required in order for Australia to recognise the competence of the Disability
Committee to receive and inquire into complaints in this manner.
2.31
The Office of International Law (OIL), within the Attorney-General’s
Department, will be responsible for drafting all reports and submissions to the
Disability Committee. In preparing submissions, OIL will consult with the
Australian Government department with portfolio responsibility for the issue
raised, as well as any State or Territory Governments whose policies may be
affected.
2.32
A number of submissions to the inquiry suggested mechanisms for
considering any recommendations or views of the Disability Committee. One
submission suggested that the Government should table any views and
observations of the Disability Committee in all Commonwealth, State and
Territory legislatures and adopt the practices of referring any recommendations
to the relevant parliamentary committees.[29] Submissions further
argued that any recommendations of the Disability Committee should be the
subject of consultations with the disability sector.[30]
Access to appeal mechanisms
2.33
A representative from the Attorney-General’s Department described the
current domestic complaint mechanisms available to Australians living with
disabilities. At the state and territory level there are antidiscrimination
laws which permit complaints to be heard by various state and territory-level
human rights commissions and courts. At the federal level, people are protected
by the Disability Discrimination Act 1992. According to the Act,
complaints can be made to the Human Rights and Equal Opportunity Commission.
The Commission will then try to resolve the complaint. If the complaint remains
unresolved, a person can take action in the Federal Court or the Federal
Magistrates Court. The court then orders which measures should be taken, including
compensation, apology or restricting the complainant from pursuing the matter
further.[31]
2.34
If a complainant is still not satisfied with the ruling of the Federal Court,
a communication could then be lodged with the Disability Committee. This
communication would most likely take the form of a written letter which would
have to demonstrate that all domestic remedies have been exhausted. If the
communication is accepted by the Disability Committee, it would then conduct
its inquiry in consultation with the Australian Government, relevant State/Territory
governments and interested non-governmental organisations.[32]
2.35
A representative from the AFDO suggested that it is not clear when all
domestic remedies would be exhausted and when an appeal could be made to the
Disability Committee. The representative expressed the need for the Government
to make clear to complainants the pathway they would have to follow in order to
make an appeal to the Disability Committee.[33]
Costs
2.36
The costs of preparing and submitting written explanations or statements
to the Disability Committee are expected to be absorbed within the usual budget
of the Attorney-General’s Department. Any costs associated with visits by the
Disability Committee would also be absorbed within the usual budget of the Departments
involved.[34]
Future treaty action
2.37
Article 15 provides that any State Party may propose an amendment to the
present Optional Protocol. Amendments will only be binding on those State
Parties that have accepted the amendment.[35]
2.38
Article 16 provides that a State Party may denounce the Optional
Protocol by written notification to the Secretary-General of the UN. A
denunciation becomes effective one year after receipt of notification.[36]
Consultation
2.39
Relevant Commonwealth Ministers and agencies and State and Territory
Governments were consulted about the Optional Protocol and have provided
support for accession.
2.40
Consultation on the Optional Protocol was undertaken with the disability
sector during Australia’s initial accession to the CRPD. These consultations
were undertaken by the AFDO, the National Association of Community Legal
Centres, People With Disabilities and the State and Territory Disability
Advisory Councils. All consultations strongly supported Australia’s accession to both the CRPD and its Optional Protocol.
2.41
The Attorney-General’s Department also sought submissions specifically
on the implementation, and obligations under, the Optional Protocol. A range of
disability and other organisations responded to this request. The large
majority of submissions urged Australia to become a Party to the Optional
Protocol.[37]
Conclusions and recommendations
2.42
The Committee notes the concern put forward by the AFDO that the means
by which a complainant can determine that all domestic avenues have been exhausted,
and thus that a complaint can be made to the Disability Committee, are not
clear. The Committee therefore considers that as part of the implementation of
the Optional Protocol every effort should be made by the Australian Government
to clearly identify for potential complainants when all domestic avenues would be
considered to be exhausted, and how to lodge a communication with the
Disability Committee.
2.43
The Committee is of the view that the Optional Protocol will provide an
additional mechanism to protect and promote the rights of persons with
disabilities. The Committee considers that accession to the Optional Protocol
will demonstrate Australia’s commitment to human rights and allow international
scrutiny of this commitment to take place. It therefore supports binding treaty
action being taken.
Recommendation 1 |
|
|
The Committee recommends that the Australian Government
makes advice available via the Attorney-General’s Department website and/or
other fora as to:
n when
all domestic avenues of complaint under Australia’s anti-discrimination
regime would be considered to be exhausted; and
n the
process a complainant would need to undertake in order to lodge a complaint
with the United Nations Committee on the Rights of Persons with
Disabilities.
|
Recommendation 2 |
|
|
The Committee supports the Optional Protocol to the
Convention on the Rights of Persons with Disabilities and recommends that
binding treaty action be taken.
|
