Public hearing 18: The human rights of people with disability and making the Convention on the Rights of Persons with Disabilities a reality in Australian law, policies and practices, Virtual - Day 1

CHAIR:  Good morning, everybody.  I welcome everyone who is participating in or who is following these proceedings, that is, Public hearing 18 of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability.

I wish first on behalf of the Commissioners to acknowledge the Gadigal people of the Eora Nation on whose traditional lands the Royal Commission is sitting today and to pay our respects to their Elders past, present and emerging.  We also pay our respects to all First Nations people who are following this hearing.

OPENING ADDRESS BY CHAIR

The Royal Commission is not yet able to hold a public hearing which members of the public can attend in person.  However, we have made a little progress in that today, the Commissioners participating in this hearing are all in the Sydney hearing room.  I am joined by Commissioner Alastair McEwin AM and Commissioner John Ryan AM.  Senior Counsel Assisting the Royal Commission, Ms Kate Eastman SC, is also in the Sydney hearing room.

The subject of Public hearing 18, this public hearing of the Royal Commission, is the human rights of people with disability and making the Convention on the Rights of Persons with Disabilities a reality in Australian law, policies and practice.

As I noted in my opening for the Royal Commission's very first public hearing, the ceremonial hearing that was held in Brisbane on 16 September 2019, our Terms of Reference have a human rights focus.  The preamble to the Terms of Reference, that is the introductory paragraphs, expressly refer to the human rights of people with disability.  The preamble recognises that people with disability are equal citizens and have the right to the full and equal enjoyment of all human rights and fundamental freedoms, including respect for their inherent dignity and individual autonomy, and, that Australia has international obligations to take appropriate legislative, administrative and other measures to promote the human rights of people with disability, including to protect people with disability from all forms of exploitation, violence, abuse and neglect under the Convention on the Rights of Persons with Disabilities.

In our Interim Report which was published in October 2020, we stated that our inquiry is framed by human rights, and that we intended to apply an approach informed by human rights.  We made several important points relevant to determining what it means to adopt a human rights approach to our work.  I think it is useful to refer to these points and to make some additional observations.  I apologise in advance if this sounds like an introductory lecture on international and constitutional law, but that is the territory we are entering, at least in part.  Of course, what I am about to say is necessarily incomplete but it is designed to explain some of the background to the subject matter of this hearing.
 

First, unlike the United States, Australia does not have a constitutionally entrenched bill of rights.  One important reason why the framers of the Australian Constitution rejected the American model was the fear that a bill of rights would prevent full implementation of the White Australia policy, which in fact persisted in this country until the 1960s.  Given the recent American experience with a partisan Supreme Court interpreting constitutional guarantees, our founders might have been wiser than they knew.  In any event, what we have been left with is a few miscellaneous express Constitutional safeguards, but no protection in our Constitution, at least in the express words of the Constitution, of what we would understand now to be human rights.  Perhaps the provision that comes closest to a guarantee of human rights is section 116, which prevents the Commonwealth but not the states from prohibiting the free exercise of religion.  In practice, section 116 has proved virtually meaningless.

Second, not only does Australia lack a constitutionally entrenched bill of rights, we also do not have a federal or national legislative charter of rights.  Broadly speaking, the difference is that under a constitutionally entrenched bill of rights, courts usually have the power to declare legislation invalid if it infringes a guaranteed freedom, such as freedom of speech.  In other words, if rights are given constitutional status, the courts can override legislation passed by a democratically elected Parliament, and basically there is nothing that Parliament can do about it, short of a constitutional amendment.

With a legislative charter of rights, courts generally have power to declare that a law is incompatible with a particular human right set out in the charter, but the court does not have power to declare the law invalid.  It is therefore parliament that has the final say whether a law remains on the books, even if it breaches human rights.  In other words, under that system, Parliament, as the elected body of law makers, is supreme but in theory at least is accountable to the electorate if it is found to have ignored or contravened human rights.

Although the Commonwealth Parliament, the Australian Parliament, has never enacted a statutory charter of rights, three Australian jurisdictions have done so: the Australian Capital Territory, Victoria and more recently Queensland.  They have adopted the so called dialogue model of human rights.  Of course, each of these charters operates only within the particular jurisdiction, not nationally, and each is necessarily subject to valid Commonwealth laws, and that is because under the Australian Constitution, Commonwealth laws take precedence over any inconsistent state of territory laws.

We shall hear tomorrow from representatives of the ACT Human Rights Commission.  They will no doubt explain that most of the human rights, enumerated in the Human Rights Act 2004 of the ACT, are based on the provisions of the International Covenant on Civil and Political Rights, while two of the enumerated human rights are derived from the International Covenant on Economic, Social and Cultural Rights.  The ACT Charter, as I call it, makes no specific reference to the  
rights of people with disability, although the notes incorporated in the legislation state that prohibited discrimination includes discrimination on the ground of disability.  The position so far as the rights of people with disability are concerned is broadly similar under the Victorian and Queensland charters.

Third, when Australia enters into an international treaty such as the CRPD, the Convention on the Rights of Persons with Disabilities, it undertakes obligations under international law.  However, an international treaty entered into by Australia does not form part of Australian domestic law unless and until it is implemented by legislation.  Therefore, no one can make a claim in an Australian court for relief based on an alleged contravention by the Australian Government or, for that matter, the government of a state or territory of a human rights convention to which Australia is a party, unless a Parliament has enacted a law to give effect to the terms of the convention in Australian domestic law.

As many people following this hearing will know, under the Optional Protocol to the CRPD, to which Australia is a party, the United Nations Committee on the Rights of Persons with Disabilities is competent to receive and consider complaints on behalf of individuals who claim that Australia has violated provisions of the CRPD.  In fact, the UN Committee has upheld a number of complaints by Australian citizens but Australia is not bound to accept or implement decisions made by that UN Committee.

There are usually said to be seven core international treaties to which Australia is a party.  They are the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture; the Convention on the Rights of the Child; and, of course, the CRPD.

The Commonwealth Parliament under our constitutional system clearly has power to enact legislation to give effect in domestic law on a national basis to Australia's obligations under any international treaty, including human rights conventions.  That is because the Constitution empowers Parliament to make laws with respect to "external affairs" and the High Court has interpreted that to include the power to implement by legislation Australia's obligations under international law.

However, the Commonwealth Parliament has not fully implemented any of the core human rights treaties into Australian domestic law, although it has given effect to particular provisions.  For example, the Racial Discrimination Act 1975 gives effect to some of the provisions on the Convention for the elimination of all forms of racial discrimination.  Relatively little of the CRPD has been expressly implemented by legislation in Australia, whether by the Commonwealth, the States or the Territories.  The Disability Discrimination Act 1992 is consistent with the CRPD but its enactment actually predated Australia's ratification of the CRPD by about 17 years.  In 2009, the Disability Discrimination Act was amended to give effect to particular  
provisions of the CRPD, including by defining the term "discrimination" to incorporate a denial of reasonable accommodation to a person with disability.  That was a very important amendment and followed the terms of the CRPD.

One of the stated objectives of the National Disability Insurance Act 2013 is to give effect to Australia's obligations under the CRPD.  So it is certainly true that the CRPD has been implemented in Australia to some extent but not to a great extent.

Fourth, all multilateral international agreements like the CRPD and other human rights treaties are the product of lengthy negotiations and compromises among numerous parties, including the representatives of the very many nation states participating in the drafting process.  In a different context, the events in Glasgow over the last week or two are an illustration of that.

Compromises are also characteristic of much domestic legislation, particularly when a government does not command a majority in both houses of Parliament ---  remembering that Queensland has only one house.  But the compromises required to secure agreement to the text of the treaty, intended to bind 150 or more nation states, are of a much greater order, particularly when we recall that drafts must be negotiated and then translated into multiple languages.

The consequence of the negotiations and compromises required to secure agreement to the text of the human hights vonvention is often that the text uses very general or ambiguous language that lends itself to different interpretations, depending upon the perspective of the observer.  The differences in interpretation or understanding may persist for a very long time because international law has no mechanism that provides for an authoritative and binding interpretation of human rights conventions, including the CRPD.  Nor does international law provide for effective enforcement mechanisms for violations of the CRPD by States parties.

The Australian Government has submitted a background paper to the Royal Commission on the CRPD.  The background paper, which I think will be referred to during this hearing, appears to suggest that Australia is fully compliant with its obligations under the CRPD.  By contrast, many scholars and advocates disagree with the Australian Government, assuming that it does in fact say that Australia is fully compliant with the CRPD.  For example, Emeritus Professor Ron McCallum prepared a research report for the Royal Commission in which he identifies numerous articles of the CRPD that, in his view, Australia has not implemented in full or perhaps at all.  Professor McCallum's report, entitled The CRPD: An Assessment of Australia's Level of Compliance, has been published by the Royal Commission and is readily available to anybody who wishes to read it.

Fifth, even when human rights conventions have not been incorporated by legislation into domestic law, principles of international law can be used by courts to develop the common law and to interpret domestic legislation in a manner consistent with Australia's international obligations.  An example is the foundational Mabo, the native title decision in 1992.  In that case, Justice Brennan, later the Chief Justice of  
the High Court of Australia, recognised that international law is a legitimate and important influence on shaping the common law in modern circumstances, particularly where international law declares the existence of universal human rights.

A comprehensive study published in 2018 ascertained that Australian courts and tribunals have relied on the CRPD from time to time to support the interpretation of a law that is favourable to a person with disability.  One case in the Supreme Court of Victoria, for example, relied on article 12 of the CRPD, which recognises that people with disability enjoy legal capacity on an equal basis with all others in all aspects of life.  The court relied on article 12 to support an interpretation of the states guardianship legislation to enable a person who had an acquired brain injury and whose funds had been managed on his behalf to regain control of his own funds.

However, that study in 2019 also found that references to the CRPD by that time, in the reported case law at least, were very few and far between.  This may well reflect a lack of awareness among the legal community of the human rights recognised by the CRPD.

Sixth, as the CRPD recognises, human rights are a universal, interconnected and indivisible.  People with disability have human rights founded on the principles articulated in article 3 of the CRPD, including respect for inherent dignity, individual autonomy, the freedom to make one's own choices, independence and full and effective participation in society.

But it is necessary, however, to recognise that sometimes human rights can actually conflict with each other and the process of reconciling them can prove to be challenging.  Let me give you an illustration from a case decided by the Supreme Court of Canada, just over a week ago.  The case concerned a professional comedian who mocked the physical characteristics of a well known young singer.  The singer was a secondary school student and had significant physical disabilities.  The comedian also made disparaging comments of a different kind about other well known non disabled performers, but the disparaging comments he made about the young singer specifically concerned the disabilities of that singer.  The Supreme Court of Canada saw this as a clash between two fundamental freedoms guaranteed by the Quebec Charter of Rights: the comedian's right to freedom of speech, and the young singer's right to full and equal safeguard of his dignity.

A majority of the Supreme Court of Canada upheld a finding that the comedian had selected the singer to disparage him not because he had a disability but because he was a public figure.  In these circumstances, so the majority decided, the comedian's freedom of expression prevailed over the singer's right to the safeguarding of his dignity.  The point here is not whether the Supreme Court of Canada got it right --- as it happens, I do not think they did, but there again I am not a member of the Supreme Court of Canada --- the point is that human rights are not necessarily always absolute because they can conflict with other human rights.  In addition, human rights sometimes may be subject to limits, whether imposed by the language of a convention or the terms of domestic legislation.  The ACT Charter, in common  
with the Victorian Charter, for example, permits reasonable limits to be imposed on the enumerated human rights in the ACT legislation, provided the limits can be demonstrably justified in a free and democratic society.  That is a formulation that is often used in domestic legislation and in other countries.

Seventh, it is necessary to remember that not all human rights are created equal.  So called civil and political human rights are regarded as rights with immediate effect.  That is, a state party to an international convention recognising civil and political rights must adopt such laws and measures as may be necessary to give effect to those rights.  Some important rights recognised in the CRPD are plainly rights of immediate effect and therefore Australia is bound to implement them.  Others fall into the category of economic, social or cultural rights that are "progressively realisable".  Article 4.2 of the CRPD states the principle:

With regard to economic, social and cultural rights, each State Party [that means Australia in the present context] undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realisation of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.

I make two final points.  In each of the public hearings that we have held to date, we have identified the provisions of the CRPD that provide guidance on the issues examined at the particular hearing from the perspective of the human rights of people with disability.  The published Commissioners' reports on the public hearings incorporate references to the relevant articles of the CRPD.  For example, the Commissioners' reports on Public hearings 5 and 12 examined the experiences of people with disability during the COVID 19 pandemic, including the Australian Government's approaches to the roll out of vaccines to people with disability.  Each of those reports has been tabled in Parliament and contains findings and recommendations.  Each of those reports sets out the human rights framework created by the CRPD within which the responses of the Australian Government to the pandemic had to be assessed.  They included article 4.5 relating to consultations with people with disability; article 11, requiring state parties to take all necessary measures to ensure the protection of people with disability in situations of risk; and article 25, the right to enjoyment of the highest standards of health.  Each of those articles and others informed our assessment of the response of the Australian Government and contributed to the findings and recommendations made in the report.  I should say that all but two of the recommendations that were made in those reports have been supported one way or another by the Australian Government.

Ms Eastman in her opening remarks will provide more detail about the role the CRPD has played in other hearings and what we have learned from submissions and research about how human rights ought to be used to bring about a more inclusive society and protect people with disability from violence, abuse, neglect and exploitation.
 

The final observation is this: the observations I have made, none of which is particularly controversial, suggest that making the human rights of people with disability a reality in Australian law, policies and practices requires a great deal of thought.  There are many factors to consider, not only principles of international and domestic law, but the practical world of resources, institutions, regulatory and monitoring systems, community attitudes, competing rights and interests, and, as always, political processes.

Ms Eastman will shortly explain by reference to the evidence to be given over the next two days what might be involved in a human rights approach to promoting a more inclusive society for people with disability.

Yes, Ms Eastman.

MS EASTMAN:  Chair, are you taking the appearances?

CHAIR:  We can take the appearances now, certainly.

MS EASTMAN:  I appear as Counsel Assisting the Royal Commission.  I am instructed by the Office of the Solicitor Assisting and in the course of the preparation for this hearing I have been assisted by counsel David Hume and Kate Beattie.

CHAIR:  Thank you, Ms Eastman.  I'll take the appearances of other parties given leave to appear.  Can we start, please, with the Commonwealth of Australia.

MR KENNETT:  Commissioners, I appear with my learned friend Ms Palmer for the Commonwealth.

CHAIR:  Thank you, Mr Kennett.  Can we then have, please, the appearance for the State of Queensland.

MS McMILLAN:  Good morning, Chair and Commissioners.  My name is McMillan, initials KA, I appear with my learned junior Ms Clohessy, instructed by Crown Law.

CHAIR:  Thank you Ms McMillan.  State of NSW?

MS FURNESS:  If it please the Commission, my name is Gail Furness and I appear for the State of NSW, instructed by the Crown Solicitor's Office.

MR CHESTERMAN:  Commissioners, my name is Scott Chesterman, I appear on behalf of the State of Victoria.

CHAIR:  I think the State of South Australia has been given leave to appear but I don't know whether there is an appearance today.  Is there an appearance for the State of South Australia?  If not, if there is to be an appearance at a later stage, that  
can be announced at the appropriate time.

Yes, Ms Eastman.

OPENING ADDRESS BY MS EASTMAN

MS EASTMAN:  Thank you, Commissioners.

I also acknowledge and pay my respect to the traditional custodians on the lands on which we meet today.  I pay my respects to First Nations Elders past, present and emerging, as well as acknowledging all First Nations people following this public hearing.

This public hearing will focus on the human rights of people with disability and the implementation of the Convention on the Rights of Persons with Disabilities.  The CRPD, as I'll call it, it is an international law called a treaty or a convention.  The CRPD is the result of negotiations between countries, including Australia.  The CRPD sets out a range of human rights for people with disability and it also imposes legal obligations on Australia to ensure and promote the full realisation of human rights.

The CRPD has a number of general principles and they include the following: respect for inherent dignity, individual autonomy, including freedom to make one's own choices, and independence of persons; non discrimination; full participation and inclusion in society; equal opportunity and accessibility.  These principles guide the interpretation and the implementation of the specific CRPD rights the CRPD rights are minimum standards, not a final destination.

In Australia, international treaties like the CRPD are not automatically part of Australian law.  The rights in the CRPD cannot be enforced by Australian courts or tribunals.  One issue in this hearing will be to address how international human rights laws become law and enforceable in Australia.

Commissioners, when we talk about the CRPD, we are using a lot of abbreviations and a lot of legal terms.  I will do my best to try to speak in plain English, but some of these legal expressions come from the United Nations, so we have prepared a document which we hope will assist in working with the abbreviations and the various words.  The document which we have called "Abbreviations and Words" is on the Royal Commission's website, and I encourage everyone to access that document so you can follow along with some of the evidence over the course of the next two days.

Why has the Royal Commission decided to focus on the CRPD at this point in time?  As the Chair noted earlier, the Royal Commission's Terms of Reference identify the importance of human rights and the CRPD and it is critically relevant to the way in  
which the Royal Commission undertakes its work.  In addition to those parts of the Terms of Reference the Chair referred to, I also note that there is a requirement that the Royal Commission consider the following: innovative models of preventing, reporting, investigating or responding to violence against and abuse, neglect or exploitation of people with disability.  Looking at innovative models includes looking at ways the CRPD could be implemented.

The Chair has touched on the importance of a human rights approach, and I want to say something about a human rights approach.  A human rights approach assumes the existence of human rights but it goes beyond merely enshrining those rights in law.  Indeed, a human rights approach is proactive.  It doesn't wait to respond after a person's rights have been violated.  A human rights based approach uses the human rights principles to guide and evaluate the development and implementation of laws, policies and practices.  A human rights based approach requires an understanding of laws, systems and policies that affect the lives of people with disability.

Applying a human rights based approach for people with disability poses the following questions: first, does a policy or program have the main objective to fulfil human rights?  Have all policies and programs in all sectors and in all phases of policy making and programs been guided by the principles and standards derived from international human rights treaties such as the CRPD?  A further question is to ask, have the rights holders, and have their entitlements been identified, the rights holders being identified as the beneficiary of the rights set out in the CRPD?  Identifying rights holders is one step but a further step is to ask: have the corresponding duty bearers identified their obligations?

So one asks, do the policies and programs work towards strengthening the capacities of rights holders to make their claims and of the duty bearers to meet their obligations?  This means, for example, services should be designed and delivered in a manner that respects the recipient's rights; services that do not pay attention to rights may unintentionally result in future rights violations --- ideally that should be avoided.  A human rights based approach is person centred --- people with disability are the rights bearers rather than passive recipients.  They should be included in the design and the decision making.  People with disability are active claimants of rights in relation to the duty bearers.  Those duty bearers may be governments, private sector organisations or anyone providing services and supports.  It has been said that the real potential of human rights lies in its ability to change the way people perceive themselves vis a vis the government and other actors.

A rights based framework provides a mechanism for re analysing and renaming problems, as rights violations, and as such something that should not be tolerated and should be addressed.

Implementing a rights based approach ensures there is a focus on respecting the rights of people with disability but, most importantly, accountability on the duty bearers.  Commissioners, we will consider what accountability means in the context of implementing the CRPD, and I note there are a range of mechanisms.  You will be  
aware, for example, of the 2019 UN Disability Inclusion Strategy, which applies to the work of the United Nations, and to some more recent indicators on the CRPD implementation released by the Office of the High Commissioner on Human Rights in November last year.

Can I now turn to the influence of the CRPD on the Royal Commission's work to date.  The influence of the CRPD can be seen in the 13 research papers published on the Royal Commission's website.  These research papers address the human rights of people with disability, and there are two specific research papers that I will focus on in the course of this hearing.  The first is our first project and our first research paper published.  It was prepared by Rosemary Kayess and Therese Sands in 2020 and it is entitled "Convention on the Rights of Persons with Disabilities: Shining a light on Social Transformation".  This report was commissioned to describe the international human rights context in which the Royal Commission operates.  You will shortly hear from Ms Kayess and Ms Sands.  Ms Kayess is currently the Chair of the Committee on the Rights of Persons with Disabilities.  The Committee monitors the CRPD.  Ms Kayess and Ms Sands will tell you about their research, their findings and the issues Australia needs to address to better implement the CRPD rights in Australia.

