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Submission for the Draft Baseline Study for National Human Rights Action Plan

The NSW Disability Discrimination Legal Centre (DDLC) welcomes the opportunity to comment on the draft Baseline Study for the National Human Rights Action Plan. Our submission will primarily focus on issues pertaining to disability discrimination, the National Disability Strategy and other areas of human rights which impact upon persons with disability, including the use of restrictive practices, institutionalisation, and sterilization. We will refer to the UN Convention on the Rights of Persons with Disabilities (CRPD) to highlight relevant human rights and associated State obligations.

Ensuring strong disability discrimination laws is essential step towards gaining full equality for persons with disability. This is encapsulated in Article 5 of the CRPD, which covers equality and non-discrimination. We note that the proposed consolidation of the Commonwealth Discrimination Acts exposure draft, as part of the overall National Human Rights Framework, is anticipated to be released in the near future.

For this reason, it is essential that the Equality Bill must strengthen disability discrimination law. As stated in the Baseline Study, Tasmania is the only state that has anti-vilification provisions for persons with disability in its Anti-Discrimination Act.1 Therefore, it is essential that anti-vilification protection for all attributes is included in the Equality Bill.

It is our position that the disability standards in transport, education and access to premises must be retained in the Equality Act as they create a positive duty to make reasonable adjustments for persons with disability. There must also be provisions for new standards to be made in any of the areas of public life in which discrimination on the basis of disability is prohibited.

In order for an Equality Act to be effective in achieving equality and non-discrimination for persons with disability, other systems need to change. Given that persons with disability experience greater unemployment than the general population, they have less resources and energy to commit to litigation. Persons with disability are more likely to rely upon Community Legal Centres such as ours for legal advice and representation. It is critical for funding for Community Legal Centres to be increased to ensure that persons with disability receive adequate legal advice andrepresentation in order to combat discrimination and other human rights abuses.

1 Attorney General’s Department, Na t i onal H u m an R i g hts A c t i on P l an Ba s e li ne S tudy C on s u l ta t i on (June, 2011) , p. 64

In addition, conciliated agreements made at the Australian Human Rights Commission (AHRC) ought to be capable of registration and enforcement. This would assist in avoiding complainants from having to go to court in event of a breach. Furthermore, the Federal Magistrate’s Court must be a cost free jurisdiction or at the very minimum, cost capping should be guaranteed.

We also recommend that the AHRC be granted power to initiate complaints to enable systemic change and lessen the onus on individuals to make complaints. There needs to be the establishment of an investigation agency, similar in concept to the Fair Work Ombudsman. There needs to be a joint investigation framework established, including the Police and AHRC to deal with the criminal offences for example, incitement, victimisation, and vilification.

The National Disability Strategy (NDS) must form part of the National Human Rights Action Plan. However, there are areas identified for future action which we feel should be dealt with immediately. One of these areas is ensuring that the NDS is consistent with the National Indigenous Reform Agreement to adequately address the needs of Aboriginals and Torres Strait Islanders with disability.2 We feel that improving awareness of universal design and the promotion of it in procurement is also immediately realisable.3

In the area of rights protection, justice and legislation, there are number of areas for future action where work should commence without further delay. These include promoting awareness and acceptance of the rights of persons with disability, the review restrictive legislation and practices from a human rights perspective, supporting independent advocacy from a human rights perspective, and ensuring supported decision making safeguards are in place for those who needthem.4

Law reform in the area restrictive practices is a key priority for us. Restrictive practices including physical restraint, mechanical restraint, chemical restraint, including in the form of PRN medication, aversive techniques and seclusion for the purposes of behavioural control compromises the human rights of persons with intellectual disability, persons with psychosocial disability and persons with acquired brain injury. Therefore, they must be reduced or abolished. This is a key priority that is derivative of the rights and State obligations set out in Article 14 of the CRPD, which deals with the liberty and security of the person, Article 15 which deals with freedom from torture or cruel, inhuman or degrading treatment or punishment, and Article 17 which deals with protecting the integrity of the person.

There are a number of issues identified for future action in the area of economic security, which ought to be addressed immediately. This includes improving employer awareness of the benefits of employing persons with disability, reducing barriers and disincentives for the employment ofpersons with disability, and improving the employment of persons in the public sector and in

2 Council of Australian Governments, Na t i onal D i s ab i l i ty S t r a t e g y 2010 - 202 0 (2011), p. 253 I b i d ., p. 354 I b i d ., p. 41

government funded organizations.5 The issue of people with disability having difficulties entering

the workforce has also been identified in the baseline study.6 However, we disagree with the concept of Australian Disability Enterprises as they contravene Article 27(1) of the CRPD which requires State Parties to recognise the right of persons with disabilities to a work environment which is open and inclusive. As Australian Disability Enterprises are not open employment they do not comply with this requirement.

