This was the final session at the Advocacy Sector Conversations forum held at Queen Victoria Women’s Centre on 14 November 2019.
Overview
Recently, a delegation of people with disability went to the United Nations to report on Australia’s compliance to the Convention on the Rights of Persons with Disability (UNCRPD). Lauren Henley, Disability Advocate, gives us a first hand account of the goings-on in Geneva. Firstly though, Patrick McGee, National Manager Policy, Australian Federation of Disability Organisations (AFDO) provides a summary of the findings from the Outcomes Report published by the UN Committee. The report covers positive developments, areas of concern, as well as listing the committees recommendations for Australia to action.
Links to resources mentioned in this presentation can be found at the bottom of this post.
Transcript & Audio
MELISSA HALE, DARU COORDINATOR
Welcome back. Thank you for your patience and welcome to our last session of the day. Talking to the 2019 UNCRPD Outcomes Report, we have Patrick McGee who is the National Policy Manager at the Australian Federation of Disability Organisation and Lauren Henley who is Australia’s UN delegate.
PATRICK MCGEE, NATIONAL MANAGER POLICY, AUSTRALIAN FEDERATION OF DISABILITY ORGANISATIONS (AFDO):
Hello everybody thank you for inviting us to speak today. I’d like to begin by acknowledging the traditional owners of the land on which we stand the Wurundjeri people of the Kulin nation, pay my respects to their elders past, and present. Aboriginal land has never been seated in its sovereignty and therefore this will always be Aboriginal land.
I’d like to begin by welcoming Lauren Henley who is going to do most of the talking today I stitched that up pretty quickly and early on. We’d like to thank DARU for inviting us here today.
Every four years or so depending on which colour of Government is in Australia we like to report to the United Nations under a range of different human rights instruments. This year we reported under the Convention on the Rights of People with Disabilities. The Convention on the Rights of People with Disabilities has now been in place for 12 years, who would’ve thought that.
It has effectively changed how we talk about disabilities internationally and domestically. We ratified it a long time ago, I think. What it does is it sets up the benchmark and the framework in which we talk about disability. There are a range of different rights spoused within the Convention and the Convention regularly writes about these rights.
If you go onto the CRPD website, you’ll find these things called General Comments. General comments are an explanation of the right to which – the right to housing or the right to accessible information for example.
This year Australia participated in its review process. There’s a formal Australian review, which is coming out of the Australian Government, and then there’s what’s called the Shadow Review Process. This is where civil society come together and write a shadow report. The Government has its report and then we like to tell the truth.
This year a number of different organisations People with Disabilities Australia, Australian Federation of National Disability Organisation, Queensland Advocacy Incorporated to name a few, we came together over the course of the last 18 months to write a report that looked at the different areas that the CRPD cover and report against those areas.
I’m going to talk a bit later about access to justice issues which is my area of expertise and I’ll just give you an example of how we said what we said and then what the UN reported back. It’s quite an intensive process.
Australia sends a delegation of people with disabilities across to Geneva and they meet with the panel, with the CRPD committee and there is some backwards and forwards in different meetings. They would talk to the committee about Australia’s progress under the CRPD.
I think it’s fair to say that the criticism of Australia at this point is we don’t have a structured accountable transparent reporting process. It’s not like we can say this many students are now in mainstream schools getting accessible education. We simply don’t have the necessary framework and mechanisms in place to do that.
What Australia tends to do it says we’ve got this great project in Western Australia, it’s this great school doing this really inclusive education stuff and we’ve got this great transport project in Melbourne and all the trams are going to be accessible. But we don’t actually have a national framework against which we report progress. That’s a real problem and it’s hopefully going to be addressed in the next National Disability Strategy, which is coming up next year.
Without further a due I would like to introduce you to Lauren Henley because she actually went to Geneva. Lauren can talk to her experience.
LAUREN HENLEY, ADVOCATE:
Thanks for the introduction Patrick. I’d just wanted to say upfront the mantra of the Disability Rights Movement internationally is Nothing About Us Without Us. It is of critical importance that the voice of people with disability in Australia is represented in this review at the international level.