The second project but our second report was prepared by Emeritus Professor Ron McCallum in 2020.  His report is "The United Nations Convention on the Rights of Persons with Disabilities: an assessment of Australia's level of compliance".  Professor McCallum was the first Chair of the Committee on the Rights of Persons with Disabilities.  His report is a detailed analysis of how Australia has complied with its international obligations.

Commissioners, as you are aware, Australia is required to prepare reports for the CRPD Committee, explaining how Australia is ensuring and promoting CRPD rights in Australia.

When the Committee receives the Australian report, it reviews the report, it asks questions of the Australian Government officials and it publishes its own report called "Concluding observations".  It is, in effect, a report card on whether Australia is meeting its obligations.  You will hear about Australia's performance and the role of the disability advocacy groups in this process, sometimes called constructive dialogue.

The CRPD has also influenced the work of public hearings.  The CRPD has been raised in a number of public hearings to date.  Commissioners, may I remind you of some of the ways the CRPD has arisen in the public hears.  At Public hearing 3 concerning the experiences of people with disability in group homes, that was held in Melbourne in December 2019, you heard Naomi Anderson, a solicitor from Villamanta Legal Centre, and she said:

..... rights don't really count for much if they are not legally enforceable.  If there is nothing you can do to enforce that right, it actually may as well not  
exist.

At the same hearing, Dr Colleen Pearce, the Victorian Public Advocate, was asked about translating human rights from abstract concepts to the practical implementation of those rights.  She was asked, can these rights actually make a difference, and she said this:

I think it makes a difference in the way we approach our work and how we make decisions, how we involve people with disability in work of the office .....

There referring to the Office of the Victorian Public Advocate, and she said this:

..... I think it is in those very small intangible ways that we see differences in the office and the work we do.

At Public hearing 4 concerning the health care and services for people with cognitive disability, held at Homebush NSW in December 2020, Professor Julian Trollor made note of article 25 of the CRPD:

The right of Australians with disabilities to 'enjoyment of the highest attainable standard of health without discrimination on the basis of disability .....

He said this:

In my opinion, realising this goal for people with intellectual disability and for autistic people requires clinicians, health systems and policies that understand and respond adaptively to the complex and multifaceted impact of these developmental differences.

At Public hearing 5, concerning the impact on people with disability during the COVID 19 pandemic held in August last year, you heard from the then Special Rapporteur for People with Disability, Ms Catalina Devandas.  She talked about the importance of the CRPD rights being central to the responses of governments during the time of the pandemic.

At Public Hearing 9, concerning the systemic barriers for people with disability seeking open employment, Mr Ed Sianski told you that after 25 years of his son trying to get a job, it had convinced him that there was, as he described, a cul de sac of neglect.  He said this:

It is shameful.  I didn't realise that Australia had actually signed up to a ..... Convention on the Rights of People With Disability, and at paragraph 27 of that document, says that everyone has got a right to a job of some kind.

At the same Public Hearing you heard from Dr Ben Gauntlett, Australia's Disability Discrimination Commissioner, and he said the CRPD was the primary document which he needed to refer to when discharging his functions as the Disability Discri 
mination Commissioner.

This is not an exhaustive list.

The CRPD has also been raised in submissions, private sessions and responses to issues papers.

In April 2020, the Royal Commission released its issues paper on rights and attitudes.  The Royal Commission wanted to understand the laws, policies, practices and supports that are needed to reduce the risk of violence, abuse, neglect and exploitation and referred to the lack of rights awareness among people, organisations and governments, and also noted the negative attitudes that can shape laws, policies and practices that stigmatise and discriminate against people with disability.

The Royal Commission received 236 responses to the Issues Paper and an overview of those responses was published by the Royal Commission in April this year, and it is on the website.  A key theme emerging from the responses was that both people with disability and the broader community lack awareness of the rights of people with disability, which can enable violence, abuse, neglect and exploitation of people with disability.  The submissions addressed concerns that the rights to the full access to education, health, legal services, employment, as well as other relevant areas, was not reflected in Australian law.  It was suggested that the current laws in Australia are outdated and inadequate, and fail to acknowledge and respect the fundamental freedoms that people with disability should have or provide adequate protection from systemic governmental discrimination, abuse, violence, neglect and exploitation.

The importance of the CRPD in guiding transformation of law and practice was emphasised in the submissions, noting that the CRPD provides a human rights lens through which the character and impact of social wrongs, including marginalisation, segregation and exclusion of people with disability in all spheres of society may be understood and addressed.  It was suggested that the CRPD provides a blueprint and a framework through which to transform societies from a state of disability exclusion to one of disability inclusion.

The submissions included suggestions for change and a way of translating Australia's obligations under the CRPD into Australian law.  We will address some of those suggestions during the course of the hearing.

Commissioners, in June last year you received the paper from the Australian Government, described by the Australian Government as a background paper that set out Australia's position and interpretive approach to the CRPD.  A copy of that paper is on the Royal Commission's website.  The Government said that the paper was intended to assist the Royal Commission and focus on the Australian Government's interpretation of its obligations under the CRPD.  We will examine the approach taken by the Australian Government at this hearing.

It is for these reasons that it was opportune for the Royal Commission to conduct this  
short hearing.  This very short hearing over two days will examine the relevance and significance of the CRPD to people with disability in Australia.  We will pose the question: how can international human rights law be more than a slogan and a symbolic gesture?  What needs to happen to turn rights into reality for people with disability?

May I stress that over these two days we will not seek to answer all of the questions.  The purpose of this hearing is to understand how international human rights can become part of Australian law, practices and policies and the way in which the CRPD rights could be stronger and more effective in Australia.

Can I turn to this hearing.  As I said, you will shortly hear from Rosemary Kayess and Therese Sands.  Commissioners, at Public hearing 3, you may recall that Ms Kayess provided us with a very clear and extremely helpful overview of the operation of the CRPD, so I will not ask Ms Kayess to repeat her evidence from Public hearing 3, but we will focus on the research paper.  I will ask Ms Kayess and Ms Sands about a number of issues arising from their research.  They will tell you the CRPD has modified, transformed and added to the traditional human rights.  They challenge the suggestion that the CRPD does not create any new rights and they will tell you that the CRPD has codified a human rights model of disability.  This model rejects the historical treatment of people with disability on the basis of exclusion and segregation, that people with disability should enjoy their rights as citizens, and a person's disability is not a justification for the denial of rights.

We will have a break after hearing from Ms Kayess and Ms Sands.

Then, Commissioners, we will turn to examine the awareness of the CRPD in the broader community, and some examples about how people with disability can understand and know more about their rights.  Mr Ian Cummins and Ms Rachel High from Our Voice SA have pre recorded some evidence from a discussion with me last week, and they will tell you what human rights means for them.

Commissioners, we have also had an opportunity to talk to Children and Young People with Disability, CYDA, and over the course of the coming weeks we will ensure that you can also hear about the experience of young people and their approach to human rights and the CRPD.

Later today, you will hear from Ms Natalie Wade.  She is a respected legal practitioner with an established background in human rights law and advocacy, and she has particular expertise in disability rights and public law.  She will tell you how the CRPD is relevant to her work, her experience of how people with disability and those people and organisations responsible for supporting people with disability apply the CRPD.  She will also tell you about some of her law work and projects.  In fact, her book was published late last week, and she will share her recent publication with you.

On the topic of advocacy, Commissioners, in the Interim Report you noted the  
importance of advocacy.  You said:

Disability advocacy is acting, speaking or writing to promote, protect and defend the rights of people with disability.  Independent advocacy by people with disability plays an important role in implementing and monitoring the CRPD.

You will hear about the work of the Disabled Peoples Organisations, DPOs, and the Disability Representative Organisations, DROs.  Damian Griffis, June Riemer from First Peoples Disability Network Australia, FPDN, will tell you about the experience of First Nations people and the extent to which the CRPD addresses the rights of First Nations people with disability.  They will be joined by Kelly Cox and Frances Quan Farrant from People with Disability Australia, and you will hear about their advocacy at both an international and local level.  We will examine the relationship between the range of international human rights laws, Chair, that you have described, and those specifically concerning the rights of First Nations people.

We have very kindly been assisted in the preparation for this hearing by a discussion with the Australian Federation of Disability Organisations, AFDO.  AFDO and some of its members shared their experiences with the CRPD and the nature and extent of their advocacy work in various areas.  They have highlighted the importance of DPOs and DROs being funded to be able to deliver effective advocacy services and supports.  They told us that people with disability may have no knowledge about their rights, and they have said that it is often until a person with disability is at a point of crisis that they may become aware of their rights.

Commissioners, we need to address the relationship between international human rights treaties like the CRPD and Australian law.  You will hear later this afternoon from Emeritus Professor Andrew Byrnes, who is one of Australia's leading international human rights lawyers.  He will tell you about the nature of international treaty law, how it converts into Australian law, and we will talk to him about some of the concepts and interpretation of rights.  We will also ask him about the Commonwealth's Parliamentary Joint Committee on Human Rights and its role in scrutinising proposed laws against the international treaties, including the CRPD.

Commissioners, you noted earlier the models called dialogue models, and you will hear tomorrow from Dr Helen Watchirs OAM, the President and Human Rights Commissioner for the ACT Human Rights Commission, and Ms Karen Toohey, the Discrimination, Health Services, Disability and Community Services Commissioner, about the experiences of the dialogue model in the ACT.

We need to look at other models and consider both the strengths and weaknesses of other models so that we can consider a range of perhaps innovative approaches for Australia.

Commissioners, it is well accepted that meeting human rights obligations on a day to day basis and in day to day life is not just the responsibility of governments.  The private sector and business impact on the rights of people with disability in a  
wide range of areas: education, employment, the media, technology, superannuation, insurance, transport, housing and access to premises.  Specifically, the National Disability Insurance Scheme Act refers to the CRPD and other international human rights treaties.  Commissioners, as you are aware, the NDIS Act is a model that regulates government agencies but also private corporations that provide supports and services to people with disability.

Commissioners, you may recall at Public hearing 13 that you heard that the directors of Sunnyfield Disability Services received training in relation to the CRPD and the relevance of the CRPD to the work of that particular service provider.  So it is an important opportunity to consider how the CRPD rights apply in Australia with respect to corporations and businesses; in effect, the private sector.

Over the past 20 years there has been an increasing movement to hold corporations accountable if business decisions and their actions impact on the human rights of individuals.  You will hear tomorrow from Professor Justine Nolan, the Director of the Australian Human Rights Institute at the University of New South Wales, about recent developments for business and human rights, including modern slavery laws.  Professor Nolan will address how a human rights approach has developed through the 2011 UN Guiding Principles on Business and Human Rights, that was unanimously endorsed by the UN Human Rights Council.  She will explain how the Guiding Principles operate.  People with disability do not feature prominently in those Guiding Principles.  But having said that, in 2017 the United Nations and the International Labour Organisation released a Guide for Business on the Rights of Persons With Disabilities to assist business respect and support the rights of persons with disabilities and benefit from inclusion.  So we will touch on some of the work done by the International Labour Organisation.

Commissioners, the participation of people with disability in organisations, including government, corporate and the business world, is also an important consideration.  The participation of people with disability is one of the core tenets of the CRPD.  People with disability should have a seat at the table when decisions about them are being made.  You will hear tomorrow from Christina Ryan, the Founder and Chief Executive Officer of the Disability Leadership Institute, about how the CRPD and a rights based framework applies in the context of leadership, and particularly she will address article 29 of the CRPD concerning participation in political and public life.

Commissioners, finally, there will be an opportunity to hear from the Australian Government.  We expect that you will hear from Sue Robertson, the First Assistant Secretary, International Division of the Attorney General's Department; Mr Andrew Walter, the First Assistant Secretary, Integrity and Security Division of the Attorney General's Department; and Luke Mansfield, Acting Deputy Secretary, Disability and Carers, in the Department of Social Services.

We will ask the representatives of the Australian Government about a range of issues arising from the background paper and the implementation of the CRPD in Australia.  The government has provided answers to a series of questions that we had asked  
them prior to the hearing.

The issues that we will explore with the Australian Government officials will include the following: the steps Australia takes when it accepts international treaty law obligations such as the CRPD; the Australian Government's understanding of what the CRPD obligations would mean for Australia at the time it ratified the CRPD in July 2008; at that time, whether the Australian Government undertook a review of Australian laws and practices to determine what needed to be addressed when the CRPD obligations commenced; we will ask the Australian Government about its approach to interpreting and understanding the CRPD rights, including such concepts as what is "progressive realisation", and what is a "margin of appreciation".  We will ask the Australian Government about its understanding of and application of a human rights based approach to address violence, abuse, neglect and exploitation of people with disability.  We will ask about the impact of parliamentary scrutiny processes on proposed Australian laws that directly and indirectly impact on people with disability.  We will ask the Australian Government how it has developed, if it has a focal point, and how that operates across the government.  We will ask about the ways the CRPD has been incorporated into Australian laws, policies and practices, including the NDIS and the National Disability Strategy.  We will ask the Australian Government about the way it has developed awareness of CRPD rights, including education about human rights.  We will ask the Government about how it includes people with disability, the DPOs and the DROs, in the way it seeks to implement the CRPD.  We will ask the Australian Government whether it considers the CRPD rights apply to corporations and private sector entities and, if so, what it has done to date in relation to the private sector.  We will ask the Australian Government how it measures and evaluates its compliance with the CRPD within specific agencies and departments concerned with the CRPD and more generally.  We will ask the Australian Government's views about the gaps in the protection of the CRPD rights in Australia.  We will ask about the responses to the CRPD Committee's concluding observations and its responses to complaints made to the CRPD Committee under the optional protocol.  This is an opportunity for a person who has exhausted all of their domestic remedies to petition or make a complaint to the international body.

Finally, we will ask Australia whether it considers the experiences of other jurisdictions should be considered to better protect, respect and fulfil the CRPD rights.

Commissioners, I conclude by observing a comment made in response to the Rights and Attitudes Issues paper.  The person who made the submission said this:

The CRPD should become more than just an aspirational exercise but something that is genuinely adhered to in day to day life.

Commissioners, a human rights approach means that people with disability are entitled to voice their concerns and hold the duty bearers accountable when their rights are not respected.
 

For people with disability, a human rights based approach affirms they are entitled to enjoy all human rights and simply live a life free from violence, abuse, neglect and exploitation.  It is a right to be included.

Commissioners, I will conclude by reminding those following the proceedings about the protections for witnesses in the Royal Commissions Act.  I have said now on 15 occasions, section 6M provides a protection to any witnesses, and outlines the consequences for those who engage in any conduct that uses, causes, inflicts or creates any disadvantage to a person on account of that person having appeared as a witness before the Royal Commission, given evidence or produced documents to the Royal Commission.

Thank you, Commissioners.  We will start by turning to Ms Kayess and Ms Sands.

CHAIR:  Thank you, Ms Eastman.

Good morning, Ms Sands, we are just waiting for Ms Kayess to appear on the screen.

MS SANDS:  Thank you.

MS ROSEMARY JANE KAYESS, CALLED

MS THERESE SANDS, CALLED

CHAIR:  Thank you both very much, Ms Kayess and Ms Sands, for coming to the Royal Commission to give evidence.  We appreciate the assistance you are giving both now and on previous occasions.  I understand that each of you will take the affirmation.  Therefore, if you would be good enough to follow the instructions of my associate, who will administer the affirmation to you.  Thank you.

MS EASTMAN:  Chair, I think that has all been done before coming.

CHAIR:  In that case we don't need to.

Ms Eastman will ask you some questions.

EXAMINATION IN CHIEF BY MS EASTMAN

MS EASTMAN:  Commissioners, you have in the tender bundle a copy of the comprehensive CVs from both Ms Kayess and Ms Sands.  I wish to briefly introduce them and I'm keen to get into the questions.
 

Ms Kayess, may I start with you.  Welcome back for the third time giving evidence in this Royal Commission.

MS KAYESS:  Thank you.

MS EASTMAN:  You continue to be a teaching fellow and senior lecturer in the Faculty of Law at the University of NSW?

MS KAYESS:  Yes, that's correct.

MS EASTMAN:  But much of your work is taken up with chairing the United Nations Committee on the Rights of Persons with Disabilities?

MS KAYESS:  That's correct, yes.

MS EASTMAN:  You also are the Chair of all of the UN treaty bodies, so you are the Chair of the Chairs; is that right?

MS KAYESS:  That is correct.  Unfortunate terminology, but yes, it's correct.

MS EASTMAN:  You have worked with Ms Sands to produce the research paper for the Royal Commission back in 2020; is that right?

MS KAYESS:  That's right.

MS EASTMAN:  Ms Sands, can I turn to you now.  Thank you for participating in the hearing today.  You are presently working as the Research and Policy Coordinator for Ms Kayess in her capacity as the Chair of the Committee on the Rights of Persons with Disabilities?

MS SANDS:  That's correct.

MS EASTMAN:  You have also had a role working in a number of the disability advocacy organisations; from 2007 to 2019 you were the Co Chief Executive Officer of People with Disability Australia; is that right?

MS SANDS:  That's correct.

MS EASTMAN:  You have had a long history working in the disability sector and in disability advocacy?

MS SANDS:  That's right.

MS EASTMAN:  You have also participated in preparation of the research report for the Royal Commission with Ms Kayess?

 
MS SANDS:  That's right.

MS EASTMAN:  I want to dive straight into the research report which is on the Royal Commission's website.  In that report, you say --- for those following, this is at page 9 --- that:

The social model was the catalyst for the shift in how disability is conceptualised, which has led to the translation of human rights in the context of disability embodied in the CRPD.

In your report, you set out that there have been different models in understanding disability.  You say that:

While the CRPD is based on a social model of disability, it goes further by codifying a human rights model of disability.

I want to start by asking you about that.  Does that mean that the CRPD is a really different type of international human rights treaty to some of the other treaties that protect human rights?  Who would like to go first?  Maybe Ms Kayess, I'll ask you.

MS KAYESS:  I'm happy to take that one, Kate.  Look, no, it doesn't mean that the CRPD operates any differently to any of the other core human rights treaties.  In their way, they all set out the way the power relationship between certain groups within our community operates, so the thematic instruments such as the International Convention on the Elimination of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, set out concepts around racism and sexism, and identifies the ways in which we as societies, as communities, as nations, should operate as a means to eradicate racism and sexism.

CRPD is no different.  But what CRPD does is it addresses the concepts around what people discuss now as ableism or, if you look at it from a different perspective, disableism, and the social model of disability was the catalyst for a lot of that development, that conceptualisation.  Now, the social model needs to be understood in the context within which it is developed.  It emerged in the early '70s from activists within the UK movement, and a few of them were academics.  And so from their academic background, they looked at and they considered how the phenomena of disability is operationalised within society.  So we weren't talking about disability or what it fundamentally is, is impairment, or, even more fundamentally to that, it's about human diversity, so the diversity of the human condition and how that interacts with the way society is structured.  And so what the social model does is it identifies and helps to understand that a lot of what people experience, people with impairments experience, are barriers that are within the social structures, not necessarily inherent just to themselves.  And so the social model was about framing a way of understanding the phenomena of disability.  And the reason it plays such a big role in terms of the negotiations and the shift that is outlined within the CRPD is that what that understanding does is highlight and identify the barriers and the discrimination that people with disability experience.  And so it became a framework  
of how structures needed and states needed to transform to be able to deliver the rights of persons with disabilities.

MS EASTMAN:  Is that the case, if we look at some of the earlier international human rights treaties developed in the 1960s, is there is no mention of disability specifically in those treaties.  Has broader human rights served people with disability well?

