Disability no justification for inequality

Geneva, Switzerland, may seem a long way away from the final week leading up to Australia's 2013 Federal Elections for Australians with disabilities to be engaging with the Government over their right to equality before the law. Yet, through our representative disability organisations, a small delegation is setting off this Friday to do just that.

In 2008 Australia was proudly among the first countries to sign and ratify the Convention on the Rights of Persons with Disabilities (New York, 30 March 2007) - [2008] ATS 12 (Disability Convention), which obligates it to take appropriate steps to ensure that the rights of people with disabilities are protected.

As with other multilateral human rights treaties, the Disability Convention requires that the ratifying countries (the 'state parties') to report to the Disability Convention's Committee every five years on their progress towards moving the society towards a truly equal community free from discrimination and poverty.

During the last week leading up to the elections it is Australia's turn. Australia has previously provided the Disability Convention Committee with a draft of its report and next week the Committee will once again hear from Australia before making its recommendations.

In the same week that the Disability Convention Committee hears from Australia's official delegation, it will also hear from Australia's Shadow Report delegation. A team of ten representatives from various disability representative organisations who will speak to the Disability Convention Civil Society Parallel Report (Shadow Report). Six of whom were chosen on merit through an expression of interest (EOI) process and four drawn from the Shadow Report's development project team.

This Shadow Report is far from a quickly patched-together report. Rather, it has been five years in the making and its development involved national consultations with persons with disabilities and the pro bono assistance of the Sydney based legal firm DLA Piper.

A critical issue for me

A critical issue for me, as a member of the six chosen through the EOI process, is equality before the law.

Why? It seems to me that equality before the law underlies all other human rights.

Without true equality before the law comes justification for treating people differently in a discriminatory manner. Nazi Germany in the 1930s and 1940s may come to mind as an extreme case in which Jews, homosexuals and people with disabilities were killed or mandatory sterilised. It may not be such an extreme case however. It is not commonly known that the practice of sterilising people with disabilities preceded the Nazis: in Northern American the practice commenced closer to the turn of the century and continued into the 1950s. Furthermore it has only been early this year that Australia has held its latest inquiry into whether parents of minors with intellectual disabilities should be permitted to have their children (most often girls) sterilised for non-therapeutic reasons.

There are some ways in which we treat people differently. For instance, a boy will not usually be permitted to play on a single-sex girls' basketball team or to use the women's change rooms. These types of limitations apply to all boys and men: not simply those who have a sight impairment or, like me, be in a wheelchair. The distinction is that certainty activities and facilities are set aside for the benefit of a particular gender. As a civilised society we recognise that there is a social good to be had in catering for particular groups in ways that accommodate for their biological and/or psychology needs.

How does inequality under the law affect other human rights?

As with other human rights treaties, the Preamble of the Disability Convention states that: 'the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination.' It is not possible to weaken or water down one human right because all human rights are universal, indivisible, interdependent and interrelated. (It is equally true that one human right cannot be more important than another.)

The second reason that I feel that legal equality is fundamental to all other human rights is that it establishes a baseline for negotiating compromises for the accommodation of conflicting human rights and for understanding notions of discrimination. Legal equality removes any misconceptions that some people are inheritably more equal than others (in George Orwell's terminology).

Legal equality is also fundamental to legal dispute resolution. Parties to a contract, for instance, must have equality under the law in order for the contract to be free from coercion and undue influence. Moreover, as people such as John Locke have argued, legal equality among adult citizens is critical for the legitimacy of any democratic system of government.

This does not mean, of course, that every single individual within the community will have the same legal rights as everybody else. Rather, it means that if two, or more, individuals find themselves in a very similar legal situation, then the law will be consistent in how it is applied to each individual.

Disability Convention, Article 12 (Equal recognition before the law)

Article 12 of the Disability Convention, as drafted by the General Assembly of the United Nations, recognising that all humans are equal before the law. More specifically, Article 12, paragraph 2, requires state parties to recognise 'persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life'.

Then paragraph 3 requires that state parties take appropriate measures to provide access to the support they may require in exercising their legal capacity'. Paragraph 4 then requires that the appropriate measures employed to assist the person to enjoy his/her legal capacity be specifically tailored to be as minimal as possible, designed to meet the individual's needs, and to be limited to the time that the individual needs the support. These supports are also to be designed to avoid conflicts of interest and the possibility of abuse.

Australia's interpretation of Article 12

In its National Interest Analysis for the United Nations Convention on the Rights of Persons with Disabilities (National Interest Analysis [2008] ATNIA 18 ) (par 17), the Australian Government stated that: Article 12 does not prohibit substituted decision-making arrangements that provide for decisions to be made on behalf of a person with disability where necessary, as a last resort and subject to the safeguards in Article 12(4).

This view is repeated in Australia's Declaration :

Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards

The problem with Australia's interpretative declaration

I see the Australian approach as being overly cautious. It seems to be concerned with the very small number of situations where unconscious patients and people with very profound disabilities are unable to be assisted with the making of any type of decision at all. While it is true that a very small number of people with will be incapable of any decision making, the overwhelming number of people, even with an considerable intellectual disability, can, with some degree of assistance, make decisions to do with our they wish to live their lives.

This is an important matter because the Disability Convention sets the benchmark for state parties to work towards. Moreover, Article 12 should set the ideal: an goal, which is not totally unattainable, but that is a compass to guide future efforts.

It would be worrying if Australia was using interpretation declarations to avoid being seen as having significant work to do. In the Shadow Report, the Project team states that in Australia:

38. A number of laws, policies and practices deny or diminish recognition of people with disability as persons before the law, or deny or diminish a person's ability to exercise legal capacity. Substitute decision-making arrangements vary from jurisdiction to jurisdiction and are a key source for significant and widespread breaches of human rights, especially against those who may need support in decision-making.

I suggest that the Australian interpretation declaration is unnecessary.

The purpose of Article 12, and in deed the Disability Convention, is to mitigate the effects of a person's impairment or disability. In Article 12(2), for instance, the right is to be able to enjoy legal capacity 'on an equal basis with others'. Clearly, this means that if my brother (who is not disabled) and I are brought into a hospital unconscious after a car accident, the general law of torts should determine the type of medical treatment that the doctors can administrate to each other of us. My physical disability or someone's intellectual disability should have no bearing on whether we get treated and who consents to want.

Short of being unconscious or totally lacking all capacity, people with impaired decision‑making capacity should be given the support described in Article 12. This seems to be consistent with the rules in equity law around undue influence and the like. Furthermore, it is consistent with the approach most rational individuals take when they require specialist expert advice.

Concluding comments

Legal capacity is often thought of as being bestowed upon us when we reach the age of majority: eighteen in Australia. And, while this is generally true with respect to voting and non-essential legal contracts, in practice our legal capacity grows with our maturity. Mature, though young in years, teenagers can consent to minor medical treatments and no one would seriously try to stop a teenager from entering into a legal contract to purchase a T-shirt. At the other end of the spectrum, the law courts have warned banks and other financial institutions that they have a positive duty of care to potential borrowers to ensure that they are informed of the consequences of entering into legal contracts.

The Australian legal system is not unfamiliar with the notion of supported decision-making and notions of conflicts of interest and duty of care.

Article 12 does not replace the Australian legal system in relation to this notion of supported decision-making: if anything, it builds upon it by dovetailing in with it.

There is also a risk that a developing state party may follow Australia's lead without having the other safeguards in place. Furthermore, by opting out of Article 12, Australia significantly reduces its opportunity to shape international law in this respect.

I support the Shadow Report in its call for Australia to withdraw its interpretative declaration.