The CRPD and Optional Protocol
The CRPD is a legally binding international human rights convention that recognises the dignity and human rights of persons with disabilities by identifying their fundamental human rights and providing a detailed code for the implementation of such rights. International recognition of these rights under the CRPD completes the human rights picture in relation to persons with disabilities. Whilst the CRPD does not formulate any “new” human rights, it applies existing rights to the particular circumstances of persons with disabilities and clarifies the obligations on State parties to promote, protect and ensure the rights of persons with disabilities.
The CRPD identifies the various steps State parties must undertake to ensure persons with disabilities are not discriminated against and enjoy an equal status with persons without disabilities. State parties have an obligation to raise awareness of the rights of persons with disabilities, promote access to justice, ensure their personal mobility and collect data relevant to the CRPD. The CRPD also incorporates a social development perspective and emphasises the importance of international cooperation in supporting State parties’ implementation efforts.
The National Interest Analysis on the Optional Protocol (Optional Protocol NIA) was tabled in the Australian Parliament in Australia on 3 December 2008. The Optional Protocol NIA supported Australia's accession to the Optional Protocol on the basis it would 'render Australia more accountable for its Convention obligations and further promote disability rights within Australia' and 'present Australia as an international leader committed to protecting the rights of people with disability'. The Optional Protocol entered into force in Australia on 20 September 2009.
The second half of the CRPD is made up of implementation and monitoring articles, and operational articles. This part of the CRPD sets out the implementing and monitoring requirements in relation to the Convention at both the national and international levels, and basic arrangements for administering the CRPD.
Importantly, the CRPD should be read and interpreted as a whole. In other words, the articles of the CRPD should not be read in isolation.
Optional Protocol to the CRPD
The Optional Protocol to the CRPD is a separate treaty which establishes:
• a complaints procedure; and
• an inquiry procedure.
These procedures do not grant any rights additional to those contained in the CRPD, but are designed to supplement the CRPD and strengthen and promote its implementation and monitoring. The complaints procedure allows for individual complaints to be lodged with the Committee where there is an allegation that a State party has violated its obligations under the CRPD and where the complainant has exhausted all available domestic remedies. The inquiry procedure allows the Committee to initiate its own inquiries where there is information to suggest that a State party has engaged in grave or systematic violations of the CRPD.
The focus of the CRPD
The term 'persons with disabilities' applies to all persons who have long-term physical, mental, intellectual or sensory impairments. However, the scope of the term is not exhaustive in terms of who may claim protection under the CRPD, nor does it exclude broader categories of persons with disabilities under national laws such as persons with short-term disabilities or those who have had disabilities in the past.
State parties are required to consult with persons with disabilities through their representative organisations when developing and enacting legislation and policies implementing the CRPD and in respect of all policy matters affecting the lives of persons with disabilities.
The scope of the CRPD
The scope of the CRPD includes setting out the human rights of persons with disabilities, the obligations of State parties to promote, protect and ensure those rights and mechanisms to support its implementation and monitoring. The content can be broken down in the following way:
• Preamble – gives general context to the CRPD and identifies important background issues
• Purpose – sets out the goal of the CRPD which is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms of all persons with disabilities, and to promote respect for their inherent dignity
• Definitions – defines key terms in the CRPD, namely, communication, language, discrimination on the basis of disability, reasonable accommodation and universal design
• General principles – identifies the standards or imperatives that apply to the enjoyment of all rights in the CRPD, such as the principle of non discrimination and the principle of equality
• Obligations – clarifies the steps that State parties must take to promote, protect and ensure the rights in the CRPD
• Specific rights – identifies the existing civil, cultural, economic, political and social human rights, affirming that persons with disabilities also hold those rights
• Enabling measures – identifies specific steps that State parties must take to ensure an enabling environment for the enjoyment of human rights, namely, awareness-raising, ensuring accessibility, ensuring protection and safety in situations of risk and humanitarian emergencies, promoting access to justice, ensuring personal mobility, enabling habilitation and rehabilitation, and collecting statistics and data
• International cooperation - recognises the importance of the international community working together to ensure the full enjoyment of the rights of persons with disability
• Implementation and monitoring – requires State parties to establish national frameworks for monitoring and implementing the CRPD and establishes a Conference of States Parties to consider any matter in relation to implementation of the CRPD and a Committee on the Rights of Persons with Disabilities to monitor the CRPD
• Final clauses – sets out the procedures for signature, ratification, entering into force and other procedural requirements relevant to the CRPD.