MS KAYESS:  Well, that was the fundamental point.  Disability has always been part of the non exhaustive framing of international human rights.  So from the very genesis within the UDHR, the Universal Declaration on Human Rights, the forerunner to the international covenants and then the international conventions, sets out discrimination in terms of a non exhaustive list, so a suggested list of personal characteristics, and then it includes other status.

Disability has been addressed under the framing of "other status".  But disability, and the experience for people with disability, continued to demonstrate that human rights frameworks, the international human rights law, wasn't succeeding in protecting and fulfilling the rights of persons with disabilities.  Persons with disabilities were continually recognised amongst the poorest of the poor, they were segregated and isolated from social participation.  The cyclical relationship between disability and poverty was recognised and that cyclical relationship that disability creates poverty and poverty creates disability just didn't seem to be able to be broken.

So there was significant development of what's called soft law to try and address that failure of the International Bill of Human Rights and the other thematic instruments not being able to cut through in the disability area.  But the soft law, because of its declaratory and consensus nature, didn't have any binding mechanisms to be able to have a much more significant impact with states to implement measures to be able to address disability.

CHAIR:  Ms Eastman, I'm sorry to interrupt, but I am informed that neither Ms Kayess nor Ms Sands have actually taken the affirmation.  Is that right?

MS EASTMAN:  I'm sorry, Chair, my understanding is all of the witnesses will be administered their oath and affirmations before they come on to the live feed.  If that is hasn't happened, then we will need to do that.

CHAIR:  Yes, that's what I have been informed.  Perhaps Ms Kayess and Ms Sands you can tell us if you have taken the affirmation, as preparatory to giving evidence today.

MS SANDS:  I have indicated my preference for the affirmation, but ---

CHAIR:  No, but have you taken the affirmation?

MS SANDS:  I haven't as yet.
 

CHAIR:  Of course, it's not your responsibility or your fault, but we must adhere to the form, so if you don't mind, I will ask my associate now to administer the affirmation.  If you would be good enough to follow the instructions.  I apologise for the interruption and for the inconvenience.

MS ROSEMARY JANE KAYESS, AFFIRMED

MS THERESE SANDS, AFFIRMED

CHAIR:  Thank you very much.  I will ask Ms Eastman to resume her questions.

MS EASTMAN:  That takes me to the next point, and one of the issues in drafting the CRPD was whether there should be a fixed definition of disability for this Convention or whether it should be left open to deal with evolving concepts.  Can I ask you both about how and why would we need to define disability in the Convention?  Can we work with the Convention and understand rights without a fixed definition?  As you know, lawyers like everything to be defined.

MS KAYESS:  The debate around the definition was really strong at the Convention and whilst it was a strong theme that went through the Convention negotiations, it was also very divided on whether there should be one or whether there shouldn't be one.  The problem with definition is definitions can either include or they can exclude.  So the Convention needed a way to be able to address a concept that was about human diversity.  And so a lot of the discrimination of people with disability experience --- that people with disability experience is because of arbitrary lines drawn about the notion of human diversity.  So we operated the society with this concept that there is this able norm, that there is this state of being, this state of the human condition, that is normal, and the further you move away from that or if anything is different, that it is seen as not normal or abnormal.  These are very arbitrary lines that are drawn and they will be very different in different states and different countries.

So whatever way you tried to frame the definition for the Convention, you were going to exclude people.  And there were States --- I will be quite honest --- it's not an international secret --- there were States that were actively trying to get a very narrow definition so they can exclude very specific diagnostic groups.  And so trying to get it as broad as possible was about going back to the roots of what the social model is about and recognise disability as a phenomena that stems from the interaction of impairment with the social environment and what that meant was recognising that that environment could change, so the concept and the scope of disability will change, and that it was evolving, and the preamble uses that --- the preamble and the purpose in the Convention used that concept of disability being an evolving concept, and what we understand disability in terms of Australia in 2021  
will be very different to how the concept of disability is understood in 20 years' time or 50 years' time, or how it is understood in Zimbabwe in 2021.

MS EASTMAN:  Related to that, you have said in the report that the CRPD is not static but reflects the nature of all international law, which is progressively adapted to address new situations and realities over time.  When you talk about the CRPD not being static, does that mean that the nature of the rights change or is it the way in which the existing rights apply in particular situations, as those situations arise?

I'm happy, Ms Sands, if you want to talk about this.  Do you want to talk about that in the sense of it not being static and does it mean new or different rights or what does it mean?

MS SANDS:  It doesn't mean new rights.  It's about recognising that circumstances and situations in political, cultural and social contexts change and are constantly changing and that governments or states parties, those countries that are (audio distorted) need to meet to be able to apply measures, to meet their obligations under the CRPD within that.  So this is the case for all international human rights law and the application of that law, the committees that monitor the law recognise the different cultural, sociopolitical contexts of all countries when they are doing that, they under understand there are different resource constraints, different factors that impact on the development of measures and the implementation of those measures to meet human rights.  So the rights themselves don't change.

I suppose an example of this is when we consider women's rights and we consider that previously the legal capacity of women was limited, they needed to change their name whether they were married, often their husbands controlled the inheritance, and rights to property, legal guardianship of children, et cetera; there were a number of societal understandings of how women were conceived in society.  Now, that has largely changed and it is expected that governments will identify and implement measures to address that situation that we no longer accept that women would be denied their legal capacity in relation to men or that would make decisions for women, for example, et cetera.

So, generally speaking, in terms of the CRPD, we would expect a similar thing for States to recognise that they need to consider how to apply measures over time to meet, progressively meet the different realities for people with disability that they are trying to address in terms of their rights.

MS EASTMAN:  Could I ask both of you: does that also mean that when we look at the States' obligations or governments' obligations under the CRPD, does it mean that governments are always striving to look at ways of better protecting rights or is it just a matter for the government to say, "We have signed up to this Convention, we have had a look at our rights for people with disability in 2008, everything looks quite good, tick, Convention done"?  Ms Kayess?

MS KAYESS:  Well, no.  Things conceptually change.  Yes, there is a degree, when  
you look at some of what are understood as the negative rights, so they are the rights of non interference, but even rights of non interference these days are recognised as holding positive duties on states.  So the positive duties to ensure the exercise of certain human rights, new situations will emerge and states will need to respond to them, different groups will come forward, and the discrimination that they experience and the inequality that they experience will be understood more clearly, and so States need to respond to that.

Climate change is an example.  It is changing the nature of our environment, and so human rights will morph and change with that experience as economies change, the social structures change, so there could be new emerging areas of I shall quality and discrimination that need to be addressed.  So human rights is not a static thing.  Our societies are not static.  We as cultures are not static, we are not time locked in that sense.

So whilst the rights of negative --- the rights of non interference, so not interfering in the legal --- not placing legal impediments in front of groups based on personal characteristics may be static and that you should basically, once you repeal a law, stopping people from particular groups voting, once you repeal that law and avail the right to vote, you should leave it, yes.  That does have a static element to it.  But us as societies, we are not static and so human rights should also be seen in that way.

MS EASTMAN:  You have said in the report that the CRPD must be understood as the sum of its parts with all of its components interacting with one another, rather than in isolation from one another, and then you give some examples.  Am I right in understanding from the report that if you consider the CRPD as the sum of all of its parts then you have to be mindful of how all of those rights work together when you are looking at systems, practices and policies to implement the CRPD rights?

MS KAYESS:  Like any policy area, things don't operate in isolation.  So for you to be able to engage with the health system, you need to be able to exercise a variety of aspects of your life.  Legal capacity is one, you need to be able to consent to certain medical interventions; you need freedom of movement; you need to be able to get to the health system to interact with the health system; there are accessibility issues in terms of being informed about the health system.  And so you can't look at particular areas in isolation and expect people to be able to participate effectively within those areas.  So looking at rights more holistically, it comes back fundamentally to the human rights are indivisible, they are indivisible, you can't look at rights in isolation to each other.

MS EASTMAN:  Is it right in understanding that once you consider the CRPD as the sum of its parts, what sits right underneath all of that is these concepts of equality, and in your report you have addressed the different ways in which we understand equality and highlight transformative equality as a particular feature for the CRPD.  So can I ask you some questions about that.

When we are talking about equality, there are lots of different ways of describing it.   
There is formal equality, which is if we treat everybody exactly the same way, then people are equal.  Then we have substantive equality, which recognises that if you do treat people exactly the same way but people are different and start from different positions, actually treating people the same way will be not achieving equality.  So substantive equality says you treat people differently perhaps to achieve the same outcome.  That's substantive equality.

In this area, you have said there's a third way of looking at equality, which is transformative equality, which is about changing the structures and systems with a variety of positive measures.  It dismantles existing power relationships, and in this sense transformative equality can be viewed as addressing the underlying power relations that underpin ableism.  So I need some help in understanding "transformative equality".  Can I ask you that first.  And then, if it helps, what does that look like in a practical setting?

CHAIR:  I need some help in identifying the page.

MS EASTMAN:  This is page 29, and over to page 30 of the report.

CHAIR:  Thank you.

MS EASTMAN:  Who would like to take the question on transformative equality and how we should be thinking about that in a very practical way for Australia implementing the CRPD rights?

MS KAYESS:  I think we have both got stuff that we can contribute to this.  I might start, if that's okay, Therese.

MS SANDS:  Sure.

MS KAYESS:  I suppose if you put it that we see it as a third way, I think it is a way of understanding substantive equality as it's been understood in a disability context and within the CRPD context, in the sense that it gives us what the Committee has talked about in terms of a human rights model of disability.  Now, transformative equality, a bit like substantive equality, it comes back to an academic exercise of trying to break down the component parts and understand how social relationships work and how we can work with them to achieve certain outcomes.

So substantive equality has been looked at by a legal academic by the name of Sandra Fredman from South Africa, and she has developed a model or a theory around substantive equality being based on four core elements, and those four elements include a redistributive element to address socioeconomic disadvantage, a recognition of dimensions to combat stigma and prejudice and recognise human dignity and intersectionality, and a participant dimension to re affirm the humanity of people's social inclusion and political voice, and a transformative dimension to accommodate difference in structural change to make space for difference as a matter of human dignity.
 

Now, there are various ways you can look at that.  For me, to keep it in my head, the way it works for me is that if we address redistribution and that we give recognition and it combats stigma, and people do have a voice, you then can drive the transformation that's required to achieve human rights.  But it's essentially just a framework for understanding about how to achieve equality.

As Therese would tell you, the fundamental underlying thing about this is that it becomes a relationship with non discrimination and inequality.

MS EASTMAN:  Ms Sands, can I ask you about that and whether there are any Australian laws that incorporate that concept of transformational equality?

MS SANDS:  Just to add on to what Rosemary said, and just to say that the Committee on the Rights of Persons with Disabilities, in their General Comment number 6, has a section on the human rights model of disability and what they call inclusive equality, which is really transformative equality, but they use the term "inclusive equality".  So the way that I would see it is that you have to understand transformative equality as being underpinned by that human rights model of disability; that is, that there is a recognition that impairment is part of human diversity, and as the CRPD says, is no longer the basis, can no longer be the basis for the denial or limitation on human rights.  So all human rights apply equally to all people.

And so when you are looking at that concept of equality, that means that those elements that Rosemary pointed out, the transformative aspect of it is critical in recognising that particular law, policy, practice frameworks don't actually --- sorry, are the basis for the denial and limitation on human rights in Australia, and so they are not geared towards transformative equality.  So, for example, guardianship systems, mental health laws, et cetera, all limit the human rights of people with disability.  So they limit them based on impairment, and that would go against transformative equality.  That would demand you to look at those systems and say, well, that's no longer applicable under the CRPD to deny or limit human rights, so we need to apply (audio distorted) before the law and decision making, non coercive mental health treatments, we have to apply that equally to people with disability and so we need to look at our systems, how do we change them, to actually change those structures and those underlying power relations that create and diminish those rights.  It's a challenge for states to look at existing arrangements in this way, and it's not an easy task, but that's what transformative equality is demanding, is looking at underlying structures, changing those structures to ensure that there is no denial and limitation on human rights for people with disability.

In terms of whether the potential laws or policies in Australia that build in that notion, I think perhaps the National Disability Insurance Scheme Act does that have potential because it is underpinned by several human rights treaties, including the CRPD, so it does acknowledge that human rights are critical to providing disability supports and the way we do that in Australia.  Some of the implementation and  
application I would probably have some criticisms of, but I think the aim of that Act is to attempt and aim to transform systems and underlying power relationships so that people with disability have control over their supports and services.

MS EASTMAN:  Ms Sands, you have mentioned limitations on rights.  I want to ask you both about that.  We often see in human rights treaties, particularly those dealing with civil and political rights, that the rights are not absolute and can be limited if there's a law and it's proportionate and it's for a particular purpose.  We don't see that model of rights limitations in the CRPD.  Ms Sands, are you saying that the rights in the CRPD are not subject to any limitations?  Can I just ask you to explain that?

MS SANDS:  No, I'm not saying that.  All human rights, unless they are absolute rights, can be limited for a legitimate purpose, and as long as they are proportional to that limitation.  That applies across all international human rights.  What I'm saying about limitations is limitations on the basis of impairment.  So it's about the limitation is not a legitimate objective purpose, it is based on impairment.  So when I was speaking in relation to, say, the guardianship system or mental health law provisions, so guardianship limits the autonomy rights of people with disability, it is allowable and legally allowable for third parties to consent to medical treatments, for example, or consent to different living arrangements, et cetera, under guardianship tribunals, depending on the powers that are providing to the guardian.  And under mental health laws, third parties can consent to treatment for people with psychosocial disability in mental health facilities or in the community, and it is a limitation based on those impairments.

So when I'm talking about limitations of human rights for people with disability, I'm talking about the limitations based on impairments.  But Rosemary would be able to explain perhaps more fully in relation to limitations of human rights more generally.

MS EASTMAN:  Ms Kayess, is there anything you want to add to that?  I understand that a person's impairment itself is not the basis for the limitation, but that does not mean that the rights in the CRPD should be considered to be absolute rights in the sense that there is no limitation; is that right?

MS KAYESS:  CRPD carries with it the framework of international law, as it has been established, through other instruments as well.  So if you go back to the ICCPR article 4, where it establishes basically absolute rights, so recognition before the law is an absolute right, and that cannot be derogated even in situations of state emergency.  So when you are trying to differentiate between CRPD and other instruments, what you need to do is consider in light of the purpose and objective of the CRPD whether the limitations that are being placed on something are proportionate.  And so it is a measure not of proportionate in terms of how we understand other instruments, but proportionate in terms of how we understand --- and whether it is a legitimate policy objective, given the purpose and objective of the convention.

MS EASTMAN:  Does that mean that it is very important when we are looking at the  
CRPD that we have got a clear understanding about what the particular rights mean in the first place   

MS KAYESS:  Yes.

MS EASTMAN:  --- and that task of interpreting and working out the meaning of rights could have a bearing on any concept or application of limitations as you have described them?  Would that be an appropriate starting point?

MS KAYESS:  That would be a very appropriate starting point.  That's where the Committee would start as well.  And the Committee can push back, and other States can push back, in terms of a states parties decision to limit rights in any particular way, or derogate from rights in a particular way, citing 4.2 from ICCPR is the basis of their --- article 4 of ICCPR as the basis of their limitation.

MS EASTMAN:  I'm conscious of the time, and we will ask the Australian Government about its interpretive declarations, and that is a process of saying, this is how we interpret the CRPD rights as Australia, and then built into that interpretation is a form of limitation.  Is that right?

MS KAYESS:  Yes, it could be read that way.

MS EASTMAN:  Is there another way of reading it?

MS SANDS:  I think for the Australian Government --- sorry, Rosemary, to jump in --- their interpretive declarations they are claiming that they are meeting their obligations under the CRPD, and the way they interpret the CRPD under those particular articles 12, 17 and 18 is consistent with the CRPD.  That's how I understand their argument.

MS EASTMAN:  I'm mindful of the time.  I have a few questions to ask but I might check if the Commissioners have any questions.

CHAIR:  I think first we might check whether any of the Counsel who have leave to appear have any questions, specifically are there any Counsel present who wish to ask either Ms Kayess or Ms Sands any questions?  I will take silence to mean no.  Very good.

In that case, I will ask first Commissioner Ryan, do you have any questions?

QUESTIONS BY THE COMMISSION

COMMISSIONER RYAN:  Just one.  I'm a little unclear, would you take the view that --- because in some notes we have got, it suggests that you believe that the CRPD codifies the social model of disability.  Would you take that to be true?
 

MS KAYESS:  I'm happy to go with this, unless you would like to, Therese.

MS SANDS:  That's okay.

MS KAYESS:  The reason we put it like that is that because of the way the CRPD is addressing disability discrimination, the social model frames which disability discrimination is.  It gives us an understanding of how disability discrimination occurs.  So impairment, being the functional trigger for the discrimination, so it is based on impairment, and it is the interaction with the social environment, whether it be social structure or attitudes.

COMMISSIONER RYAN:  I understand that.  I'm mindful of the time.  I just wanted to get: do you agree that the Convention codifies the social model?  The reason I ask is in your research paper you have actually said that the CRPD entrenches the impairment model of disability.  So I just want to find out which was true, and does it matter?  I'm not a lawyer so I don't understand, but does it matter whether or not the CRPD either codifies or entrenches the impairment model of disability?

MS KAYESS:  I don't think it does because the way the articles are structured is to be able to address discrimination and inequality, and that's how it is framed in terms of a social model.

MS SANDS:  It is clear in article 1.  Article 1, the purpose of the Convention, the wording there actually outlines the social model, and also makes it clear that all human rights apply to all people with disability, which is the additional human rights model component for the social model.  It takes the social model further, I should say.

CHAIR:  Commissioner McEwin, do you have a question?

COMMISSIONER McEWIN:  Thank you, Chair.

To both of you, thank you for your evidence.  On page 9 of your report, you stated that --- I'm not going to read out precisely what it says --- you have stated ableism is still entrenched in legal policy and practice frameworks, which continue to segregate people with disability from the general population.

Can I confirm that you consider that the CRPD requires Australia to dismantle segregated systems, such as special schools or sheltered workshops, in order to realise the necessary transformation or social transformation required by the CRPD?

MS KAYESS:  Okay, I'll start.  The segregation is basically established within international law as being impermissible, and segregation based on impairment should be recognised in the same way.  So if you see segregation as impermissible across other areas of international law, and that impairment through CRPD is recognised as part of that suite of international law, then yes, breaking down and  
removing segregated settings and mechanisms from social infrastructure is critical because it is not seen as part of a permissible human rights framework.

COMMISSIONER McEWIN:  Thank you.  I don't know whether Ms Sands wanted to add to that.  But thank you.

MS SANDS:  I would just agree with Rosemary.  Thank you, Commissioner.

CHAIR:  Is there anything else, Ms Eastman?

MS EASTMAN:  Yes, I wanted to make sure the Commissioners had sufficient time to ask questions.  The final question for both witnesses is: is there one thing that you think could be done to better protect the CRPD rights in the Australian setting, be that a model or a policy initiative?

MS KAYESS:  Australia's history of having a very ad hoc and piecemeal framework around protecting human rights needs to be addressed.  We have got no uniform mechanism by which the suite of human rights as they apply across our community, so not just the International Bill of Human Rights but the Universal Declaration and the International Covenants of Civil and Political Rights and Economic, Social and Cultural Rights, but also the thematic ones of race and women and children and disability.  Holistically there is no mechanism that embeds them into our laws, so policy maker, the judiciary, have reference to them as a matter of course.  What we have got at the moment is a piecemeal, ad hoc approach that leaves gaping holes for the denial and violations of human rights to occur.  So mechanisms that can establish CRPD as part of our domestic framework I think are critical.  We have talked for many, many years around a bill of rights or a charter of rights, the same as other Commonwealth countries such as New Zealand, the UK --- Canada, probably most famously, where it started with a statutory bill of rights that then became a constitutional bill of rights.  So some form of mechanism we have some charters in state jurisdictions, but that doesn't give universal protection over all civil and political rights and socioeconomic and cultural rights, and it also doesn't give a national coverage as well.  So I think we do need a mechanism like a charter of human rights to ensure that human rights are taken seriously across the leadership framework and the policy and judicial framework within Australia.