As Patrick said the Australian Government provides their accounts of what’s happening and what they’re doing well to implement the rights of people with disability but we know that they tend to gloss things up a little bit and make them appear more attractive than they actually are.
It’s really really important that we have that opportunity to say this is the experience of people with disability in Australia and this is what is happening on the ground and these are the things that still need to be fixed to ensure that people’s rights are adequately protected, promoted and upheld.
Australia was due to report before the committee for the second time on the 12th and the 13th of September. It feels like forever ago now but it wasn’t that long ago. There’s two parts to that process. First of all as Patrick identified there’s some written reports that go to the committee on the rights of persons with disabilities.
That’s a committee of twelve different experts. They come from different countries all over the world but importantly they’re not representing their country. They’re independent experts on the committee and they’re there to provide an impartial and unbiased view on how Australia and other countries that are reporting are stacking up in regards to meeting their human rights obligation.
There was the Australian Government report that went to the committee for review. There was also the shadow report that Patrick identified. There was a third report, which was prepared by Australia’s Disability Discrimination Commissioner Doctor Ben Gauntlet.
In addition to those written accounts, we also have the opportunity to go to Geneva, speak to the committee in person, and provide feedback about what’s happening on the grounds. That all goes into the review process.
What I might do is talk a little bit about the process itself and what my week in Geneva looked like for a couple of reasons. First of all, because I’m a nerd and I found it very fascinating and I know there is some other nerds in the audience, just indulge me.
Also because in six years’ time when all of this has to happen again I would like to think there’s some advocates out there in the audience with lived experience of disability who might actually have the opportunity to go to Geneva and be part of this process. I think it’s really important for all of us as a sector and as a community to get across how this works.
I was a part of a delegation of seven people with lived experience of disability. Our week started out on the Monday. The formal appearance between the Australian Government and the committee it happened on the 12th and 13th of September. Our work in Geneva started Monday the 9th of September.
Our delegation participated in a closed dialogue with the committee on the rights of persons with a disability. It was our delegation of seven people and we were reporting directly to a panel of twelve experts who make up the committee on the Rights of Persons with Disability.
Each member of our delegation had the opportunity to make a one-minute opening statement to draw attention to a number of important human rights issues. You learn very quickly how to be concise. In my one minute, I had to cover issues relating to service gaps for people outside the NDIS and inclusive education and somehow find a way to link the two intuitively because they don’t necessarily go hand in hand but manage to do that in one minute.
Collectively the delegation spoke about Australia’s legislative and policy framework, the employment of people with disability, forced treatment and restrictive practices, inclusive education, indefinite detention of people with disability, legal capacity, discrimination against migrants and refugees with disability, the National Disability Insurance Scheme and issues relating to the NDIS. Violence against people with disability, forced sterilisation and the participation of people with disability and the resourcing of disabled person’s organisations or DPOs.
Once we made our statements, each committee member had an opportunity to just fire a whole heap of questions at us at random. They were asked in one big cluster. Our delegation was given the floor again and we were expected to systematically respond to each question they asked.
I was surprised at how well this actually worked and I think that was down to the excellent and effective coordination of one of our lead delegates Damien Griffith from the First Peoples Disability Network. Many of you will probably know or at least have heard of Damien. Damien led this process and we huddled together as a team and discussed who would be best placed to respond to each question that had been asked and then directed those accordingly.
On Wednesday, our delegation had an opportunity to host a formal side event, which was attended by members of the committee. It enabled us to delve into the issues of Civil Society Shadow Report in a little bit more detail and clarify any points the committee might still have been unclear on.
I think one thing this experience has taught me is how to think very quickly on my feet. We met as a delegation to prepare and finalise that side event about twenty minutes before it happened. Not because we didn’t care enough to do it earlier but because we didn’t have enough time. I don’t think anyone noticed because we worked together really well as a team and I think it went quite well.