The specific rights recognised in the CRPD are as follows:
• Equality before the law
• Right to life, liberty and security of the person
• Equal recognition before the law and legal capacity
• Freedom from torture
• Freedom from exploitation, violence and abuse
• Right to respect physical and mental integrity
• Freedom of movement and nationality
• Right to live in the community
• Freedom of expression and opinion
• Respect for privacy
• Respect for home and the family
• Right to education
• Right to health
• Right to work
• Right to an adequate standard of living
• Right to participate in political and public life
• Right to participate in cultural life.
Specific actions required of State parties
The focus of the CRPD includes the actions State parties must take to ensure persons with disabilities fully enjoy their rights on an equal basis with others; the specific rights of women and children; areas where State party action is required such as data collection and raising awareness; as well as international cooperation. The CRPD obliges State parties to provide appropriate 'enabling environments' so persons with disabilities fully enjoy their rights on an equal basis. In this way, the CRPD recognises that establishing a right differs from ensuring that right is realised. The actions required of State parties to facilitate an enabling environment include providing for:
• the development of an awareness of the rights of persons with disabilities
• specific action to ensure protection in situations of risk and humanitarian emergencies
• access to justice
• personal mobility
• statistics and data collection.
The CRPD acknowledges the fundamental need for international cooperation to ensure to full realisation of the rights of persons of disabilities through the exchange of information and experience, research programs and technical and economic assistance.
Implicit in the CRPD are three distinct obligations of State parties:
• to 'respect' by refraining from interfering with the enjoyment of the rights of persons with disabilities
• to 'protect' by preventing violations of these rights by third parties
• to 'fulfil' by taking appropriate legislative, administrative, budgetary, judicial and other actions in order to realise the rights enshrined in the CRPD.
As the CRPD has been ratified in Australia, it is legally binding and forms part of Australia's international human rights obligations. By signing and ratifying the CRPD, the Australian Government made a symbolic step for disability rights in Australia as well as a legal and international commitment that reinforces existing national laws.
Such international obligations, however, do not automatically become part of Australian law after ratification. Under article 4 of the CRPD, State parties must adopt all appropriate legislative, administrative and other measures for the implementation of CRPD rights including modifying or abolishing existing laws, regulations, customs and practices constituting discrimination against persons with disabilities. To date, the Australian Government has held the view that current Australian laws and institutional arrangements broadly comply with the terms of the CRPD, including the Disability Discrimination Act 1992 (Cth), the Disability Services Act 1986 (Cth), the Australian Human Rights Commission, the Commonwealth Disability Strategy, and disability peak body and advisory structures.
Specifically, State parties have an obligation to:
• adopt legislation and administrative measures to promote the human rights of persons with disabilities
• adopt legislative and other measures to abolish discrimination
• protect and promote the rights of persons with disabilities in all policies and programmes
• stop any practice that breaches the rights of persons with disabilities
• ensure that the public sector respects the rights of persons with disabilities
• ensure that the private sector and individuals respect the rights of persons with disabilities
• undertake research and development of accessible goods, services and technology for persons with disabilities and encourage others to undertake such research
• provide accessible information about assistive technology to persons with disabilities
• promote training on the rights of the CRPD to professionals and staff who work with persons with disabilities
• consult with and involve persons with disabilities in developing and implementing legislation and policies and in decision-making processes that concern them.
Ramifications of ratification for the rights of persons with disabilities in Australia
The essential implications of ratification of the CRPD by the Australian Government are as follows:
• Australia is bound by the obligations outlined in the CRPD including state and territory governments
• the provisions of the CRPD are generally within the legislative power of the Australian Government, however, some are within the legislative power of the state or territory governments
• the Australian Government has the power to legislation in relation to any matter contained in the CRPD even where it's an area within state or territory power
• where there is inconsistency between the CRPD and an existing State law, the Australian Government has the power and an obligation to override the relevant state or territory law.
Ideally, a legal statement of the rights of persons with disabilities should be made in Australia along with the enactment of detailed legislation. Further, the recognition and protection of the rights of persons with disabilities should be enshrined in the constitution or basic laws of Australia. Legislation alone, however, will not ensure persons with disabilities enjoy their human rights and State parties must therefore formulate effective policies and programs to transform the provisions of the CRPD into practical on the ground measures protecting the rights of persons with disabilities.
Implementing the CRPD also requires the allocation of sufficient financial resources and action by institutions to implement and monitor laws and policy. Specifically, the CRPD requires State parties to:
• designate a focal point or focal points within government for implementation
• establish or designate a coordination mechanism within government to facilitate action in different sectors at different levels
• establish an independent framework such as a national human rights institute, to promote and monitor implementation of CRPD.