MS EASTMAN:  Thank you.  Ms Sands?

MS SANDS:  Look, I absolutely support what Rosemary is saying.  I could probably just add to that, that I think 13 years after ratification, Australia still continues to maintain or retain its interpretive declaration.  As we point out in our report, those interpretive declarations largely maintain the status quo in how rights are applied to people with disability, which stifles reform and the necessary reform required.  I think Australia has a significant opportunity to be a leader globally and in the region nationally, if it withdrew its interpretive declarations and engaged, fully embedded a human rights model of disability or understanding of disability into its law, policy and practice frameworks, and that means by genuinely looking at its  
systems and structures and seeing where they do limit human rights on the basis of impairment, and looking to the developed jurisprudence over those 13 years from the Committee on the Rights of Persons with Disabilities through general comments, concluding observations, including to Australia, and to other countries, the findings of the Committee in relation to individual communications or the complaints that have gone to the committee, including in relation to Australia, as well as looking at other states or countries that have embraced reform, and Australia could join that leadership group.  So for example, Ireland has an assisted decision making Act, it has developed policy and practice around supported decision making for people with disability and that Act is due to come into force next year.  Other countries have also abolished guardianship arrangements.  We have the World Health Organisation that has recently released guidelines ---

MS EASTMAN:  Ms Sands, can I jump in there.  We will look at some of the other models.  Can I just understand your evidence that in terms of what Australia can do, it is to build on that model of equality, being part of Australian law, practice and policies; is that right?

MS SANDS:  Yes, yes, that's right, to remove the interpretive declarations and to engage with the human rights model and the transformative equality that is understood as part of the CRPD.

MS EASTMAN:  Can I thank you both for your evidence.

Commissioners, I am not going to formally tender the Royal Commission's research report, it is available publicly on the Royal Commission's website, but could I tender into evidence the curriculum vitae for Ms Kayess and Ms Sands, and also we have included in the tender bundle an article prepared by Ms Kayess and Mr French, called "Out of Darkness Into Light: Introducing the Convention on the Rights of Persons With Disabilities", published in the Human Rights Law Review in January 2008.  If those documents could respectively be marked exhibits 18.1, 18.2 and 18.3.

Commissioners, that concludes the evidence.  I will take full responsibility for running over time, but if we could adjourn now for 20 minutes.

CHAIR:  Yes.  First of all, I will admit into evidence the documents you have identified respectively as Exhibits 18.1, 18.2 and 18.3.

I add, on behalf of the Commissioners, our thanks to both Ms Kayess and Ms Sands for coming to the Royal Commission to give evidence and for the contribution you have made.  We very much appreciate the evidence that you have given and the assistance you have provided to the Royal Commission.  Thank you very much.

We will adjourn now until 11.45 Eastern Summer Time.

EXHIBIT #18.1   CURRICULUM VITAE OF ROSEMARY JANE KAYESS
 

EXHIBIT #18.2   CURRICULUM VITAE OF THERESE SANDS

EXHIBIT #18.3   OUT OF DARKNESS INTO LIGHT: INTRODUCING THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES   ARTICLE BY ROSEMARY JANE KAYESS AND PHILLIP FRENCH   HUMAN RIGHTS LAW REVIEW   JANUARY 2008

THE WITNESSES WITHDREW

ADJOURNED    [11.25 AM]

RESUMED    [11.45 AM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Commissioners, last week I had the opportunity to talk to Our Voice SA and two of the members of Our Voice SA.  Our Voice SA is a group of people living with intellectual disability who meet once a month to talk about issues that are important to them.  They speak out about things that matter on the day to day lives of people with intellectual disability and they provide training in self advocacy and advocacy.

CHAIR:  I'm sorry, think I we have lost transmission.  I'm not sure if people in the Sydney hearing room can see or hear us, but we have a difficult with the system.  So we will adjourn for a few minutes, hopefully to get it fixed.

ADJOURNED    [11.49 AM]

RESUMED    [11.51 AM]

CHAIR:  I'm sorry for the interruption.  Yes, Ms Eastman.

MS EASTMAN:  Commissioners, I was saying we had an opportunity to meet last week with Our Voice SA.  It is an organisation for people living with intellectual disability.  They meet once a month to talk about issues that are important to them.  Our Voice SA speaks about matters that impact people living with intellectual disability and it provides training and advocacy services, both in terms of  
self advocacy and general advocacy.  The two people who we spoke to last week are Ian Cummins, who has been a self advocate for over 25 years and it has developed into a passion for him.  He first spoke up about moving in to his own home, and Ian believes everybody should have an opportunity to have their say and make their own decisions.  He is the Chairperson of Our Voice SA.  He is joined by Rachel High.  May I say, she is quite modest in this video but she is a very accomplished actor and dancer and performer.  You can see more about her story on a little piece on the internet called The 100 Leaders Project.  But they are going to tell you about rights mean for them and the work that Our Voice SA does.  We will start that video now.

[PRE RECORDED EVIDENCE VIA VIDEORECORDING PLAYED]

MR IAN CUMMINS

MS RACHEL HIGH

MS EASTMAN:  I have got with us, talking to the Royal Commission today, Mr Ian Cummins and Ms Rachel High.  So if I could start by introducing each of them and asking each to they will us about themselves.  We are going to use first names.  Rachel, can I start with you?

MS HIGH:  Of course.

MS EASTMAN:  And what can you tell the Royal Commission about yourself?

MS HIGH:  I migrated to Australia from London in 1978.

MS EASTMAN:  You came ---You were born in London?

MS HIGH:  Yes.

MS EASTMAN:  And you moved to Australia?

MS HIGH:  In 1978.

MS EASTMAN:  And did you move to Australia with your family?

MS HIGH:  Yes, I did.

MS EASTMAN:  And where in Australia did you move to?

MS HIGH:  Port Augusta.

 
MS EASTMAN:  Port Augusta. And have you lived there forever?

MS HIGH:  Yes, I've been there from --- from a year old to 19 years old.

MS EASTMAN:  What happened when you turned 19?

MS HIGH:  I got employment with the Restless Dance Company at the time.

MS EASTMAN:  And tell me about that job.

MS HIGH:  Oh it was always dance, I was very much interested with the theatre, with dance, and wanted to fit in with something, to fit in in an area that I was interested in.  So that's now I got that job, really.

MS EASTMAN:  And are you still working in dance and the theatre?

MS HIGH:  I am still working in theatre.  I'm getting a degree in theatre from Flinders University this December, so I've been building up ever since.

MS EASTMAN:  And I understand you're an actor?

MS HIGH:  I am an actor, yes.

MS EASTMAN:  What have you been doing in your acting jobs and career?

MS HIGH:  Well, part of it was in a film called One Night The Moon as an extra, it was a Rachel Perkins film.  That's what I did as an actor and I’ve  been performing ever since, loved it ever since.

MS EASTMAN:  And how did you get involved with Our Voice SA?

MS HIGH:  Good question.

UNKNOWN SPEAKER:  You applied for the job.

MS HIGH:  I applied for the job.

MS EASTMAN:  What do you do with Our Voice SA?

MS HIGH:  I went underneath training in the peer section, peer mentoring section, so that's what I had to do, so to help, I think helped --- facilitate I think is the word for it --- helped facilitate the meetings and all that.

MS EASTMAN:  Is it a good job?

MS HIGH:  It's a great job.  I'm loving it, I really am.

 
MS EASTMAN:  I might come and ask you more about your job in a moment. 
Ian, can I ask you some questions?

MR CUMMINS:  Yes.

MS EASTMAN:  Ian, what would you like to tell the Royal Commission about yourself?

MR CUMMINS:  I was born in Peterborough, in a country town.  I lived in an institution until I was 19 years old.  When I moved out, I started at --- equal rights, you learn about equal rights and all that.  I started the committee up, at Our Voice SA, in the 1970s, as people with --- people with intellectual disability learning disabilities.  Richard Bruggemann, you’ve heard of the name Richard Bruggemann from South Australia?

MS EASTMAN:  We have.  Richard Bruggemann came to the Royal Commission and gave some evidence when we had a hearing in Adelaide a few months ago, so the Royal Commission has met Richard Bruggemann.

MR CUMMINS:  He's our patron ‘cause how I first started that off, ’cause, I said to him, "There's a committee and that, Our Voice Australia," and I was asked to be the South Australian rep on that.  I started Our Voice up because they wanted somebody from South Australia, I started our committee up, Our Voice.  I know the system inside out.  Why I start that committee up, right, to hear from other people.  They come on board and they talk freely about their rights and all that, and people started to learn that --- we've got two members on our board who would not talk, they wouldn't talk to anybody at all.  Now, one of them has won an award in South Australia and the other one works with our Purple Orange for Our Voice, ’cause she was --- before that she wouldn't talk to anyone.  Since she joined Our Voice, you can't shut them up!

MS EASTMAN:  So Ian, how do you help people find their voice?  Rachel is an actor and has worked in the theatre so Rachel is used to talking; but for other people, they might not be comfortable talking.  How do you help people get their voice, as you say, so they will talk and you “can't shut them up”?

MR CUMMINS:  I'm classed as an advocate.  I'm classed as an advocate.  I got standards I have to go by.  I help people along, but they have the final say.  And I've got contacts.  If I can't go any further, I hand them --- if they can't do anything, I go through the court system, to help other people who can't talk, who don't want to talk in front of people, like get themselves in trouble and all that.

MS EASTMAN:  So you help them?

MR CUMMINS:  Yes.

MS EASTMAN:  The topic that the Royal Commission is talking about today is  
about human rights and I wanted to ask you, what are human rights for you?  What do human rights mean for you?

MR CUMMINS:  Human rights, to me, I spent time in an institution when I was 19 years old, I never had any rights.  When you live in institutions, that --- you got rules you have to follow.  When I moved out, I learned the hard way.  I pay me own bills, I've got people for meal breaks, I don't tell what time you have to be in, what time you have to have a shower, what time you have to be home and all that.  Part of equal rights is part of that, do what you want to do out of the community.  We got the same rights like anybody else that hasn't got a disability at all.

MS EASTMAN:  Rachel, what do human rights mean for you?

MS HIGH:  Well, the right to be independent, like in your own home and in your own communities, I see that as a human right.  The right to explore, you know, the right to be who you are, not what you are.

MS EASTMAN:  How do you get human rights?

MS HIGH:  By --- it's a learning thing really with human rights, sometimes.  So, you know, some people can learn about their own rights and how they --- how they actually get that, you know, from other people, so like around them, like people that you're a neighbour with or someone like that.  You actually --- let me think.  They say get it you know, they say get the human rights. Sometimes you know, we’re not going  to a library or a museum or something, and so it’s our right  right to explore, our right to learn, you know, that's how you get it.  You learn by --- that's how you get the human rights, you learn to obtain that.

MS EASTMAN:  Ian, what do you think about where and how you get your human rights?

MR CUMMINS:  You learn --- when you move out, you been in for so long, and when you move out in the community, you learn to do everything for yourself.  You don't rely on anybody else --- part of your rights.  Teach other people, you have workshops and all that, you can do workshops, they teach people, but how you get human rights, you learn yourself.  You rely on yourself, you don't rely on anybody else at all.

MS EASTMAN:  Who needs to know about human rights for people with disability?  Who should know about them?

MR CUMMINS:  People with disability should learn the rights club.  These --- people with disability that know about the equal rights club, there's some here that are still now --- some areas still not learned.  People don't know they have equal rights until somebody tells them.  And that's always the hardest part.  If people with disability don't know about it, they won't learn anything, would they?

 
MS EASTMAN:  Rachel, who needs to know about human rights?

MS HIGH:  Everyone needs to know about human rights.  Everyone needs to know about them.

MS EASTMAN:  How do we help people learn about human rights?

MR CUMMINS:  Workshops.

MS HIGH:  Yep. Okay, workshops, yeah. Yeah, workshops, that's right, yeah.  It’s education, We are learning about how to obtain their own rights.

UNKNOWN SPEAKER:  And role modelling.  Role modelling.

MS HIGH:  Role modelling, sorry.

MS EASTMAN:  Role modelling?

MS HIGH:  Yes.

MS EASTMAN:  What do you do in being role models to help people learn about their human rights?

MS HIGH:  The workships, doing the workshops, to learn about their human rights, where they have the right to go, where they have the right to be; that's how you learn, really, the workshops of that.

MS EASTMAN:  What can you tell me about the workshops?

MR CUMMINS:  Come to a workshop ’cause in a workshop you've got a help, you got Debbie and Allie, they come and they help with a workshop, that’s a role model, so they teach other people in the disability area about equal rights and all that, as a role model.  You can come ‘cause --- I'm a mentor, and you know you're a role model for everybody else with a disability, and you learn about other people’sdisabilities, and that's how you learn.  You teach other people with disabilities about human rights and all that.  That's what they have workshops for.

When we --- we get our funds for, part of our NDIS fund them, right,  go out into the community, teach people about equal rights and all that.  We do workshops around Adelaide, we're teaching other people with disabilities all about it, and people know about --- the more people know about equal rights and all that, that way they’ll learn, and they teach other --- the best part about it, they can help other people they live with, and even in the community too, they talk on their behalf and help them along too.  That's part of it, doing the workshops.

MS EASTMAN:  What about for people who don't have a disability?  Do people who don't have a disability need to know about human rights for people with  
disability?

MS HIGH:  Yes, they do.

MR CUMMINS:  Yes, they do in a lot of ways, but they have got --- people who haven't got disability, they know --- they haven’t got a disability about the rights anyway.  But when you've got a disability, a lot of people don't know you've got, so like anybody who hasn't got a disability at all.

MS EASTMAN:  How do we help people who don't have a disability to learn about the human rights of people with disabilities?  What should they be learning?

MR CUMMINS:  Like workshops, you teach --- do workshops and have people come to workshops and they learn about equal rights and all that.  If you don't do a workshop, they wouldn't know, ’cause a workshop is in there, you teach people who haven't got a disability, they have got rights like anybody else has.

MS EASTMAN:  Do you think people who don't have a disability need to learn from people who do have a disability?

MR CUMMINS:  Yes.  Yeah, ‘cause ---

MS EASTMAN:  Why is that important?

MR CUMMINS:  Because a lot of people, people who aren't --- ‘cause when you got --- when you got a disability people know you have got rights, but people who haven’t got disabilities right, they don't really understand what it's like for a person living with a disability at all.  Like when the ball game's changed, they could be in a car accident and all that, they become disability, and that's always the hardest part.  Like us, we living on a daily basis.  People who haven't got disabilities, when they become disability, their life just changes altogether.

MS EASTMAN:  Is it about helping people understand about life with a disability?

MR CUMMINS:  Yeah, in a lot of ways, yes.  --- peer groups and all that, a lot of peer groups, that's where they learn.  Like ‘cause everybody’s  got a story to tell, people with disability, ‘cause if you haven't got --- two people who haven’t got a disability, right, they might have stories down the track.  They might have stories down the track and they like everything else.

MS EASTMAN:  One thing about people with a story to tell is sometimes it's helping people to feel confident to tell their stories and to speak up.

MS HIGH:  Yes.

MS EASTMAN:  That's a lot of what you do at Our Voice SA, is to help people to speak up; is that right?
 

MS HIGH:  Yes, yes.

MS EASTMAN:  How do you help people speak up?

MR CUMMINS:  Give them a voice, ‘cause with Our Voice, other organisations, right, they have got somebody to answer to.  Our Voice is cooperated, we don't answer to nobody.  If a person with a disability wants to be up somewhere --- we've had cases --- we've had cases and all that, --- to bring up, but we don't answer to an organisation or nobody at all.

MS EASTMAN:  Rachel, what would you like to see Australians do to do better for human rights of people with disability?  What should happen in Australia?

MS HIGH:  I'll have to think about that.

MS EASTMAN:  That's okay.

UNKNOWN SPEAKER:  You're speaking at the conference.

MS HIGH:  Well, I'm actually speaking at a conference about ---

UNKNOWN SPEAKER:  You can tell her what you're speaking about.

MS HIGH:  I'm speaking about stereotypes in the conference, yes, and how detrimental stereotypes are to people with disabilities, I'm talking about that now in general.  So that I think that should be addressed as well sometimes, I think.

MS EASTMAN:  Stereotypes?

MS HIGH:  About stereotypes, I think that should be addressed and heard by other people in whatever state they live in to understand about that, to learn about that and how detrimental that is to people like me, for example, let's just say like me, you know and --- other people, because it's like labelling, it's called labelling, so I think it's important for people to hear that and to learn from that as well, about that kind of, form of act.

MS EASTMAN:  Ian, what would you like to see for Australia?

MR CUMMINS:  I want to see more people with disability have more of a say.  You know why?  Everybody makes decisions for you and half the time it's not the right way.  But at the moment not enough --- they don't ask people with disability, they don't go to the real source, people with disabilities at all.  They always ask people what works with people with disabilities and all that, but I would like to, yeah, see more people with disability be able to have a lot more.

MS EASTMAN:  Is there anything you would like to tell the Royal Commission  
about what should change to do better for the human rights of people with disability?

MR CUMMINS:  Have more people around Australia, more people learn about their rights.  Let them speak up, and that's why they learn about their rights.  Because you can't --- you learn, you do workshops, only if you’re ---  you learn that yourself and you got --- they got more confidence in yourself, and they won't be scared to speak up and say something.

UNKNOWN SPEAKER:  Also good support workers are important.  They need to know their rights, don't they?

MR CUMMINS:  You learn --- that's why they learn, more confidence to speak for themself.  Like my committee, they got rights, they speak up for themself, they speak up for everyone else along the track.  That's why they learn and everybody --- everybody that hasn't got a disability, that's how you teach people and all that.  You learn that --- you have to learn it yourself.  You do workshops and all that yourself, but you have to do it yourself to learn.  It's a lot easier, it will be a lot easier down the track.

MS EASTMAN:  Thank you both very much for talking to the Royal Commission today and telling us about the work of Our Voice SA   

MS HIGH:  Of course.

MS EASTMAN:  --- the work you do to support people with disability to have their voices.  Thank you very much for talking to us.

MS HIGH:  Thank you.

MR CUMMINS:  Thank you.

[PRE RECORDED EVIDENCE VIA VIDEORECORDING ENDED]

MS EASTMAN:  Commissioners, I will shortly tender that video, but there is a short video that Our Voice SA has prepared to help people understand their human rights, and we had a discussion with them and they would like us to show this very short video.  Thank you.

[VIDEORECORDING PLAYED]

FEMALE SPEAKER:  Human rights: what it means to me.

MR BURNER:  Human rights is --- everyone has got a right.
 

MS CRAWFORD:  People have rights, and freedom, and make their own decisions.

MR BURNER:  I've got a right to work, as anyone else.

MS CRAWFORD:  I have a right what to eat for breakfast, what to eat for lunch.

MR BURNER:  And also I've got a right to live in the community, to volunteer.

MS CRAWFORD:  I've got a right what to wear, and when and how.

MR BURNER:  And I've got a right to have an education.

MS CRAWFORD:  And I've got a right to go to bed, I've got the right to go to the coffee shop, the right to go to the shopping mall. All the rights in the world!

MR BURNER:  And have no violence and abuse.

MS CRAWFORD:  Do not do anything that it might harm you or hurt you.  It's okay to say "No"!

MR BURNER:  And most important one of the lot is to be loved and cared for by somebody.

MS CRAWFORD:  You have to know your rights to make decisions.

MR BURNER:  Sometimes people don't know where to start, or they don't believe in their self, because someone always told them, "This is how you got to be" and "This is how you aren’t".

MS CRAWFORD:  It doesn't matter about your disability, you can do it.

MR BURNER:  Self advocacy would be a good starting point, to go to them, and also some places like SACID with the intellectual disability, or Purple Orange for their service, and Our Voice are good because they teach you to stand up for your rights.

MS CRAWFORD:  You can have that right.  It is very important, people.