Several issues identified for future action under personal and community support should be addressed in the shorter term. One of these issues is supporting the development of assistive

technologies and improved access to equipment for persons with disability. 7 Further, it is essential that the Commonwealth start making steps towards the implementation of the National Disability Insurance Scheme, as recommend by the Productivity Commission, to enhance the human rights of persons with disability.

Under learning and skills, immediate action is required in reducing barriers and simplifying access for persons with disability to a high quality inclusive education across the lifespan. 8 This is in accordance with Article 24 of the CRPD. We welcome the new injection of funds to support children with disability in schools that was announced by the Commonwealth Government in May this year.9

Under the area of health and wellbeing, the following areas must be addressed without further delay: strengthening health care planning, training and the capacity of the universal health care system to diagnose and treat health and comorbid conditions in persons with disability; strengthen the continuity, coordination and range of primary, multi-disciplinary and sub-acute care should be available to meet the health needs of persons with disability and address health

issues for persons with disability as part of the national expansion of public health strategies10. These are essential for the realisation of the right to health recognised in Article 25 of the CRPD.

In order for persons with disability to fully realize their human rights, it is an imperative that residential institutions (also known as congregate care facilities), including boarding houses, must be closed. Furthermore, all redevelopment of institutions should cease. Article 19 states that “State Parties to this Convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full inclusion and participation in their communities”.

It is incorrect for governments to claim that redevelopment of congregate care facilities fulfil the rights of persons with disability to adequate housing and social support. 11 For example,

5 I b i d ., p. 466 Attorney General’s Department o p . c i t ., p. 667 Council of Australian Governments, o p . c i t ., p. 528 I b i d ., p. 589 Attorney General’s Department o p . c i t . , p. 6710 C ounc i l o f A u s t r a l i an G ov e r n m ent s , o p . c i t . , p. 6411 Shut In, S hut I n P o s i t i on P a per (August, 2011)

institutions have caused persons with disability to become disconnected from their family and friends because of the nature of their environment.

Persons with disability who have lived in institutions have suffered some of the most horrendous human rights violations imaginable. Typically institutions violate people’s right to privacy as they mostly have shared bedroom, bathroom and living spaces and staff discuss resident’s personal information in open spaces where both other staff and other residents can hear. Furthermore, residents have no choice in mealtimes, menus, and what time they get up and go to bed. Institutions provide an environment which exposes them to physical, sexual and psychological abuse.

A recent report by the NSW Ombudsman on boarding houses highlighted some serious abuse and neglect. These include physical assault and intimidation, sexual assault, intimidation, bullying and harassment by staff and other residents12. There has also been several inquests into deaths in boarding houses. For example, one man was admitted to hospital with pneumonia three months prior to his death. Hospital staff noted that he had poor hygiene and was at high risk of malnutrition. The deceased by staff was found approximately 12 hour after his death. There were blood stains on his fingernails, head and clothes. There were several unopened sandwich packets and the room was in an untidy state.13 Concerns were also raised about unhygienic food preparation and storage, provision of unhealthy meals and a lack of residents access to basic foodstuffs.14 The report also raises concerns over medication management. Residents have died as a result of antipsychotic medication toxicity.15 Medication is being stored and administered inappropriately.16 It was also noted that residents were being denied access to advocacy services.17 The essence of the human rights for residents of boarding houses is captured in the concluding comments of the report which state “the welfare of vulnerable boarding house residents should not be dependent on goodwill or favours of individual proprietors. Instead, it should be guaranteed through a robust regulatory and monitoring framework.”18

In 1998, the then Community Services Commission, did a re-audit of the Lachlan Centre (a large residential centre in Sydney’s north) and found that exclusionary practices were continued to be used and that the Centre did not have policies and procedures pertaining to critical incidents, medication and nutrition.19 It was also found that clients with a deterioration in health status were not immediately provided with immediate assistance.20 The Commission found that PRNmedication was administered prior to other behaviour intervention strategies being