Outside of those two formal appearances before the committee, we spent most of our week in individual meetings with each committee member to brief them further on issues raised in the shadow report. We tried to get a sense of each of the issues each member would be interested in and sent along delegates who were best placed to speak to those specific issues.
All that work was building up to the constructive dialogue that would take place between the committee and the Australian Government at the end of the week, Thursday and Friday. In all our interactions with the committee, what we were aiming to do was influence the questions they would direct to the Australian Government during this constructive dialogue process.
I’d like to think we were pretty successful. As we sat and watched things unfold during the constructive dialogue on the Thursday and Friday, it was really apparent that the committee had been listening to absolutely every single word we said and they were pressing the Australian Government on the issues raised throughout the shadow report.
The constructive dialogue process itself I’ll tell you about because it was a fascinating process. There’s three clusters of questions. Firstly relating to Articles 1 through 10, second cluster 10 to 20 and then the third cluster is 20 to 37; I can’t remember how many articles there are.
What happens with each cluster the committee will ask a range of questions and they could relate to any of the articles in that cluster. For Cluster 1, it was Articles 1 to 10 that they were asking questions about. They will all be asked at once then the Australian Government delegation may have 20 minutes to go away and think about what it is they want to say in response to those questions. Then they come back and provide their responses.
It’s the same process for the second and third clusters and the process takes two separate sessions over two days to complete. I have to say while I wasn’t thrilled with everything that came out of the Australian Government delegations mouths they did coordinate themselves really really well. I think that’s a tall ask to go away in 20 minutes and figure out how you’re going to respond to all of these questions. They did a really good job all things considered.
Our delegation was able to be in the room while the Australian Government was giving their responses but we weren’t allowed to say anything. That was very very difficult. We had confirmed with a couple of the committee members that we were able to email them further clarifications or comments or follow up questions during that constructive dialogue if we wanted to.
As the Australian Government was telling outright lies about things, we were sitting in our little WhatsApp group typing madly away working out what we were going to feed back to the committee. It was a lot of fun to be honest I really enjoyed it.
What next – what was the point of this exercise: After the committee has reviewed all the evidence it’s received and that’s written and verbal evidence they hand down a set of concluding observations. The concluding observations really set out what Australia is doing well in terms of upholding the rights of people with disability and they also set out a number of recommendations in terms of what needs to happen in this reporting period to make sure Australia’s doing better and properly upholding the rights of people with disability in Australia.
The committee handed down its concluding observations on Australia on the 25th of September and our delegation was pretty happy with the result. I think I often get this question of how are we stacking up against other countries and just to give you a bit of background there, Australia was reporting against Kuwait and Iraq.
It’s all relative and in the broad scheme of things, Australia is not doing too bad. We need to remember Australia is a wealthy country and it’s held to the highest possible standard in regards to the implementation of its human rights obligations and so it should be. As all of us, advocates know there are a number of areas where we are still not meeting our obligations to people with disability.
All of those issues I’m pleased to say were picked up in the reporting process and are reflective in the concluding observations. They are available online the concluding observations. I know there’s a couple of organisations at the moment who are working on writing them up into easy English. The very ironic part of anything to do with the Convention and Treaty Body reporting is that it’s all very technical and jargonistic. It’s not very plain English at all. I hope that that easy English version will become available soon.
The committee did have some positive things to say about Australia’s performance, noting that it appreciated the following measures: the adoption of the National Disability Insurance Scheme Act, the adoption of state and territory legislation and policies such as inclusion action plans and justice strategies. The adoption of the new National Disability Employment Framework, the adoption of the Australian Government Plan to improve outcomes for Aboriginal and Torres Strait Islander people with disability.
The establishment of the Royal Commission into violence, abuse, neglect and exploitation of people with disability. The establishment of the National Disability and Carers Advisory Council. The commitment to introduce a 7% employment target for people with disability in the public services and the endorsement of a new national disability data set which will bring together Commonwealth, State and Territory data from across multiple sources and systems to provide a more complete picture of the needs of people with disabilities in Australia and that’s something that Patrick was referring to, this need for this aggregated data that can actually drive policy around disability.