FEMALE SPEAKER:  We thank Libby Crawford and Gavin Burner for sharing what human rights means to them.  Libby and Gavin are members of Our Voice SA.  Our Voice SA is a self advocacy group for people living with intellectual disability.  Our Voice SA is supported by JFA Purple Orange.  Our Voice SA: (08) 8373 8327, www.ourvoicesa.org.au; JFA Purple Orange: (08) 8373 8388 www.purpleorange.org.au.

 
[VIDEORECORDING ENDED]

MS EASTMAN:  Thank you, Commissioners, and thank you to our Our Voice for sharing the video.  Could I tender both those videos and ask you to mark them Exhibit 18.4, that is Ian Cummins and Rachel High's pre record; and Exhibit 18.5 for the Our Voice SA human rights video.  Thank you, Commissioner.

CHAIR:  Yes, both of those videos will be admitted into evidence and given the markings indicated by Ms Eastman.

EXHIBIT #18.4   PRE RECORDED EVIDENCE OF MR IAN CUMMINS AND MS RACHEL HIGH

EXHIBIT #18.5   OUR VOICE SA HUMAN RIGHTS VIDEO

MS EASTMAN:  Commissioners, our next witness is Natalie Wade.  I apologise for the delay in keeping Ms Wade waiting, but I hope she will come into the hearing room now.

CHAIR:  May we assume Ms Wade has taken the oath or affirmation as the case may be?

MS EASTMAN:  I think we can assume that.

CHAIR:  Very good.  I think we have Ms Wade on screen.

Thank you very much, Ms Wade, for coming to the Royal Commission to give evidence today.  We will start by Ms Eastman asking you some questions.  Thank you very much.

MS NATALIE WADE, AFFIRMED

EXAMINATION IN CHIEF BY MS EASTMAN

MS EASTMAN:  Ms Wade, thank you for returning to the Royal Commission.  You gave evidence at Public Hearing 5 last year.  Can I confirm you are Natalie Wade?

MS WADE:  That is correct.

MS EASTMAN:  You have provided your address to the Royal Commission?
 

MS WADE:  I have.

MS EASTMAN:  You are a legal practitioner?

MS WADE:  That's correct.

MS EASTMAN:  You have provided to the Royal Commission your CV and you have told the Royal Commission you have an established background in human rights law and advocacy and you have particular expertise in disability rights, public law and evidence law, is that right?

MS WADE:  That's correct.

MS EASTMAN:  And you hold qualifications as a Bachelor of Commerce, Bachelor of Laws, from the University of Adelaide?

MS WADE:  Yes.

MS EASTMAN:  You also hold a Master of Laws from the Australian National University?

MS WADE:  That's correct.

MS EASTMAN:  You are the founder and principal lawyer of Equality Lawyers?

MS WADE:  I am.

MS EASTMAN:  That's a law firm that you established in July 2019?

MS WADE:  That's correct.

MS EASTMAN:  And much of your work is to provide advice and representation for people with disability, their families and supports, and you cover civil administrative law, but essentially you focus on the everyday legal issues that face people with disability?

MS WADE:  Yes, that's right.

MS EASTMAN:  I mentioned this morning in opening that as late as Thursday or Friday last week, your book has been published.  If the Commissioners indulge me, the Commissioners will find a copy of Ms Wade's book behind tab 7 in the hearing bundle.  It is called Disability Rights in Real Life.  I will put up the cover of the book.  You have very kindly agreed that the Royal Commission can tender this book into evidence.  That means that the book will be available to be accessed by the Royal Commission's website once it becomes an exhibit in the proceedings.  Can I just check that you are agreeable to that approach and we are not encroaching on any  
commercial interests or rights on your behalf?

MS WADE:  I confirm that I hold the copyright to the book and I consented for that to be so, and I appreciate it happening.

MS EASTMAN:  Thank you, that's extremely generous.  Commissioners, you will see it's a very extensive publication that details in a very accessible form the nature of rights and the relevance of these rights in an Australian setting.  That's what I wanted to ask Ms Wade about in her evidence today.

Ms Wade, can I start: is the CRPD relevant to your work as a legal practitioner?

MS WADE:  It is, in a roundabout way.  It is not as able to be directly used by me as a legal practitioner, because of course Australia as a State Party has not truly incorporated the CRPD into our laws, so when I am running files, that is providing legal advice or representing people in courts and tribunals, I cannot mount my case on the CRPD, but it is always useful for explaining to clients, that is people with disabilities and their families, what their human rights are, and what they should expect from government and institutions in Australia.

MS EASTMAN:  Other than the direct circumstances of people bringing cases in courts and tribunals, have you had the opportunity to use the CRPD in any of your other broader advocacy work?

MS WADE:  Yes, I would say that my main use of the CRPD and my expertise in it is derived from my work in law reform and public policy over the last decade.  So we often will use the CRPD to measure current domestic laws, to identify whether or not they will protect and promote, the human rights of people with disabilities and where they do not, which is often the case, then we mount law reform campaigns and seek public policy reform based on those failings.

MS EASTMAN:  One of the issues I want to explore in this Public Hearing is the relevance of the CRPD to Australian law, policies and practice.  Related to that, I ask the question: how do you translate rights at an international law level into an Australian setting?  I want to ask you some questions about that.  But can I start by asking, in your experience as a legal practitioner, what do you see as an impediment to the enjoyment of human rights for people with disability in Australia?

MS WADE:  As a legal practitioner representing people with disabilities and their families, I most crucially see that the current framing of our laws and policies as a nation, but also at individual State and Territory level, are formed in such a way that does not anticipate the inclusive participation of people with disabilities, that is my clients, or goes out of its way to preclude them from accessing their human rights.  So a common example that I would see is the use of guardianship laws that are disproportionately used against people with intellectual disabilities and cognitive impairment.  In each state and territory we have a Guardianship and Administration Act of this type that principally removes the right of a person to make their own  
decisions and creates a substitute decision maker to make decisions for that person.  Ordinarily, that substitute decision maker is a Government body such as the Public Advocates around the country.  That legislative framework that is enjoyed in all the States and Territories is a harsh and unjust violation of people's human rights.

MS EASTMAN:  One thing I think you have described in your writing and work is one of the impediments comes because of attitudes and particularly an attitude you have described as ableism.  I think you have drawn some analogies to how we think about racism, and the extent to which racism or sexism or other forms of discrimination might occur.  Can I ask you just to explain about ableism as an impediment to the enjoyment of human rights?

MS WADE:  Sure.  Certainly, as the Senate Inquiry that came before this very Royal Commission in 2015 found, that people with disabilities in Australia are seen not to be human.  They are seen to be not to be rights holders.  And that very sentiment, we see at a very everyday community level all the time.  It is this idea that people with disabilities are less than --- they are not worthy to hold their own human rights.  And if they are worthy, they can't actually do that for themselves.  And so we have these ableist structures that have informed a lifetime of law reform and public policy that has created the active and longstanding exclusion of people with disabilities.  What is interesting, though, as you say, in the context of racism and sexism, the broader community have a different perception, in my view, of the role of racism and sexism in offending the human rights of women in the case of sexism and people of different races for racism, whereas that fundamental belief in my view is not held for people with disabilities by the broader community at the moment, and that makes it incredibly difficult to defend their human rights.

MS EASTMAN:  If we look at the CRPD --- and as I had said earlier, there's a lot of jargon and legal terminology around international human rights law, that includes the CRPD --- one of the challenges is taking those international laws and working out how they best fit into a domestic, in this case Australian, setting.  But it has to be, doesn't it, done in a way that makes a practical difference to the lives of people with disability?  By that, I mean more than just mere words or slogans, so something concrete.  Do you agree with that?

MS WADE:  Yes, wholeheartedly.

MS EASTMAN:  In the work that you have done, if there is a reference to the CRPD made in laws or policies, do you see that it is starting to have the impact of making a practical difference to the lives of people with disabilities?

MS WADE:  Yes.  So when we refer to the CRPD in domestic law, for example in the National Disability Insurance Scheme Act or here in South Australia we have a Disability Inclusion Act that also references the CRPD, we find that there is a greater anchor to reference the human rights of people with disabilities when addressing everyday issues.  So if you take, for example, access and inclusion, in a very general somewhat boring sense of accessing the local cafe, it's a pretty practical problem and  
we don't usually talk about the right to coffee as a human right, but when you start to --- into law that access and inclusion is a fundamental human right that is derived from the CRPD, then you have a much more effective and protective law than if you simply say, "A person with disability has the right to access the local cafe".  So it really delivers a more practical and real sense of what the CRPD otherwise provides in somewhat motherhood statements.

MS EASTMAN:  The work of the Royal Commission thus far, and one of your roles is to be AFDO's adviser in relation to the Royal Commission, and I'm aware that you follow the work of the Royal Commission, is that there is not a great deal of awareness of the CRPD or that sense of human rights for people with disability within the disability community, but particularly in the broader community.  We talked, just before, with Our Voice SA about training and awareness of rights, and this is something that you have really thought about as well.  It's part of the reason, I understand, for the book that you have recently published.  But as lawyers, we think about the law in a particular way.  How do we translate what can be some complex concepts or rights expressed in fairly aspirational terms into something that means something?  How do we educate the broader community?  That's a big question to ask you, but you are up for the challenge.

MS WADE:  Yes.  No doubt.  When educating people in their everyday human rights, and this can happen as a lawyer when I'm providing advice or it can happen when I am campaigning on a human rights issue or whatever the case --- in my opinion, the fundamental thing to do is to relate the human right which you seek to explain through a practical everyday notion.  So not dissimilar to what I just did with the coffee shop and the right to access and inclusion, but you need to really break down what the right means at an everyday level.  And it is quite surprising, the number of people, both within the disability community and the broader community, that do not know, really genuinely do not know that it is their human right to access education, to have open and fair paid employment, to be able to access healthcare, all of these really, really, when you say it, somewhat obvious human rights, you really do, as a lawyer, need to be able to explain it in those practical everyday examples.  So for example, in the book, which goes through nearly every article of the CRPD by chapter, there are frequent examples of how this relates to a person's everyday life, so, you know, if you are at school and you are denied an Auslan interpreter, what does that mean in terms of your human rights?  If you go to work and you are told that you can only work in the back room and everyone else works in the front room, what does that mean in terms of your human rights?  I think if you level these really big concepts in everyday examples, people can really --- grab hold of them and people can get it.

Where it becomes more complex is in areas of what this Commission is looking at, around violence, abuse, neglect and exploitation of people with disability.  So it is all well and good to explain your right to housing means you have a house or your right to education means you go to school or your right to access and inclusion is going to the local pub, but when you start talking about more difficult conversations around freedom from violence, abuse, neglect and exploitation, we really need to think about  
what the examples and explanations we are giving to people because what we most want, I'm sure the Commission is thinking at the moment, is for people to be able to identify and prevent, rather than react to those situations.  And obviously as a country we have a whole body of criminal laws that will arguably respond, as we have seen in South Australia, to the Ann Marie Smith case, where sure, there are charges that can be laid, there are matters that can be dealt with in response to the violence, abuse and exploitation of people with disabilities in the community.  But what we really need to be able to do, in my opinion, is properly explain those concepts that are derived from the human rights legal framework into everyday life so that people with disabilities and their families are able to properly identify what is violence, what is abuse and neglect, what is exploitation, and then be able to actively protect themselves.

A lot of what we do in rights education is about ensuring that people with disabilities and their families can protect themselves.  You should not have to go to a lawyer and an advocate every time something awful has happened.  We want people to be able to get the support that they need when they need it, sure.  But the first responder is really yourself, and you need to be properly equipped with the knowledge and education that the broader Australian community do have about their own human rights.  If I say to one of my non disabled friends, "Did you know that you have the right to be paid fairly?", they will say, "Absolutely I know I have that right and I exercise it routinely every time I get promoted."  But if I say that to my fellow peers with disability, it's a little less known, because realistically, Senior Counsel, we have not had our human rights in Australia for ever, arguably, and certainly not over the last 30 years or so, while they have been evolving in international and domestic law.

MS EASTMAN:  It has been suggested in some of the writing that when we come to look at human rights for people with disability, we can't turn away from the history of segregation and exclusion and setting up separate systems.  Do you have a view about segregation and exclusion sitting in a rights framework?

MS WADE:  My view would be most simply put as abolishing it.  I think it really has no place in a legal and public policy framework that promotes and protects the human rights of people with disabilities.  What is difficult, though, Senior Counsel, is that it is very challenging, it is almost behemoth, to properly unpick the current structures and systems in Australia that are really born on the basis of segregation.  So when we look at housing, education, employment, they are some of the really big areas where people with disabilities are only able to participate on the basis of segregation and exclusion, so we see special schools, in group housing, and in sheltered workshops or Australian Disability Enterprises, and realistically, as long as we as a country are funding them and legitimising them through public policy, then we will not comply with our obligations as a State Party under the CRPD.

MS EASTMAN:  One of the challenges for taking a human rights based approach is when you are putting it into pre existing systems and practices and policies, some of this can't be done overnight, can it?
 

MS WADE:  No, not so far as I can tell, no.  It would be great if that could be done, but I think that that would almost trivialise the issue, to expect it to be done in that way.  What we really need, in my opinion, is for people in Australia to accept the place of people with disabilities in the community.  We need to see that they are accepted as valued and rights bearing people within our community, and then with any luck, or common sense would tell me, that those people holding those views would coincidentally be members of our Parliament, senior officials in government departments, people that run local businesses, and so on and so forth, and would in effect would dismantle these structures and systems that actively exclude, and for the most part commit human rights violations against people with disabilities, of its own volition, really.  And that's really what we need to see happen.  This is not a matter simply for the disability rights movement, it's not something that is able to be achieved by community leaders or by senior advocates or even by government in isolation.  It needs to be a whole of community acceptance, acknowledgment and commitment, that we will protect and promote the rights of people with disabilities as a nation going forward, and we need to commit to that at an everyday systemic and structural level.

MS EASTMAN:  So bring it back to some of the scenarios that you are faced with and how you navigate this from a rights based perspective, the very nature of law and seeking legal remedies might be because there is a dispute, and you will have perhaps different understandings of respective rights and obligations.  Someone might assert a right, another person on the other side might say, "I don't have an obligation to afford that right to you, it's too expensive or there's some other reason why I might resist that right."  In the areas of looking at the rights of people with disability, how do you navigate these disputes?  What I'm interested in asking you is, how and when do you see any limitation on rights in the framework that we presently have?

MS WADE:  Certainly when you get into disputes, as you call them, and they absolutely are, when you have legal actions and complaints before commissions and tribunals, which at their heart seek to assert the human right of the client, it is often in large part, as you say, taken up by a dispute between you and the respondent --- usually a government agency or a school or an employer or whoever --- about, is that really their right?  Is it their right to have the reasonable adjustments that they need to access a classroom?  Is it their right to have those things that they need at work or whatever?  Is it their right to have housing?  That often does take up, I would say, most of my day, Senior Counsel, is debating that with respondents as to what they perceive to be their legal obligation as Government or private sector, and for the most part differ quite considerably from mine as a human rights lawyer.  But where that comes from is, sure, in part attitudes, right, respondents are just people and people have these attitudes and ableisms that I have spoken about.  Part of it can come from a lack of education.  Some respondents simply do not know that deaf people need Auslan interpreters or that people in wheelchairs need to go to the toilet throughout the day as well.  So part of it is that.

 
But in my view, when you get into legal disputes, attitudes are for the most part a fraction of the issue at hand facing me and my clients, and in fact what the real issue is is the current framing of laws under which we practise that allow for these sorts of attitudes to run rife.  And so we have --- sorry, Senior Counsel.

MS EASTMAN:  Thinking of examples where the CRPD has come in part into Australian law, in discrimination, which is the area that you have great expertise in, is a model designed on formal equality, slightly substantive equality, but it has got this sort of balancing act, doesn't it, between the right, and then there's limitations built into it.  I want to understand from a rights based perspective, how do you deal with those limitations?

MS WADE:  The limitations are dealt with by very careful legal advice and very careful presentation of the legal case.  One of the real challenges that we have in the federal discrimination space for disability, surrounding the Disability Discrimination Act is a lot of jurisprudence we have heard from the Federal Court and the High Court, which seeks to close in the scope of the Disability Discrimination Act, which makes it very hard as a legal practitioner to ensure that you can squeeze yourself through the very narrow gap that is left to be able to preserve your client's rights.  So what we have seen is then the Commonwealth Government amend the Disability Discrimination Act with a view of trying to open it back up, allowing for practitioners like myself to have perhaps more of a walkway than a narrow gap to squeeze through.

But we have seen, as the Commissioners would be aware, that that has somewhat been in vain to date, with still the Disability Discrimination Act being read by the High Court in a very narrow sense.  It is really important I think --- and I'm mindful that people watching the hearing might be at risk of getting a little bored right now with all the legal jargon that might be able to come out of my mouth in a moment --- but whether we have an Act like the Disability Discrimination Act which has a direct relationship with people with disabilities to enforce their right to be free from discrimination, which is a right given to them under the CRPD --- and other international law, I hesitate to add --- then it cannot only be narrowed by, or limited, as you say, Senior Counsel, by the views and arguments of the respondents, but also it is narrowed and limited by the work of the High Court and the Federal Court in delivering judgments in this space.  So ---

MS EASTMAN:  Can I jump in there, because some of the models that people have talked about to give better effect for CRPD rights is to have something like a Bill of Rights, and that takes those rights into courts and tribunals.  If, as you say, some of the experience of litigating or arguing rights in courts and tribunals has been to narrow it, do you have any concerns that another model, putting right into a very legal context of having to go to a court, is going to protect people's rights?

MS WADE:  I'm of the view that at the moment, where Australia is at --- and all the States and Territories are at --- the only way forward is to provide legal protection right now.  It's simply not good enough for us to say, "Well, attitudes need to change  
and once attitudes change, inclusion will run free through our community."  That's probably true, I would like to think that the evidence I have given is true, but what is not fair in that statement is whilst people become educated and awakened to the human rights of people with disabilities, there are people with disabilities who are currently facing significant, substantial and grave human rights violations and we must, Senior Counsel, afford them with legal protection to ensure that they can bring forward actions against those who violate their human rights.

MS EASTMAN:  We talked about education for people with disability to understand their rights.  Is there not a countervailing consideration, and that is that the duty holders are educated about rights?  If you are going to set it into a legal framework, then how are we faring as the legal profession?

MS WADE:  Sorry, I don't know that I understand the question, Senior Counsel.

MS EASTMAN:  Two parts to it.  One is the education for people with disability about their rights.  The second has to be that the duty holders, so those who might be respondents, those who might be in government agencies, in service providers, they have to understand rights as well.

MS WADE:  Yes.

MS EASTMAN:  The bit in the middle is if you are going to have a model about enforcing though rights through a legal framework, how is the legal profession fitting into that and how are we faring in our understanding and knowledge of human rights, particularly CRPD human rights?

MS WADE:  Sure.  I think I I have got the question now.  Probably not --- I would not describe the legal profession as being particularly progressive when it comes to disability rights.  I think that for that framework that I have described, where there are legal protections in place for people with disabilities to preserve their rights under the CRPD, then we would need a legal profession that is (a) more skilled at disability rights law, but also (b), is more accessible and inclusive.  So I run an inclusive and accessible legal service, I would be one of a handful in Australia that do so.  And what we really need to see is for people with disabilities to be able to access their local lawyer, any lawyer, and be able to attend that lawyer in a way that is on an equal basis with others, and then building sort of on from that, we need more specialists in disability rights law so we can properly ensure that legal representation is afforded.

MS EASTMAN:  Before I ask the Commissioners if they have got any questions, what is the vision that you have for Australia into the future in protecting the human rights of people with disability?  What would that vision look like?

MS WADE:  I think my vision for Australia into the future, a future that is somewhat lengthy, I suspect, is that we have a society that promotes and celebrates disability, that we no longer advise pregnant women that they should have abortions when they  
receive the news that their child may have a disability, that we don't remove children out of disabled families, one where people with disabilities go to work with everyone else and are paid fairly, where children are educated on an equal basis with others.