12 NSW Ombudsman, Mo r e than ju s t board and l o d g i n g : the n eed f or boar d i ng hou s e r e f o r m (August 2011), p. 613 Ibid., p. 714 Ibid., p. 815 Ibid., p. 916 Ibid., p. 1017 Ibid., p. 1118 Ibid., p. 1319 Community Services Commission, T he L a c h l an I nqu i r y 1998 , p. 1520 I b i d ., p. 17

implemented.21 An advocate found a “urine soaked bed base which was unhygienic and foul smelling”.22 Further, in 1997 the NSW Audit Office conducted an audit of all the large residential centres in New South Wales. It found that there was no criteria to establish basic requirements for residents safety and protection from abuse.23 The report has noted the maltreatment of residents of institutions by staff but also of systemic abuse. “The inability of institutions to provide residents with the positive lifestyles as well as to meet the physical, social and emotional needs of residents can sometimes lead to the systemic abuse of individuals residing there.”24 The report also found that there was a lack of complaint handling procedures, particularly in relation to improperconduct by staff. This leaves residents at risk of abuse and maltreatment which is compounded by the fact that residents and their families fear retribution if they do make a complaint.25

An area identified by the Baseline Study is legal capacity. This right is realisable under Article 12 of the CRPD. We call for a greater emphasis and investment in supported decision-making as an alternative to guardianship and administration, but the latter, appropriately safeguarded, is essential for the protection and realisation of rights in particular circumstances. However, it is important that substituted decision making is a measure of last resort and is subjected to the appropriate safeguards.

Australia traditional approaches to legal capacity and guardianship have been based on presumptive approaches where people with disability are deemed to lack capacity. In order to successfully implement Article 12 Australia needs to develop mechanisms that truly support people with disability in decision-making without infringing upon their dignity or autonomy.

Central to this is the recognition that capacity is not a binary concept – you either have it or you lack it – but that it reflects a diversity of levels at which people can engage in the process utilising a variety of modes. The challenge is to provide frameworks that provide mechanisms for supportthat are proportional and tailored to an individual’s needs and incorporate safeguards that proportional to the modes of support.

Another priority area to be incorporated into the National Human Rights Action Plan as identified by the baseline study is the abolition of non-therapeutic sterilization of women and girls with disability. This was recommended to Australia by the Universal Periodic Review (UPR) as per recommendation 39. Further, it was identified in General Comment 13 of the Convention on the Rights of the Child, that forced sterilisation of girls with disabilities as a form of violence and that

all forms of violence against children is unacceptable and there are no exceptions.26 However,Australia only accepted the UPR recommendation only in part. Australia maintains that the ‘best

21 I b i d ., p. 5122 I b i d ., p. 5223 NSW Audit Office, P e r f o rm a n c e A ud i t R e po r t, L a r g e Re s i d e nt i al C ent r es f o r P eo p l e w i th a D i s a b il i ty i n N ew S outh W a l es (1997), p. iv24 I b i d ., p. 725 I b i d ., p. 6326 Women With Disabilities Australia (WWDA), Un i ted Na t i ons c a l l s on A u s t r a li a to p r oh i b i t n o n - th e r apeu t i c s te r i l i s at i on of g i rl s w i th d i s a b i l i t i es (March 2011), p. 2

interest’ test is consistent with our international obligations. The High Court decided in

Department of Health and Community Services v JWB and SMB (Marion’s Case)27 that consent for sterilization procedures must be determined by the Family Court and not the person’s parent or guardian in children. For adults this is determined by the state and territory guardianship tribunals. The ‘best interest’ test is open to wide interpretation. For example, Women withDisabilities Australia (WWDA) raised the point that in some cases that parents, carers, and medical personnel may see surgical non-therapeutic sterilisation as an appropriate way of managing

menstruation and avoiding pregnancy, however, it is not in the best interest of the child.28 In addition, it breaches the following articles of CRPD; Article 16 which covers freedom from exploitation, violence and abuse, Article 17 which covers protecting the integrity of the person and Article 23 which covers respect for home and the family, including the right of persons with disabilities to parenthood. Furthermore, Article 23 1. c), specifically states State Parties to ensure “Persons with disabilities, including children, retain their fertility on an equal basis with others”.

We would like to see a shift in focus in how the rights of persons with psychosocial disability are perceived. Previously, the rights of this disability group have been centred on what should not happen to people rather than positive rights. For example, persons with psychosocial disability should have a positive right to services. This includes access to housing and support services. This is pursuant to Australia’s obligations under Article 28 of the CRPD.

In conclusion, it is imperative that the human rights of persons with a disability are given full protection, particularly in light of the CRPD. We urge you take into consideration the areas we have highlighted and our suggestions for change.

FIONA GIVEN Policy Officer

8th September 2011

27 [1992] HCA 1528 Women With Disabilities Australia (WWDA), S tan d i ng C o m mi t t ee o f A tt o r neys G ene r a l ( S C A G ) : I ss ues P ap e r on t h e N o n - T he r a p eut i c S t e r i li s a t i on o f M i n o r s w i th a D e ci s i o n - M a k i ng D i s ab i li ty (2006)