Things the committee was concerned about, I won’t go through them all because there were a lot of them. Just to give you a brief overview, the fact that the convention has still not been incorporated into domestic law. I hear this a lot from disability advocates. They tell me the convention is really a toothless tiger. I wouldn’t necessarily agree with that. I think it definitely has its place and it’s something we need to use in the disability advocacy sector but it hasn’t been entwined into Australian Law.
We still don’t have a national human rights act. There are some states that have taken steps to implement human rights legislation into their own jurisdictions but we don’t have anything that’s nationally consistent. That’s a problem. Also, the serious delays in releasing the third plan for implementing the National Disability Strategy and the weakness and overall lack of commitment to the measures outlined in the National Disability Strategy itself.
I think a lot of people in this room would probably agree it’s a really nice high-level aspirational document but there is no funding attached to it. There is no real plan about how it’s going to be implemented. There were meant to be implantation plans but they’ve been delayed so we haven’t seen a lot of tangible progress because of the National Disability Strategy. The Australian Government was criticised around that.
Also, a lot of concerns unsurprisingly, around the National Disability Insurance Scheme the fact that assessments still revolve around a very medicalised model of need. The fact that older people, Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse backgrounds, people with intellectual disability and people with psychosocial disability are not afforded the same opportunities under the scheme.
Something that Patrick was talking about just in relation to how our anti-discrimination legislation works here in Australia and the shortfalls associated with that. When we spoke to committee members, they were very surprised to hear we have all these standards in place under the DDA. We’ve got standard in access to premises and transport for example but there is no reporting requirements. There’s no compliance measures. There’s no fines issued if people don’t comply.
It relies on discrimination having occurred first of all then it relies on the individual to go and do something about it. There’s no guarantee that that matter will resolve at conciliation and then most people can’t afford to take it to court. It really is a flawed system and that has been recognised by the committee and they’ve made a number of recommendations around that.
All of the issues I referred to earlier that we spoke about based on what was in the Shadow Reports there are recommendations around every single one of those issues. I encourage you if you haven’t already to track down a copy of the concluding observations and have a read. I think what we need to talk about is next steps.
This is the end of the road in terms of my work in Geneva but it’s the start of a national conversation. We need to be using these concluding observations and the recommendations within them to drive change. To say to Government this is the standard that has been set internationally and we expect you to do what is set out in this report.
On that note, I might hand back over to you Patrick to talk about what AFDO is doing in response to the concluding observations and what you see as being the next steps.
PATRICK MCGEE:
Listening to Lauren makes me think thank goodness people like Lauren are leading disability advocacy in this country really. I think she deserves a round of applause everybody that was pretty good. I’ve heard that speech now a couple of times and it’s no less inspiring each time I hear it.
I’m going to talk about the concluding observations that relate to indefinite detention. Indefinite detention is where people with disabilities who have psychosocial impairment or should I do questions first for Lauren – no we will do this and then do questions, yep.
Indefinite detention is where people with disabilities who commit crimes are found mentally impaired and unfit to plead. What does unfit to plead mean – it means you don’t know the difference between right or wrong, guilt or innocence. If you can’t know the difference, you can’t be held against the same legal standards as someone who does know the difference.
There’s an alternative process through the justice system for that group of people. This is called The Mental Impairment Process. It leads to this situation where a person is detained so that they can receive treatment. The treatment being behaviour intervention to change the behaviour in which the crime was committed.
Very flawed system, big problems because people are being detained for the purposes of treatment in jails. They’re being detained indefinitely that means there is no sentence attached to the process. When we’ve deemed your risk of harm to be lowered then we will let you back into the community. How do you deem risk of harm to be lowered if you’re in prison, it’s very complicated.
The previous concluding observations in 2014 and these concluding observations, both said that Australia needs to dismantle its indefinite detention regime. Every state and territory has this piece of legislation in it. There are three groups of people that are subject to indefinite detention in this country terrorists, paedophiles and people with disabilities.