I would really like to see, and perhaps I am making it my life's work to ensure that people with disabilities are treated equally with others.  But that's also to say, Senior Counsel, so fundamentally that they live a life free from violence, abuse, neglect and exploitation.  We know through this Commission that my community, the disability community, face disproportionate rates, almost double that of people without disabilities, experiencing violence, abuse, neglect and exploitation, and the vision that I have for Australia is that that ends.  That has to stop.  That future cannot be delivered in some decades; it has to arrive imminently.

I also really would look forward to having people with disabilities be active leaders of this country, to take an active role.  We talk a lot about having the seat at the table.  I would like to see people with disabilities really take up a lot of the table in conversations about them.  I think, realistically, the vision would ensure that people with disabilities are creating the conversations about them, not that they are being involved in conversations about them.  It is really one of equality and rights protection.

MS EASTMAN:  Commissioners.

CHAIR:  Yes.  Do you have any questions?

QUESTIONS BY THE COMMISSIONERS

COMMISSIONER McEWIN:  Thank you, Chair.

Ms Wade, thank you for your evidence.  Just a few questions from me.  Firstly, you mentioned earlier, at the beginning of your evidence, the dehumanisation of disabled people, how significant is that as a barrier to achieving what we want through the Convention?

MS WADE:  Commissioner, I would say that it is a significant, if not the largest barrier that we face.  We know as human rights lawyers that if you do not see a person as a human, you will in turn not see them as a rights holder, and that is a fundamental issue that is faced in Australia right now.

COMMISSIONER McEWIN:  Thank you.  My second and last question, which is sort of related to the first one, is you said that most of your work is about debating or arguing for the actual fundamental right of the disabled person.  Do you think that is also another significant barrier?

MS WADE:  Sorry, do you mean is it a barrier that we have to fight for those rights?
 

COMMISSIONER McEWIN:  Yes, the very fact, the fundamental fact.

MS WADE:  Yes, absolutely.  I would say that when presenting --- particularly cases of disability discrimination, but also when presenting cases in the social security jurisdiction before the AAT, or a guardianship matter at a state level, the primary starting point, Commissioner, is that your client should not have access to those rights, the right to social security, the right to be free from discrimination, the right to have their own decisions --- sorry, their decision making capacity be awarded to them.  So as a disability rights lawyer, you are constantly coming from a sort of --- you have lost the case until you have won it, because the recognition of those human rights is so violated by those frameworks, the very essence of guardianship law is to remove the decision making capacity, and so you are --- even though at a human rights level the presumption is that you have capacity to make your own decisions until proven otherwise, and that would still be true in the objects of the state Guardianship and Administration Act, but what we see in practice is service providers and other large institutions, much more powerful than our clients, present applications to tribunals in all sorts of jurisdictions that start from the position of "They are disabled, of course they cannot [insert right here]", and that creates a really complex environment for us in terms of presenting the case.  But also in terms of the advice that we provide to clients, we certainly don't start the advice with, "How wonderful that you have your human rights enshrined in the Disability Discrimination Act, we are just going to march down to the Australian Human Rights Commission and ensure that your rights are preserved today."  Usually that advice is more that "We have lost until we have won, and you need to go into that with your eyes wide open."  Yes, so it is very difficult for complainants and clients, when faced with legal frameworks that, Commissioner, often, they had no idea existed.  Often people with disabilities and their families don't know, understandably, about the inner workings of social security law; they just thought, when they turned 16 and they had a lifelong disability, they would be able to access the Disability Support Pension.  But the way in which that law operates, through the Social Security Act and particularly through its impairment tables, works on this prohibitive basis of violating a person's human rights to refuse them access to social security.

COMMISSIONER McEWIN:  Thank you, Ms Wade.  Thank you, Chair.

CHAIR:  Thank you, Commissioner McEwin.

Commissioner Ryan, do you have any questions?

COMMISSIONER RYAN:  Not that can be answered quickly.  I found this very interesting, but no, I won't ask questions today.

CHAIR:  Thank you.  I will now ask whether there are any counsel who wish to ask Ms Wade any questions, that is from parties given leave to appear.

If not, thank you very much, Ms Wade, for coming to the Royal Commission and  
giving evidence and for granting permission for your book, which we have in our documents, to be available to anybody who wishes to look at it.  There is some very valuable material in there and I do encourage people to have a look at it.  It is, as Ms Eastman said, very generous of you to make the contents of that book available in the manner you have.  Thank you very much.

MS WADE:  Thank you, Chair.

MS EASTMAN:  Thank you, Commissioners.  I tender Ms Wade's CV and ask you to mark that Exhibit 18.6, and also to tender an Illustrated Handbook on Disability Rights that was authored by Ms Wade as part of Equality Lawyers.  Could you receive that into evidence and mark it Exhibit 18.7.

CHAIR:  Yes, thank you.  Ms Wade's curriculum vitae will be Exhibit 18.6 and Ms Wade's book will become Exhibit 18.7.  Thank you again.

EXHIBIT #18.6   CURRICULUM VITAE OF NATALIE WADE

EXHIBIT #18.7   BOOK ENTITLED "DISABILITY RIGHTS IN REAL LIFE" BY NATALIE WADE / ILLUSTRATED HANDBOOK ON DISABILITY RIGHTS

MS EASTMAN:  I thank Ms Wade and particularly the excellent publication, which I'm sorry I haven't had the time to walk you through in detail, but thank you, Ms Wade.

MS WADE:  Thank you, Senior Counsel.

THE WITNESS WITHDREW

CHAIR:  Thank you.  Do we now adjourn?

MS EASTMAN:  Yes, we will adjourn now for one hour for lunch.

CHAIR:  Yes.  We will adjourn now and resume at 2.00 pm Australian Eastern Summer Time.

ADJOURNED    [12.59 PM]

RESUMED    [2.00 PM]
 

CHAIR: Yes, Ms Eastman.

MS EASTMAN:  Thank you, Commissioners.  Our next panel will be a panel of four advocates with a deep understanding and experience working with human rights particularly the CRPD.  I might go around this way and first introduce from our Brisbane hearing room Kelly Cox and Frances Quan Farrant.  You can see them in our Brisbane hearing room?

CHAIR:  We can.

MS EASTMAN:  From other locations we have Damian Griffis.

MR GRIFFIS:  Hello.

MS EASTMAN:  And June Riemer.  We may have to come back to Ms Riemer.  With a panel of four, all at remote locations, I will take my time to make sure we can cover everything we need to cover, but I may need to do a bit of protective interruption at times.  I am just conscious that Ms Riemer still may not be able to connect with us.  But we might start, if that's ---

CHAIR:  Yes, I think perhaps if we start, and we will do that by thanking Ms Cox, Ms Farrant, Mr Griffis and Ms Riemer for participating in the hearing and coming to the hearing to give evidence.  We are very grateful to you.  I will now ask Ms Eastman to ask you some questions.

Ms Riemer, can you hear us?

MS RIEMER:  Yes, sorry, I lost my screen for a moment.

CHAIR:  That's fine, we can hear you now.  Ms Eastman will now ask you some questions.  I assume you can see us all but I'm joined in the Sydney hearing room with Commissioner McEwin and Commissioner Ryan, so all three Commissioners involved in this hearing are in the one room.

MS FRANCES QUAN FARRANT

MS KELLY COX

MR DAMIAN GRIFFIS

MS JUNE RIEMER
 

EXAMINATION IN CHIEF BY MS EASTMAN

MS EASTMAN:  I might start in our Brisbane hearing room, if it's convenient to everyone, I will use first names.

Kelly and Frances from PWDA Australia, can I ask you each to briefly introduce yourself and tell the Commissioners what your role is at PWDA?  The Commissioners have your CVs but I'm keen for them to hear what your role is, particularly in terms of working with the CRPD.

MS COX:  I'm the Vice President on the Board of Directors.  So my role in terms of the organisation is the more overarching strategic planning and goals and stuff like that, and the staff do a fabulous job implementing.

MS EASTMAN: Frances?

MS QUAN FARRANT:  Thank you.  I'm a Senior Research and Policy Officer with PWDA and my role covers all of our work around the DRC, as well as our research work and anything to do with violence and violence prevention, as well as the NDIS and some international work.

MS EASTMAN:  Now I will turn to First Peoples Disability Network, to Damian and June.  Thank you for returning to the Royal Commission.  You have both given evidence at previous hearings including at Public Hearing 5, and the Commissioners had the opportunity to re read your evidence and your CVs from that hearing, but could I ask you to introduce yourselves.

MR GRIFFIS:  Thank you, my name is Damian Griffis, I'm the CEO of the First Peoples Disability Network, so we are a national organisation representing First Nations people with disability and their families.  I have had a lot to do with the UN Convention on the Rights of Persons with Disabilities and most recently co led the Australian Civil Society Delegation to the UN Committee on the Rights of Persons with Disabilities in September 2019.

MS EASTMAN:  Thank you, Damian.  June?

MS RIEMER:  Thank you very much, thank you Commissioners.  My name is June Riemer, I'm deputy CEO of the First Peoples Disability Network.  My main work is organisational structure and project delivery with the DRC and the Closing The Gap working groups.

MS EASTMAN:  Commissioners, you heard this morning that when Australia signs up and ratifies the CRPD, that it may have to appear before the CRPD Committee on occasions to give an account of how Australia is implementing the CRPD rights in  
Australia, and that process involves the Committee reviewing a report from the Australian Government and then participating in what are sometimes called constructive dialogue.  What I didn't mention this morning is that there is a very important piece of work in how Australia engages with the CRPD Committee, and that is that the committee members have the benefit of something called a shadow report.  The shadow report is prepared by organisations such as FPDN and PWDA and a range of disability advocacy groups, the DROs, the DPOs.  So one aspect of looking at advocacy in the context of the CRPD is to understand how Australia engages at an international level but also how Australia then brings those report cards back to Australia and takes those report cards to address laws, practices and policies.

I wanted to start by asking this panel a little bit about their experience at the international level, and then come to look at the work that they do in the Australian context.

Damian, perhaps I can start with you, because you were the leader of the delegation that presented in effect the shadow report, what can you tell the Royal Commission about how CRPD advocates work at that international level?

MR GRIFFIS:  There are several steps to the process.  The first part is, as you mentioned, the shadow reporting, so that involved significant coordination by a number of disability advocates, Disabled Peoples Organisations and Disability Representative Organisations, and that occurred two years in advance of the appearance to the Committee in Geneva.  And that group met regularly to identify priority issues that DRO and DPO organisations wanted to take to Geneva.  So organisations like People with Disability Australia, the First Peoples Disability Network, Australian Federation for Disability Organisations, Women with Disability Australia, to name a few, were key partners in that.  There were also several community legal organisations that played a role in that as well, and that group met regularly over an extended period and formulated the shadow report.  The work of Carolyn Frohmada, who was the CEO of Women With Disability Australia, was integral to that, she was largely responsible for a lot of the text in the shadow report, and then we --- then prior to going to Geneva, we identified priority issues and who were the committee members who had a particular interest in certain aspects of disability rights and we then, beforehand, try to seek meetings with them and then when we are in Geneva, we go ahead and do that.  So it's quite an involved process, it takes quite a lot of time.  It's not resourced work, I would have to say, and it does take quite a commitment on the part of all the organisations.

MS EASTMAN:  Kelly, you were part of the delegation that went to Geneva.  What can you tell the Royal Commission about how the committee quizzes Australia in how Australia has complied with the CRPD?  What were your observations?

MS COX:  I think --- I wasn't on the board of the PWDA at that time so I went as part of the Civil Society Delegation.  The Committee were very, very interested in the way that things happened in Australia for disabled people on the ground, and I think one of the recurring things that kept coming up during meeting during the week  
was that the issue that we were hearing was same things they had heard in the last review.  The 2013 concluding observations had the same things that were in the 2019 one, and that I think --- that stood out to all of them.

MS EASTMAN:  The Australian Government has provided for part of this hearing a copy of its report to the Committee.  But in addition to the Australian report, there is something called "Concluding Observations".  What are the concluding observations and what are they intended to tell us?  Who would like to answer that?

MS COX:  I can start and Frances might want to go on.  So the concluding observations, so the week at the UN, we arrived as the Civil Society Delegation with Damian leading, and we had meetings individually with the Committee members and sometimes as a whole more formal structured thing, and that leads to the end of the week where the Australian Government then also has a session, and Ben Gauntlett the Disability Discrimination Commissioner was there.  So at the end of the week, the Committee meets Government and gets to ask Government questions based on the reports they have received, the meetings they have had with us, and then from that, the concluding observations are released by a document, which are the recommendations, basically, of what the Committee has heard and read and what they think Australia needs to do to make sure that we are meeting our obligations under CRPD.  I don't know if anyone has anything else to add to that?

MS QUAN FARRANT:  No, that's absolutely correct.  Yes.

MS EASTMAN:  Damian and June, can I ask, you with the set of concluding observations, does that inform the approach that you take to do the advocacy work that you do in Australia?  Do you bring those concluding observations back to Australia?

MR GRIFFIS:  Yes, I'm happy to go first, June, and I might want to jump in.  Absolutely.  As Kelly said, the UN Committee was very disappointed, in fact, you could argue, quite scathing in terms of the lack of progress on a couple of issues in particular.  One of them was the indefinite detention of First Nations people with disability in Australian prisons where there had been no progress.  There was also significant commentary on the lack of progress in terms of the issue of sterilisation of women and girls, which I know the Commission has investigated in previous hearings.  There was also particular concern from the European Committee members about the way that Disability Representative Organisations are structured and perhaps the lack of, it would be fair to say, financial support for representative organisations, which is a different structure from the European structure.  It would be fair to say that the committee --- and we would submit this view --- believes that Australia should be held to the highest possible standards in terms of human rights because we are such a wealthy country and we were very encouraged to see that view because we would support that completely.  Yes, it absolutely informs our advocacy here at home, no question.

MS EASTMAN:  I wanted to ask you, both organisations, about how the CRPD has  
influenced and shaped the work that you do in Australia.

June and Damian, can I start with you.  When we read the CRPD, there is no specific mention of the rights of First Nations people or Indigenous peoples with disability in the Convention.  We have heard a lot about the cross cutting rights, that there is a provision dealing with women and disability, for example.  So can I start by, how does the CRPD fit with the protection of human rights of First Nations people?

MR GRIFFIS:  One of the shortcomings of the UN Convention on the Rights of Persons with Disabilities, as you just said, was there is no specific article on the rights of Indigenous people with disability.  We would say that is very problematic.  Indigenous people with disability are mentioned in the preamble and you can draw an association to some of the articles, like the articles on culture, but we would say that definition of culture is very much a western sort of definition, as in being able to access cinemas and play houses and all those obviously important thing, but not necessarily about Indigenous culture.  So the reason why that happened was it's pretty simple, really, when the UN Convention was written up, there were no Indigenous voices there during the process of actual writing up of the Convention.  So we worry that that is still a shortcoming of the Convention.  Having said that, though, that is increasingly recognised, no doubt, by the UN Committee and that's certainly something that is good.

The only other thing I would say is the other thing that concerns us is we can't necessarily rely on other human rights instruments either, so the Declaration on the Rights of Indigenous People doesn't have the status of a convention, obviously, and is pretty silent on disability.  The Convention on the Rights of the Child is the best one we can use in terms of rights of Indigenous children with disability.  And the only other convention that we have been quite active around is the UN Convention Against Torture and Inhumane Treatment where we often frame indefinite detention.  But yes, that is a shortcoming of the CRPD convention still.

MS EASTMAN:  One of the concepts in the CRPD is this idea of intersectionality, so combinations of rights.  That expression "intersectionality" is not something that really reflects a First Nations experience.  What is better language that we should be using or thinking about to understand intersectionality with respect to First Nations people with disability?

MR GRIFFIS:  June will want to make a comment, I'm sure.  The language is clumsy and technical.  We would tend to talk about whole of life.  June can talk to what makes it strong.  They are better terms than dividing rights up into disability and Indigenous.  Our people with disability have multiple identities.  There are people with disability and Indigenous people, and of course there are other identities too.  So it is a technical term and an important one, but one that we wouldn't necessarily use in community itself.  June.

MS RIEMER:  Yes, correct, so we would say every person has the right to live on country and be included in culture, and particularly those with disability, we know  
they're a resilient race, and so with regards to the CRPD, unless you include culture and country as a crossover, an intersectionality around how a person lives their life, you are not supporting them to live their best life.  So there's many gaps that we would see in regards to our First Nations people.

MS EASTMAN:  I might come back in a moment to ask you about how on the ground you approach these different sets of rights and bring them together.  Before I do that, can I come back to Kelly and Frances.

In terms of PWDA, I think you have been an organisation very active in Australia for over 40 years now.  How is the CRPD relevant to the work that you do?

MS COX:  I would like to say it's the benchmark, it's one of few things that you can hold up and go, "This is how it should be", compared to how it actually is, but I will let Frances go into more detail.

MS QUAN FARRANT:  You are absolutely correct.  A benchmark, but it is also just the beginning.  It's not the ultimate incarnation of the rights for disabled people in Australia.  It's the beginning.  So in terms of our work at PWDA, we do both systemic work and we do individual advocacy.  So you would be aware that PWDA was involved at the very beginning of the development of the Convention, where we went out and we did the field research.  So you would be aware of that.  We have used the CRPD in our systemic work and we refer to it constantly in our systemic work, in all the reports and submissions that we make.  We would also use the concluding observations, in particular around Article 12.

Then in our individual advocacy, this is where it gets very, very difficult.  Because the application of the CRPD in individual advocacy is actually more of an education exercise.  Because the CRPD has not been fully implemented in domestic law across jurisdictions.  So we have advocates across Australia who are navigating various pieces of legislation and whilst the CRPD, yes, it's our benchmark, yes, it's what we want to see, we are working with legislation that doesn't recognise it, let alone recognise disability rights.  So we are faced with barriers all the way, barriers for the people that we are working with, in order to operationalise human rights for people with disability.

MS EASTMAN:  When you are talking about operationalising human rights for people with disability, what exactly do you mean by that?

MS QUAN FARRANT:  Good question, Kate.  That means that people with disability are recognised as full citizens in this country and have access to every system and structure, just like everybody else in this country.  That's what operationalising human rights is.  The CRPD, as you know, has a specific agenda for social change.  It is transformative equality.  That's what it's about.  That's what the operationalising is about.  And we are faced with barriers because we have got these interpretive declarations which no one has any appetite to remove.  If we don't have it in the law, we can't operationalise it.  We are just faced with a brick wall.  And the  
people who are most affected are the people that we are working with.

MS EASTMAN:  Before I ask you some questions about that, it is the case that PWDA also looks to some of the other international conventions, and some of your recent work has focused on what's called OPCAT, being the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, so it's a bit of a mouthful but we have put OPCAT in our category of terms.  This is going to be some new international legal standards.  How is the OPCAT relevant to the work you are doing and what have you been doing?

MS QUAN FARRANT:  It's completely relevant.  We have got people who have been deprived of their liberty, oftentimes for their bulk of their adult lives.  With people in detention, disabled people in detention, who are deprived of their liberty.  We have people who undergo inhumane forced treatments, particularly here in Queensland, multiple times, multiple times.  So the OPCAT is absolutely essential in the way that we argue systemically for change and for the rights of people with disability.

MS EASTMAN:  I want to open it up, because one of the real challenges in taking international laws, and particularly human rights that might be expressed in aspirational terms, how do you take those rights and make them concrete and, as you say, you operationalise them in Australia?  What's the way in which you approach that task?  Perhaps I'll ask June and Damian.

MS RIEMER:  June speaking.  I think we need to share the information and share about these rights across communities and embed that expertise with our service system and our communities, that you have a right as a First Nations person to be included in society at all levels.

MS EASTMAN:  Damian, how aware are First Nations people of their rights in the way June has described?

