Disability Human Rights: An analysis of their protection under the national and international systems

Disability human rights, in Australia, were, for a long time neglected by governments at all levels. Many people living with a disability were isolated within their family units, unable to access our urban cities and facilities due to inadequate infrastructure, which did not meet the special needs of those in wheelchairs and those with other accessibility requirements. Property developers and those building public access buildings were not always considering the needs of those with a disability and legislation was deemed necessary to force the issue. The disabled in Australia were effectively second-class citizens and effectively banned from crossing streets, utilising shops, hotels, sporting grounds, libraries, hospitals, schools, restaurants, churches, public transport, art galleries, museums, and most public buildings in general. Two hundred years of Australia’s existence, saw the disabled neglected and treated with indifference because of ignorance of their plight and an unwillingness to spend the extra money on the necessary infrastructure to make buildings accessible to those living with a disability.  

“Access to public transport is critical for people with disability in order for them to participate fully in community life and the economy…”     (Dept. Infrastructure, Regional Development & Cities, 2018)

It is important to acknowledge that there has been marked improvement in the structural accessibility of cities and buildings in Australia over the last 20 years. Public transport infrastructure accessibility improvements for the disabled have been significant during this period in our major cities (Innes, 2006).

Why did we ignore the plight of the disabled for so long?

Historically and culturally it is part of a much broader inclination to discriminate against those human beings living with a disability, here in Australia and around the world. Children tease and bully other kids who are different from the norm. Disabled kids come into this category and are, often, taunted by ‘so-called’ normal kids. Culturally, we celebrate conceptions of physical perfection and denigrate those who abjectly fail to meet the grade. Beauty is praised and rewarded, whilst handicapped, crippled, impaired, lame, and paraparetic people were historically despised. Today, although somewhat ashamed of our impromptu reactions to the misbegotten, miscreated and malformed, we prefer to avoid them where possible. We do not employ them in high visibility and well-paid jobs. Discrimination against the disabled remains overwhelmingly prevalent in the Australian job market in 2018 (AHRC, Information for List of Issues Prior to Reporting-Australia, June 2017). Employers are ill equipped to employ the disabled. Companies, according to the statistical evidence, do not want the disabled to represent their firms. HR people do not hire them because they do not want their existing staff to feel uncomfortable at work.

In 1992, the Federal Disability Discrimination Act (DDA) came into being in Australia. It was designed to make discrimination against someone with a disability unlawful, to foster equal opportunity, accessibility, and to promote equality between the disabled and able members of our community. Section 15 of the DDA, specifically, deals with the human rights of the disabled when it comes to employment. It defines their protection in relation to their attempts to gain a position, a promotion, and in regard to equality of renumeration.

“15. Discrimination in employment (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability…”      (DDA 1992, Federal Register of Legislation)

The Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006 at the United Nations (UN) headquarters in New York (CRPD, UN, Dept. Economics & Social Affairs, 2006). Australia ratified the convention in 2007, along with 80 other nations. It is telling that it took, nearly, 60 years for the human rights of the disabled to be recognised via a global treaty from the time of the Universal Declaration of Human Rights (UNDHR) in 1948. The CRPD Preamble (k) states that it is:

“Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world…”        (UN CRPD, 2006)

“Big social changes don’t always happen overnight when a law is passed.”  (Innes, 2006)

Legislation against prejudice is not 100% effective or anywhere near that, especially in regard to employment opportunities and remuneration.  Article 27 of the CRPD (1) begins:

“States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities…”     (UN, CRPD, 2006)

As an Australian citizen, actively participating in the job market, I am not seeing the results of the CRPD and the DDA, in particular, in regard to employment opportunities and equalisation for those living with a disability in Australia. The reality is that in private enterprise, Australian employers overwhelmingly employ who they wish to employ. Only 53% of Australians with a disability are employed vs 83% of all those of a working-age (Darcy, 2017).  Acceptance and respect for diversity, when it comes to the disabled, has a long way to go in this country to meet the real requirements of those living with a disability.

What can be done about this via the human rights instruments & institutions already in place?

Complaints concerning disability discrimination remain the largest category reported to the Australian Human Rights Commission (AHRC) and have been for the last two decades (Darcy, 2006). This fact alone indicates that something in this process is ineffective and not engendering the change required. Currently, complainants contact the AHRC and provide as much relevant detail as possible. The Commission, then, decides whether to investigate the complaint on the basis of information provided. If the investigation goes ahead, the AHRC will contact the organisation or individual being complained about and provide them with a copy of the complaint. The AHRC is not a court of law and has no legal power. Complainants can take the matter to court if they so choose. The Commission may recommend conciliation if appropriate (AHRC, 2018).  Sounds like a toothless tiger to this writer. It is an undeniable fact that there is a great deal of talking when it comes to human rights, but much less action when it comes to actually policing the transgressions within states like Australia. Many Australians are openly dismissive and contemptuous when it comes to the human rights instruments and institutions, as evidenced by our ongoing refugee/boat people situation and the resultant approbation of the UN (Sparrow, 2015).

The Committee on the Rights of Persons with Disabilities is the body of 12 to 18 independent experts, which monitors the implementation of the CRPD within the states that have ratified the convention (CRPD, UN, Dept. Economics & Social Affairs, 2006). In Australia, the AHRC provided information to the Committee on the 12th July 2017 (AHRC, June 2017). In section 3.14 (60) in that document it states:

“In 2015, 53% of working-age people with disability, and 25% of those with severe or profound limitation, were participating in the labour force, compared with 83% of those without disability.”

The AHRC conducted an inquiry at a national level into employment discrimination against Australians with a disability in 2015. They found systematic barriers to employment, which included an absence of practical assistance provided by employers, negative community attitudes, segregation of the disabled in supported employment, and ineffective disability employment services. The National Disability Insurance Scheme (NDIS) is seen as a government initiative to help more disabled get off welfare and find work. However, in the early stages, little emphasis is being cast on employment, with only around 9% of NDIS plans including targeted support in this area (Rowe, 2017).

The Disabled People’s Organisations of Australia (DPO) made submissions to the CRPD on June 2017. The DPO is an alliance of four national groups which are: Women with Disabilities Australia (WWDA), First Peoples Disability Network Australia (FPDNA), People with Disability Australia (PWDA), and National Ethnic Disability Alliance (NEDA).

Individuals can make complaints to the CRPD Committee via the Optional Protocol to the Convention, as seen by the five listed under the Acceptance of Individual Complaints Procedures for Australia, listed between 2016 and 2018 (UN HR, Office of the High Commissioner).

It can be concluded that progress has been made in structural accessibility for the disabled in the main Australian cities. The National Disability Strategy (NDS), however, the CRPD Committee reports, has failed in its implementation of plans to meet CRPD obligations between 2015-2018 in areas like housing accessibility, information services, transport and communication for the disabled. The right to work and gain meaningful employment remains a major issue due to culturally embedded resistance by employers and the larger community. A good job and economic self-sufficiency provide self-esteem and value for the individual within the community. Real equality comes with employment and the recognition that endowers.

©Robert Hamilton

BIBLIOGRAPHY

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