We’ve got a real problem on our hands. The concluding observations in 2014 and again in 2018 say Australia you should dismantle this legal process.
Last week there were from the CRPD committee two complaints came back about Indigenous Australians with cognitive impairments in the Northern Territory who are indefinitely detained and the complaints alleged arbitrary detention and cruel and unusual punishment. The CRPD committee upheld those complaints. It found Australia guilty of those things.
I’m going to use that as the mechanism by which I describe to you what you can do to advocate around the concluding observations. I’m going to talk about justice but if your thing is education, I want you to pull up something in your mind about education and apply the same process. If it’s transport, do the same thing. I’m talking about justice, in your head you think about the thing that’s of most importance to you.
The first thing to do is be in contact with an advocacy agency. Nothing can happen in this country unless people are standing up and yelling about it. Service providers do advocacy but not in the same way as advocacy organisations do it and there are individual advocates who make things better for individuals and systemic advocates who take on systems.
Concluding observations are about systemic advocacy and in this case, I’m talking about indefinite detention. The first thing I encourage you to do is be in contact with an advocacy organisation, so that you can feed on to them the circumstances in which the people your supporting or are in contact with you can feed into the advocacy organisation what’s happening for them.
We all rely on the circumstances that people are experiencing to understand what’s going on for people. Then people like me who work nationally pick up those circumstances around the country and we form a national picture. I can’t do that unless this information is fed up to us. That’s the first thing, be in contact.
The second thing is look at the concluding observations and work out what your organisation wants to act upon. You can’t act upon everything. Some people like education some people like transport, my thing is justice. So you act on the thing that’s of most importance to your organisation and to the people that you’re supporting. You can’t do everything.
In me acting upon justice, what I’m doing is I am building within the Australian Federation of Disability Organisations, the capacity to understand what the justice issues are. That’s the second thing you do, you build awareness of what the issue is that you wish to advocate about. You become the expert.
That’s really important because in becoming the expert then really what happens is because no one outside of disability is really terribly interested in disability let’s face it, we’ve got to become the experts so that we can then talk to the politicians about the situations, the people with disabilities are experiencing.
You might only talk to your board about the organisation about becoming more disability justice aware or more transport aware or it may be that you only talk to your state and territory parliamentarians and you raise the issue with them. You write to them, you raise the issue with them and you seek responses from them – what are you going to do about this.
The Tran network we all see which is currently being upgraded to become accessible that only occurred because a group of people relentlessly contacted their parliamentarians and said what are you doing about this. That’s such a simple question, very powerful.
We work at the national level and so we’re working with the Commonwealth and we do the same thing. In a couple of weeks, I’m slapping around parliament for four days, banging on people’s doors just talking to them about the issues.
Finally, I would say this, you cannot do this alone. This concluding observations are really big. We’re talking about dismantling legal processes in every state and territory. I would say form partnerships with people. Form partnerships with other organisations that you work with that you know hold the same values as yourselves and want to do that work together.
Cannot do this stuff alone. You take something like a concluding observation about dismantling indefinite detention, you start within your own organisation, and you build up so that eventually what you do is subvert the process and over throw the Government.
We’re going to take a couple of questions – are there any questions for Lauren, yes.
QUESTION:
Where this concluding observation summary?
PATRICK MCGEE:
We’ll make sure it’s put onto the DARU website and you will be able to get it from there.
Thank you very much everybody, thank you Lauren.
[APPLAUSE]
Happy to come back and talk any time. Thanks Melissa.
MELISSA HALE:
Thank you very much Patrick and Lauren. I’m sure we’re all going to go home now and start writing those letters. Thank you all for coming. Thank you to this amazing Auslan interpreter who’s taken on this massive job today, thank you very much.
To live streaming people thank you for your work and Michael up the back with the sound. Safe travels home and we will see you next time.
Happy Christmas.
Download Australian Government Report to UNCRPD (off-site)Download CRPD Civil Society Shadow Report (off-site)Download 2019 UN Outcomes Report (off-site)- Author:
- DARU
- Date published:
- Thu 14th Nov, 2019