MR GRIFFIS:  I think this is one of the big challenges we face.  As June outlined, we see it as a priority educating and informing our community members about CRPD, because there is a very serious lack of awareness.  In fact, I could probably count on both hands the number of First Nations people in Australia that actually understand the mechanisms of the CRPD and the articles within it, and we need to educate and inform our communities so they can start effectively self advocating.  So to that end, the Victorian Government has recognised that need, and they fund us to deliver what's called the Lester Bostock Human Rights Training Program, so that's named after our founding elder, uncle Lester Bostock.  That is about running workshops across Victoria with community members so that they understand disability rights.  It's a very serious weakness.  As June touched on too, we also need to educate and inform our wider First Nations justice sector.  They don't really understand some of these rights.  It's not a malicious thing, but we still see some of our community members being discriminated against by perhaps Land Councils or whatever it might be, again not done maliciously but simply because there's a lack of  
awareness, say, that you need to provide an Auslan interpreter at a Land Council meeting, for example.  So we really need to invest across the country.  We have had requests for that training in language, in traditional language.  The idea being there that it's not possible for FPDN to be in every corner of the country, but the next best thing we can do is get mob to understand themselves what their rights are, so when they enrol their young child with a disability at school, they can say, no, my child's disability needs to be accommodated here or I have the right to go to the chemist and you have to get rid of that front step, or whatever it might be.  So all those things.  I'm sure June would love to, if we get a moment, to touch on how we deliver that training, because it is done very culturally accessibly and we often do it through art.

MS EASTMAN:  While we are on the topic, I don't want to forget it and not come back, June, do you want to talk about how the education of rights through art, and language and culture, how does that work?

MS RIEMER:  Yes, so the training program we developed is to break down, through traditional artwork, the CRPD articles.  So for example, the right to justice, the right to education, the right to be included or accessibility.  We have developed cards that allow people, and we have broken it down into simple English for our community, what those articles mean, but we have painted it also in traditional artwork.  So people understand, they connect with the artwork as a First Nations person but then they have the cards to inform them of appropriate articles.  So when they are accessing community, as Damian said, whether it is housing, education, the Disability Support Pension, they can use those articles in their words to say, "I have a right to access this program."  An example, I'll just hold up one of the cards for you, is access right to justice.  I don't know if you can see that.  It is done in traditional art work, and what it means on that article 35.  So we have developed all the articles around appropriate art work, and we do these in a two or three hour workshop with community.  We also have developed human rights advocacy resources, so what does advocacy mean in your life, in regards to the CRPD?

MS EASTMAN:  Coming back to Kelly and Frances, are you aware of whether the Australian Government has published an Easyread version of the CRPD?

MS COX:  Not that I'm aware of.

MS QUAN FARRANT:  Not recently that I'm aware of, but it's particularly accessible.  There are a range of links on the government website, particularly in relation to the concluding observations, though they are not all complete, for example, they don't have a copy of the most recent on concluding observations up on their website, no, not accessible.

MS EASTMAN:  Do they have the concluding observations in Easyread, for example?

MS QUAN FARRANT:  No.  Well, they don't have the concluding observations up the last time I checked, which was on Friday last week.
 

MS EASTMAN:  In terms of how people with disability are aware of their rights, Easyread is one way of assisting people with intellectual disability to perhaps understand their rights in an accessible form.  What is your knowledge or awareness of other ways in which rights can be communicated to people with disability?

MS COX:  Could I just say that having it in Easyread is one thing and it's great, but people need to know that their rights exist, to know to even go and look for something in Easyread.

MS EASTMAN:  Yes.

MS COX:  In most cases, people don't know they have rights, much less where to navigate on the internet to find it in an accessible format.

MS QUAN FARRANT:  Absolutely, Kelly.  One of the things we do is we run workshops around the NDIS, we run various other programs around violence prevention, and we include the CRPD in explaining that in all of those programs that we run.  One of the things that comes back to us on a regular basis is people are shocked they even have rights, they had no idea.  So, yeah, part of the work we do is simply going out and educating people, not just people with disability, I might add, service providers as well, and government agencies.  They are not necessarily across it, I can say, with confidence.

MS EASTMAN:  That's a very helpful step into the next area that I wanted to ask you all about, and that is, it's one thing for people with disability to understand their rights, but there is also those who have duties and whose activities may impact on the lives of people with disability and their rights.  What has been your experience in the level of knowledge about the CRPD for the human rights of people with disability on the other side, which is the duty holders?  That might be government, that might be conversations, that might be service providers.  But it might even be family members and supporters.  I think, Damian, you have touched on this a little bit in terms of the justice system and community.

Kelly and Frances, can I start with you.  What is that level of awareness on the other side, the duty holders?

MS COX:  Very limited.

MS QUAN FARRANT:  Extremely limited, particularly when it comes to family members.  I can say that in our experience in the work that we have done in the field, both through individual advocacy and our project work, not all family members are particularly happy about the concept of people with disability having rights.  I know that's not comfortable, but gatekeeping is a real thing.  We often think of gatekeeping as being a service provider thing and certainly it is.  It also extends to beyond that.  In terms of service providers, I think widely --- in the last couple of years, perhaps the language of the CRPD has been applied in various aspects around policies and  
procedures, but I would say that it is simply using our language and that it is not more of a tokenistic thing.  I do not believe there is any full understanding of what human rights for people with disabilities is really about, apart from ticking a compliance box.

MS COX:  Yes.

MS QUAN FARRANT:  When it comes to government and the layers of government, this is again problematic because the two mechanisms for the application or implementation, rather, of the CRPD, is the National Disability Strategy and, of that, the NDIS.  The National Disability Strategy, even when we had the previous iteration, was not well understood nor well known outside of DSS, federal DSS.  And we certainly had perhaps heated exchanges with certain state government departments who objected when we put references to the CRPD in reports we were preparing for them, because they didn't think it was relevant to a state.  So part of our job was to explain to them, "Well, actually, the National Disability Strategy, to which you have signed up to as part of the implementation of the CRPD, that influences all your disability policies, including this piece of work."  So that's very disappointing.

We also forget, it's not just the states and territories, but the National Disability Strategy covered local government, and we are not talking about that enough at all.

MS EASTMAN:  Damian and June, in the context of your experience, you have got First Nations people's rights and disability rights.  When you come to have the conversations with the duty bearers, how do you navigate the First Nations and the disability rights?  Is it possible to speak to them together or are they different conversations because there might be different audiences?

MR GRIFFIS:  I think intersectional discrimination, using that term for the purposes of the hearing today, still confounds the system.  The Commonwealth Government, state governments, local government, the local shop keeper for that matter.  And we are still in a situation where we would say most of our community members with disability walk in three worlds: the disability rights world, the First Nations rights world, and then the everyone else world.  Some examples of how that plays out practically, which again demonstrates how systems don't know how to address intersectional discrimination, it's not unusual for us to get a call from a parent, say, when they are enrolling a young Aboriginal person with disability at school and they will often ask us the question, "Should I tick the disability box or the Aboriginal box when I enrol my child at school?"  What they are saying there sometimes is, "What will get me the best potential resources or support for my child?"  So the thing that is of course silly about that is that they have both identities.

The other thing I would say, I would say there is very little understanding of the CRPD, talking in generalisations, by duty holders across the country.  We don't even really, in Australia, haven't really even had a conversation about things like ableism, for example.  So we could talk about racism --- we can't talk about racism today, in  
some ways, because it's such a sensitive issue, but racism is a term that Australians are familiar with.  Ableism is not a term that people have ever really engaged with, and that is something that shows we have such a long way to go in terms of raising the profile of disability rights in general in Australian society.  I don't think it's a common concept, I don't think there's enough knowledge of obligations on the part of duty holders and I would relate that to the fellow who runs the pub on George Street in Sydney to BHP.  It's not part of the Australian vernacular, and I think we need to change that still, I think we have a very long way to go yet.

MS EASTMAN:  I mentioned this morning that the Royal Commission, in the preparation of its Interim Report, and also what the Royal Commission has heard to date, is this critical role that advocacy groups play in often translating rights to people with disability and to duty holders, but sometimes the bridge between these two worlds, the CRPD has a special role for DPOs, DROs.  What's been your experience in terms of being that bridge and how do you discharge that function?  I don't mind who goes first on this.

MR GRIFFIS:  To be honest, Kate, I think this is again one of the criticisms that the Committee makes of the Australian system, if you like, in that the Committee has often reflected that the resourcing of Disability Peoples Organisations and Disability Representative Organisations is not satisfactory in terms of being able to meet need.  So obviously the way we try and do that is through individual advocacy, systemic advocacy, but the demand certainly from a First Nations perspective is so great that it's impossible to meet individual advocacy needs.  We need to --- I think there's a problem with the language too, I would argue.  There is still such a sensitivity on the part of some governments of the term "advocacy", it's often viewed as perhaps adversarial and I think we need to change the way government systems think about it.  It's not necessarily about adversarial outcomes, it's about support providing to a person with disability so they can participate in community life.  That's a long title for a job, but that's really what advocates do, they provide support to community members so they can have their rights met.  I think we need to --- governments still have a, "Here comes an advocate, look out, this is going to be another fight" sort of thinking, when what we need to be thinking about thinking is, "No, this is what a person requires, support required to think about participating in life".  Then we might get less adversarial stuff that can sometimes be the perception of government, I think.

MS EASTMAN:  Kelly and Frances, can I just mention this when we spoke to AFDO last week, someone in the group told us this.  She said:

I liken us to being a rubber band on its full stretch.  We are so busy in survival mode that when our lives fall apart, if a carer doesn't turn up at the day and the time that they are supposed to, then that's a life altering day.  So people don't realise that they have the right to ask for supports and to expect those supports will be delivered at the pre arranged times.

They told us that often it's not until a person is at a crisis or an acute situation that they may find their way to an advocacy organisation like yours and at that point they  
become aware of their rights but essentially they are in crisis mode.  How as an advocacy organisation do you approach that under this broader umbrella of CRPD rights and protecting rights?

MS QUAN FARRANT:  Speaking from an individual advocacy point of view, we have intake, obviously, and you are absolutely correct.  Most of the people who come to us are in crisis.  A good 20 per cent of the people who come to us have experienced some form of violence.  One of the biggest issues we face, this is across all or advocacy work in Queensland and New South Wales, is homelessness.  Homelessness, people are on the brink.  And it's regardless of whether they are in NDIS or not.  The CRPD doesn't necessarily articulate completely the right to housing, but the right to housing is a human right.  The right to live your life as a citizen is certainly in the CRPD.  So it's extraordinarily difficult.  As I said earlier, we are faced with all these barriers because the human rights of people with disability are not articulated in domestic law anywhere in Australia outside of the 1992 Disability Discrimination Act, which is less than adequate, particularly now.  So crisis is something that we face.  How do we resolve that with CRPD?  We try.  And education is part of that.  As Damian pointed out, we are like a stretched rubber band.  We don't have enough resources to deal with the demand that we are facing, and I assure you, we are facing pretty heavy demand.

MS EASTMAN:  Coming to the question of accountability, if we are going to have a rights based framework, there has to be accountability for the duty bearers.  What is your view about how accountability for meeting the CRPD obligations operates in Australia?  Kelly and Frances, can I start with you.

MS COX:  I think one of the things, and I think it's come up earlier today, and certainly in our discussions ahead of this, is that CRPD isn't reflected in common law.  So we need to put that disability or CRPD lens over existing laws and seeing whether they are in line with it, and they need it, and can people's rights be realised under existing laws.  I will let Frances elaborate.

MS QUAN FARRANT:  Yes, that's a continuing theme, obviously, the fact that the CRPD isn't reflected in domestic laws, that we have interpretive declarations on Articles 12, 17 and 18, which create barriers.  But also, in terms of an adequate mechanism, and this was brought up in the Concluding Observations of 2013 and in 2019 again, that there is not an adequate oversight mechanism.  In the 2019 Concluding Observations, the committee pointed to the Australian Human Rights Commission as being that place where that could take place.  There has been no progress on that.  There is inadequate monitoring and evaluation across disability policy from a federal level and state level and territory level, regardless.

The National Disability Strategy, the new one, once we get it, is housed within DSS.  It is siloed away.  It is supposed to be a broad policy.  And it is one of the mechanisms or the chief mechanism for implementation of the CRPD and should include in it monitoring and evaluation and accountability.  I don't know what the new National Disability Strategy is, I have not had the privilege to see it, and we  
don't know what's going to happen there.  But there isn't a mechanism that is satisfactory and there does not seem to be any appetite to develop a mechanism that is satisfactory.

MS EASTMAN:  Was there any form of mechanism in the National Disability Strategy that operated between 2010 and 2020?

MS QUAN FARRANT:  No.  This again was brought up in the Concluding Observations of 2013 and then reiterated again in 2019.  It was inadequate.  The Committee found it inadequate, wholly.

MS EASTMAN:  Damian and June, coming to that question of accountability, I think, Damian, you have said that maybe First Nations people walk in three different worlds.  In the three different worlds, is accountability equal between those three different worlds?

MR GRIFFIS:  No, in a word.  One of the things that we have put forward to DSS and government more generally over the years is a more formal mechanism that can operate under the Australian disability strategy or the National Disability Strategy, as it is known, that it draw upon the structure of Closing the Gap.  We have suggested for a long while now, why isn't there a similar structure for disability?  So perhaps on 3 September every year, the Australian Prime Minister of the day has to address the Australian Parliament about a whole lot of measures as they relate to Australians with disability, including our people with disability.  We think that is an idea that has a lot of merit, and would think that would be a fairly immediate action that could happen.  Closing the Gap has its failings, of course, and from a disability perspective we would be the first to say that.  Mind you, over the last couple of years, there has been change, so there is recognition of disability under Closing the Gap.  Eventually that system is moving.  But why can't we have a similar mechanism that focuses he on disability?  Also, I would have thought there are a number of very measurable things in disability that state governments could provide: the education experience of Australian kids with disability, for example, or how many accessible train stations we have or whatever it might be.  We have long advocated for that and wonder why there isn't some sort of structure that is similar to the Closing the Gap one that is focused on Australians with disability.

MS EASTMAN:  I might turn to the Commissioner, because my final question for all of you is, what do you think needs to be done now in Australia to better implement the CRPD, or you may speak to that in terms of a vision looking forward.  Can I leave that question with you, but just ask the Commissioners if they have got any questions before the final question.

CHAIR:  Thank you.  I will ask first Commissioner Ryan.  Do you have any questions?

QUESTIONS BY THE COMMISSION
 

COMMISSIONER RYAN:  Can I ask just one.  Commendable as it might be to have the CRPD codified in some way and give lawyers the opportunity to go and operate in the courts, is it not so that the biggest barrier to implementing the rights of people with disabilities comes from our parliaments and the allocation of budget measures, and would not a system that in fact Mr Griffis has just suggested, be in fact an even more important way of achieving the implementation of the CRPD?

MR GRIFFIS:  Yes, I'm happy.  I would argue, Commissioner, we need both.  We need a strong and robust CRPD application in domestic law that could inform parliaments actually, but we also need a culture within the Australian parliamentary system and the state and territory parliamentary system that actively seeks members with disability.  I think it's reflective of the long way we have to go yet to realising the rights and the protections of Australians with disability in general.  I would argue both, definitely.  Parliaments should hopefully be reflective of Australian society and the way they are made up, and I don't think we do well in any parliament in Australia on that.  But also, we need to understand that as a society, there are some basic human rights that people with disability have, and it's everyone's obligation to meet those rights.

COMMISSIONER RYAN:  Thank you.

MS COX:  We need people to care about our rights as disabled people, and when they don't care, we need a way to enforce it, I think is --- at the end of the day.

MS QUAN FARRANT:  Yes, it has to be in domestic law and there needs to be a monitoring and evaluation mechanism that is clear and outcomes that are ticked.  It has to be both ways.

MS RIEMER:  In regards to the NDIS, we don't need to see First Nations or any person with disability as a burden to society.  So it is changing the language, changing the imaging, and that's what we don't hear from the government.  It's time for change; we want actions for people with disability to be first and foremost in any policy.

CHAIR:  Commissioner McEwin?

COMMISSIONER McEWIN:  Thank you, Chair.  Thank you to all of you for your evidence and thank you also for the advocacy work that you and your colleagues do for disabled people.  We have heard in this Royal Commission the issue of disabled people not getting access to advocacy services.  We have heard things like gatekeeping, for example, Frances mentioned gatekeeping, and also kept out of their --- they are out of reach, they might be isolated in group homes, et cetera.  What do you think the Royal Commission should be looking at carefully to ensure that we can address the issue of people getting basic access to advocacy?

 
MS RIEMER:  The funding of the NDAP program needs to be further monitored and supported, there's currently not enough advocates nationally.  That was one of the recommendations with the National Disability Advocacy Program.  There is not enough First Nations advocacy groups, and we need more work around supporting self advocacy for people with disability.

MR GRIFFIS:  Yes, I absolutely echo those points, Commissioner, from Aunty June.  I would add onto that, we also need to recognise that our advocates must have capacity to get out into regional and remote Australia.  I think that still remains an untold story in many ways.  The COVID situation has exposed this only further.  The situation for many First Nations people with disability in regional and remote Australia, to be blunt, is one of abject poverty.  The only way to get meaningful support to our community members out there is to go see them on country and try and seek support.  So the National Disability Advocacy Program is inadequate in funding, perhaps we might need to change the name and make it more about supports for people with disability so there is less sensitivity on the part of governments, but this is about creating opportunities, so people can participate in community life, as is their right.

I think we still lack a focus, like June said, we don't have a focus on First Nations people with disability and we are tired of arguing for that, frankly.  There needs to be a specific First Nations disability advocacy program, and if I can be blunt, I don't care where it comes from but it's long overdue, and we need it to be implemented a decade ago, where that case has been well and truly made but it needs to have within a recognition that it has to be about engaging all of our communities across regional and remote Australia as well.

The other thing is investing in education.  So the other element is investing in the human rights training programs that FPDN and others offer, so that can effectively create a self advocacy movement so people can start speaking up for themselves, which is their right too of course.  So I think there are clear ways forward, it's just a matter of government needs to reach into their pocket, like they should have done a decade ago, I suppose.

MS COX:  In the absence of fully funded advocacy support and your reference to people in group homes and people in day programs and all of that, I think it's important for the Commissioners to know that as part of the NDIS rules or policies, if you are a support coordinator or a service provider, you are not allowed to advocate for the people you support, it's the rule, particularly for support coordinators who are providing support, like Damian's definition of "advocacy" is correct, it is providing people support to meet a particular outcome, which I would argue is also the role of a support coordinator.  But they can't advocate.  It's a very confusing line and results in bad support sometimes because they are trying not to break the rules and it affects the outcome.  I think, again, Damian's view of the government's view of what advocacy is, he's right, it should not be seen as a bad thing.  It's a positive thing if somebody gets help to communicate what they need.

 
MS QUAN FARRANT:  Yes, and just to elaborate on advocacy and the right to representation, I mentioned earlier that our advocates are working at full case loads and we also do NDIS appeals, and we have a backlog of NDIS appeals.  I'm sure you are aware of that, with the AAT.  It is a David and Goliath battle for a person with disability to go to the AAT.  Why is a disabled person not allowed to have a lawyer?  Why does the NDIA have lawyers, and yet a person with disability does not have a lawyer?  It's unfair.  The power imbalance is outrageous.  And why would you deny a person with disability the right to equality before the law, which is, of course, Article 12?  So we need to get rid of those interpretive declarations, just as a final note.

COMMISSIONER McEWIN:  Thank you very much, all of you.

Thank you, Chair.

CHAIR:  Thank you.

One of the themes we have heard today is related to the importance of translating principles of the Convention into domestic law.  I'm interested, particularly from Ms Cox and Ms Farrant, how would you do that?  Take Article 12, for example, that you have referred to.  Let me just remind people what Article 12 says because not everybody will know the Convention off by heart.  That reaffirms:

State parties reaffirm that persons with disabilities have the right to recognition everywhere, as persons before the law.

Subparagraph (2):

States parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

I will limit it to subparagraph (3):

States parties shall take appropriate measures to provide access to persons with disabilities to the support they may require in exercising legal capacity.

I am interested in how you suggest that those principles in article 12 could be incorporated into domestic Australian law.

MS QUAN FARRANT:  First of all, we remove the interpretive declaration, number 1.  Second of all, as per the CRPD Committee's recommendations in 2013 and 2019, all legislation, in particular in regards to Article 12, be reviewed and that accommodation, as defined by the CRPD, are put into such legislation and policies to support people with disability to have access to justice.  I also refer to the Australian Law Reform Commission's 2014 inquiry, which looked into Article 12 and said:

For the purpose of this inquiry, it is the first declaration relating to article 12  
and decision making, which is of principal concern.  There are differing views about the effect of this declaration, particularly in relation to the role of substitute decision making which prompt a reconsideration of its retention.

So that was the Australian Law Reform Commission.  I am aware of the fact that there is confusion within Australia, as identified by the Australian Law Reform Commission, about what is substitute decision making and what is supported decision making.  The CRPD is very, very clear: supported decision making supports the person to be represented before the law.  It is not difficult.  It can be done.

CHAIR:  And it has been done, hasn't it, in at least one jurisdiction?

MS QUAN FARRANT:  There has been in Wales.

CHAIR:  I mean in Australia.

MS QUAN FARRANT:  South Australia introduced the Disability Justice Plan, I believe, however I am unsure as to its full implementation at this time.

CHAIR:  Some of the provisions are in Victoria in their new guardianship legislation?

MS QUAN FARRANT:  Some of the provision, yes.  It needs to have a national impetus.  This needs to come from the Commonwealth.  It has to come from the Commonwealth.  Too often the responsibility is pushed aside or deflected on to the States and Territories.  Yes, we have a fractured jurisdictional system, but we have to have the responsibility come from the Commonwealth, and that is very clearly directed from the Committee.

CHAIR:  Thank you.

MS EASTMAN:  I think the question that I asked about what needs to be changed has probably been answered in the questions from the Commissioners, so unless there are any final matters that that the members of our panel would like to raise ---

CHAIR:  Before we finish, I will ask any of the legal representatives present remotely if they have any questions of members of the panel.

If not, thank you.

Sorry, Ms Eastman, I might have interrupted what you were about to say.

MS EASTMAN:  That's quite all right.  I wanted to check that there is nothing final from the members of the panel that they want to say, particularly around what could be done to implement the CRPD rights and alternatively their vision for what Australia should look like in relation to rights protections.  Any final comments or have y 
ou covered that in the questions from the Commissioners?

MR GRIFFIS:  I won't miss the opportunity, Kate, if that's okay.  Obviously some sort of enforceable mechanism, a bit like Closing the Gap, we think that has merit as an idea, needs some work to actually give it that life.  We think that has merit as in it would elevate disability rights.  One of the things that we see with the Closing the Gap day, even though we can certainly critique it, at the very least, every day, one day in every year, the Prime Minister has to elevate Indigenous rights, it's on the national agenda.  We think something that like, but in consultation with people with disability and their representative organisations, really has merit as a way to get more focus on disability rights.  I think the lack of focus in Australian society is really --- it has a very long way to go and I think that may be one way to elevate things.

MS COX:  Thank you, I agree with Damian.  I would add that we need the Disability Representative Organisations and disabled people involved in whatever gives the outcome and the way forward.

MS QUAN FARRANT:  Nothing about us without us.

MS COX:  All of us, not just the non-Aboriginal people or the straight people, it has to be the whole community.

MS EASTMAN:  I thank you all very much for your time and the care and thought that you have brought to preparing for the session this afternoon.  Thank you very much.

CHAIR:  I would like to endorse what Ms Eastman has just said also.  Thank you all for coming to the Royal Commission and giving evidence, and as Ms Eastman has said, for the thought that has gone into the contributions you have made today in the panel.  We thank you very much.

THE WITNESSES WITHDREW

MS EASTMAN:  Commissioners, we will take a short adjournment and then we will resume with Professor Andrew Byrnes.  I think we had 15 minutes but I'm happy if you want to reduce it to 10 minutes.

CHAIR:  It is now 3.06 pm.  We will resume at 3.16 pm.

MS EASTMAN:  Thank you.

ADJOURNED    [3.06 PM]

 
RESUMED    [3.16 PM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Commissioners, I omitted to ask you to receive into evidence the CVs of the participants in the previous panel.  We will ask you to mark those documents Exhibit 18.8 through to 18.10.  We will prepare a list for ---

CHAIR:  Shouldn't there be four?

MS EASTMAN:  No, there are three CVs of the panel, and we have given you the reference to where the CVs have been addressed in earlier exhibits.  Rather than make this confusing, we have circulated a list to all the participants and the parties with leave so    

CHAIR:  The curriculum vitae that you have mentioned will become Exhibits 18.8, 18.9 and 18.10.  Thank you.

EXHIBITS #18.8 TO #18.10   CURRICULUM VITAE OF PANEL MEMBERS

MS EASTMAN:  Thank you.  I can now see Professor Andrew Byrnes on the screen.  He is our final witness today.

EMERITUS PROFESSOR ANDREW C BYRNES

CHAIR:  Professor Byrnes, thank you very much for agreeing to come to the Royal Commission to give evidence.

PROF BYRNES:  I am very grateful for the opportunity.  Thank you.

CHAIR:  I will now ask Ms Eastman to ask you some questions.

EXAMINATION IN CHIEF BY MS EASTMAN

MS EASTMAN:  You are Emeritus Professor Andrew Byrnes?

PROF BYRNES:  That's right.

MS EASTMAN:  Your address is known to the Royal Commission?

 
PROF BYRNES:  Yes.

MS EASTMAN:  You have been, for a long time, a Professor of International Law and International Human Rights Law, most recently with the University of New South Wales?

PROF BYRNES:  Yes, that's right.

MS EASTMAN:  You have provided to the Commission a very detailed curriculum vitae setting out the various positions that you have held in the academy and your publications and some of the broader consultancy and research work that you have undertaken.  Can I summarise it in that way?

PROF BYRNES:  Yes, that's fine.

MS EASTMAN:  I am partly doing so because I am keen to get to the questions that I need to ask you.  We are going to focus this afternoon on the exercise of translating the CRPD and for that matter other international human rights law into Australian law and practice.  The Commission has heard during the course of today that the CRPD as an international law is not automatically part of Australian law.  Can I start by asking you a few questions.

International law creates obligations between nation states or countries, so it is the law that applies between countries; is that right?

PROF BYRNES:  That's correct, yes.

MS EASTMAN:  There are lots of different forms of international law, but the one we are focusing on is called a treaty, and a treaty is a bit like an international law version of a contract between perhaps two states or in some cases many states, like the CRPD?

PROF BYRNES:  Yes, that's an analogy that is often used, although we get multilateral treaties, which is often seen as also a form of legislation.  But either analogy captures certain aspects of what a treaty is.

MS EASTMAN:  While an international law might identify individuals as, for example, the beneficiaries of rights, the international law is about creating legal obligations for nation states rather than creating rights between individuals or for corporations; is that right?

PROF BYRNES:  Yes, I think that's --- as a general proposition, that's correct.

MS EASTMAN:  I'm going high level at this point.  We will get into the detail shortly.

CHAIR:  Does it follow, Professor Byrnes, that duty bearers under international law and specifically pursuant to international conventions can only be states?
 

PROF BYRNES:  No, it doesn't.  And the reason I said ‘generally’ in terms of obligations is that there are certain areas where obligations are imposed directly by international law on individual or groups, particularly in the area of international humanitarian law.  And in the area of corporations, there is a sort of evolving developments there, but they haven't gone quite as far as international humanitarian law, but the sort of obligations we are talking about, it's focused really on the State and the State may have a duty to regulate the activities of private actors within its jurisdiction, to make sure that they too don't infringe on human rights.

CHAIR:  In the case specifically of the CRPD, that is the position, I take it?

PROF BYRNES:  That's right, yes, under --- it is specifically set out, indeed, in a number of the treaties that the obligation is to take all appropriate measures to ensure that private parties comply with or don't engage in discrimination.

MS EASTMAN:  We have heard international law is not automatically part of Australian law, and this is a feature of our legal system.  When and how will international law be incorporated or become part of Australian law?

PROF BYRNES:  There are two broad ways in which that happens, and I'll speak about the major ways rather than the footnotes.  The first is obviously the transformation or incorporation by legislation, so a primary statute, primary legislation, and that can be through a statute of the Commonwealth or the States or Territories.  Secondly, by means of subordinate legislation or delegated legislation made by the executive government, generally within the framework of legislative authority conferred by the Parliament on a minister or someone else to make such regulations.  In both cases, what is ensured there obviously is that Parliament is involved in changing, making, authorising changes to the law of the land and supervises those, in the case of delegated legislation, so that is the underlying principle.  So the executive, which can unilaterally enter into treaties on behalf of Australia and bind Australia internationally, can't thereby change the law of the land without going through the Parliament.

MS EASTMAN:  When you are talking about the executive, are you talking about the national government at the Commonwealth level, so the States and Territories, for example, can't say, "We are interested in signing up to some international law"; so Queensland couldn't go alone to sign up to a treaty, could it?

PROF BYRNES:  The answer to that question is no.  But when it comes to implementation, of course, depending on the particular treaty and the internal political arrangements, state legislatures may in fact be the ones who do the legislative implementation by primary or delegated legislation.  There are quite a few instances of that.

MS EASTMAN:  In this country, the Parliament doesn't have to give permission to the Executive before the Executive signs an international agreement, but Parliament  
does have some role in reviewing or deciding whether or not Australia should take the next step, which is ratifying a Convention before it has those international legal obligations?  Sometimes we hear about signing and ratifying, and what happens between those two steps in Australia?

PROF BYRNES:  Perhaps it's worthwhile just describing the way in which Australia becomes bound by a treaty, what's known as being a State party to a treaty.  Under the sort of treaties we are talking about, multilateral human rights treaties, there are two procedures generally, one is that you first sign it and indicate general support, you are not bound by it, you can't subvert its object and purpose but you are not bound by it in its entirety.  And then you can follow up by what's called ratification, ratifying the treaty, and then you do become bound by it.  Or, you can just come in with one fell swoop and do what's called acceding to it, so accession.  It has the same impact.

In Australia, you are quite right, there is no constitutional or legislative requirement that the Executive seek the permission of Parliament before it signs or ratifies the convention.  However, from the mid 1990s there has been an arrangement through Parliament by which the government must take to Parliament certain categories of treaties where it is proposing to take what's called binding treaty action, and that means to ratify or to accede to in the case of these sorts of treaties.  They may go before the Joint Standing Committee on Treaties, which may carry out a hearing into the desirability of Australia becoming party to that treaty.

MS EASTMAN:  They do something called a national interest analysis to work out whether Australia taking on international law obligations is in the national interest?

PROF BYRNES:  Yes, that's correct, and it's a sort of ‘explanatory memorandum’, but it details things like what the treaty means, whether Australia is broadly in compliance, what sorts of consultations have been undertaken into the treaty at the national level.

MS EASTMAN:  We are aware that there was that process undertaken in Australia for the CRPD.  I will ask perhaps the representatives from the Australian Government about that tomorrow.  But does a country like Australia have to have, if I use the colloquial expression, its house in order before it takes on the international legal obligations?

PROF BYRNES:  In theory, no.  They will often, I think, as Australia often says, and other countries often say, that they won't ratify a treaty until they think they have got their house in order.  That's not required because, after all, these human rights treaties, states generally adopt an assessment of their level of performance that is perhaps not shared by everyone.  And as was said this morning, human rights treaties are also dynamic, and particularly where you have obligations of progressive implementation,of course you may not be in full compliance yet because you are just starting on or partway along a journey to fully realise the guaranteed rights.  So no, there is no requirement or expectation that you are in compliance immediately, unless the treaty says that particular steps have to be taken of that sort before you ratify.

 
MS EASTMAN:  Coming back to how Australia takes the international law and makes it part of the domestic law, I think the Chair mentioned this morning that there are some constitutional issues there, and whether the Australian Government or the Commonwealth can use its powers under the Constitution to take the treaty and bring it from an international law setting into a domestic setting.  Without going through the complex legal areas of Section 51(xxix) of the Constitution, is it fair to say if the Australian Government has taken on the international legal obligations, the Australian Government has the constitutional power to take that international law and make it part of the domestic law?

PROF BYRNES:  I think that is broadly correct, yes.  There is a test that the statute has to be reasonably adapted to the (unclear) of the legislation and so on, and it's subject to constitutional prohibitions, but yes.  But I guess it is worthwhile footnoting it is not just the Section 51(xxix) external affairs powers, but the Commonwealth can exercise any of its legislative powers to implement a treaty.  But you will often see that in a treaty, in implementing legislation where there is doubt as to whether some of the powers go that far.

MS EASTMAN:  We had seen that for example, one of the first times when the Commonwealth looked to the International Covenant on the Elimination of All Forms of Racial Discrimination to create the Racial Discrimination Act at a federal level but that had some consequences, did it not, for some state laws that might have been inconsistent with the international obligations?  So is that an example of the Commonwealth using its constitutional power to take international law and make it part of the Australian law, perhaps even regardless of what the consequences might be for the States and Territories?

PROF BYRNES:  Yes, it is.  And it's a Commonwealth statute, I guess, like any other, and Section 109 will apply to override any inconsistent state law to the extent of that inconsistency, as was upheld by the High Court.  Another obvious example I can think of was the Sex Discrimination Act, which also relied on the Convention on the Elimination of All Forms of Discrimination to extend its scope beyond what otherwise might have been possible.  In each case I think there are now savings provisions, so the Commonwealth has been quite keen, along with the States, to preserve the operation of State and Territory anti discrimination laws, so that the Commonwealth Act is not seen as covering the field necessarily.  So there is that dimension as well.

MS EASTMAN:  With the Racial Discrimination Act, the Act says something like in Section 7, Australia ratifies the international convention, then the international convention is just set out in the back of the Racial Discrimination Act.  Is that how governments take international law and make them part of the domestic law, just replicate the Convention?

PROF BYRNES:  There are a number of ways, and in preparation for this I listed about seven or eight.  I don't know if you want me to bore you going through them, but there is a variety of ways.  They may just say that the treaty has force as domestic  
law, has force of law; or some provisions of the treaty shall have the force of law; or they may incorporate them within framework legislation like extradition or double tax treaties.  Or, and this is where I think we get into those cases involving human rights, is that the treaty may include some terms or some definitions or provisions which pick up language in the international treaty and they may or may not schedule the full treaty to the Act, or they may simply say one of the objects of this Act is to give effect to the treaty.  But I think in the case of the Racial Discrimination Act, my recollection is that the original, which is still the first paragraph of Section 9, picks up the definition of discrimination on the grounds of race from the Convention and imports it, pretty much directly into Australian law.  So it's a sort of package.  There are other provisions in the Act which are not found in the Racial Discrimination Act, but they are of course substantively giving effect to the general obligations in the Act.  That, I think, is the more common way of doing it.  You will often get a mix of language ported from the treaty into the Act, but generally I think the preference, because of legal, cultural and also drafting practice and problems in interpreting treaties in a domestic context in an individual case, means that it is sometimes easier to paraphrase them to substantively translate them into more usable language.

MS EASTMAN:  I want to ask you some questions about the way in which we interpret treaties and what that means for Australia, but before I get to that, can I ask you about some examples which we see in Australian States and the ACT, where the State Governments have taken the international human rights law and used those international laws to have their charters of rights or Human Rights Act.  I want to ask you about these bills of rights, because we have heard that we don't have a national bill of rights or a charter of rights, but we have seen some examples now in Victoria, Queensland and the ACT.  We are going to hear tomorrow about the ACT.

Can I ask you about that process of taking the international laws and putting it into state or territory legislation.  There's no impediment on a State Government doing that; is that right?

PROF BYRNES:  No, not unless there is some conflicting Commonwealth law, or unless there is a --- well, at treaty level there’s a requirement there be a uniform national law, of course, but that's not a constitutional --- or a limitation on the powers of the State under Australian law.  I think those are examples, and they are obviously very important examples of the way in which Australian law picks up certain human rights treaties.  There are others: in the Fair Work Act there are various InternationalLabour Organization conventions picked up, which are human rights conventions, and so on.  But in the case of the three statutory charters we have, essentially what they have done is they have picked up selected rights, largely from the International Covenant on Civil and Political Rights, with some additional ones, some I think the Chair mentioned this morning, and they have transformed them slightly, they have made them fit better within Australian drafting style, but they are essentially meant to be interpreted with reference to the ICCPR and in some cases the International Covenant on Economic, Social and Cultural Rights. And those sources are made explicit in the statutes, and it is very clear that that is the case and that is the approach that the courts and others have taken in interpreting those three 
statutes.

MS EASTMAN:  Those laws that now operate in Queensland, Victoria and the ACT are often described as a dialogue model.  They seem, is it right, to be based on an approach taken in the United Kingdom with its Human Rights Act?  The UK was getting in a let of trouble with the European Convention on Human Rights and having to appear in a court in Strasbourg.  So the UK said, I think we need to have something in our domestic law that will better protect the rights, and one of the objectives was not to end up in the Strasbourg court.  But the model the UK used was one that looked at the particular system of Government in the UK and the three branches of government: the law makers, so the legislature or the Parliament; the judiciary and the role of courts and tribunals in enforcing rights; and also the executive, which you have spoken about in the Australian context, but perhaps the public service, the administrative decision makers.

That being replicated in Australia, is that a way of looking at taking human rights and matching it with the way Government works?  Is this a new way of looking at taking international law into a domestic setting?

PROF BYRNES:  I think there are other examples, and I think that the notion of dialogue also came out of Canada, which of course has a constitutional bill of rights.  But yes, it is certainly the case that the three models that we have are derived from the UK model, although of course there is a fourth party in that conversation, as you mentioned, the European Court, which we don't have in the context of Australia, notwithstanding the fact that complaints can be taken to various human rights treaty bodies:  as was mentioned this morning, they don't issue binding international legal judgments.  So yes, the goal of those really was I think to reflect concerns about giving too much power to judges and overriding the power of the democratically elected legislature, and that is reflected more broadly in Australia in the reluctance to adopt a constitutional bill of rights.  So this was a way of providing an enhanced protection, ensuring that the decisions of the legislature were to be respected, and if the courts found that they were in conflict with human rights, then the matter could be referred back to the executive government, to the Attorney General, who could take it back to the legislature and explain whether or not the Government was advising the legislature to change the law.

So it was a three way dialogue between the legislature, the courts, the executive and back, but also I think between the legislature and the executive.  Under each of those statutes, there is an obligation to present a statement of compatibility, to explain how a piece of legislation is consistent with the listed rights, and that goes before a Parliamentary scrutiny committee, or a portfolio committee in the case of Queensland, and so there is a back and forth then with the Minister that may lead to changes.  That is also meant to have helped develop a culture of human rights within the public service, so that becomes part of the everyday part of legislative and policy processes.

MS EASTMAN:  If we are talking about an international human rights law like the  
CRPD, which is not fully incorporated into Australian law, practice and policy, we have heard today that the CRPD is a very important tool in advocacy and I wanted to ask you, is there any way that you can use international laws like the CRPD if they are not part of Australian laws?  Is there a prohibition on using international law at all?

PROF BYRNES:  No.  Before I answer that question, it's probably important just to stress one element --- or two elements of the Human Rights Act.  One is that each of those Acts requires the public authority, when they are making a decision, firstly to give proper consideration to human rights, so it is a mandatory consideration, they must take it into account and give it weight.  And then secondly they must comply with human rights in any decision or action that they take.  Then the second very important element of the significant change is that there is an obligation on courts and indeed anyone interpreting statutes, but it is primarily of importance for courts, to construe existing --- construe statutes generally where it is possible to do so without distorting the wording and the purpose of the statute, to interpret it consistently with human rights.

So they are significant changes, and they are important because they represent changes from the situation of how you can use unincorporated treaties.  So there are a number of ways in which you can use unincorporated treaties.  Obviously, once Australia has ratified a treaty, I think there is a political expectation that the Government will do something about it.  So as an advocacy tool, we have certainly heard about that today, it provides a framework, it provides a language, it provides a legitimacy for advocacy work, both generally but also in specific cases.  I think we have seen some of that in some of the work that has been done in Victoria.

The other important aspect is it does provide a formal framework for policy development and public inquiries and a number of those have been mentioned.  The Australian Law Reform Commission Inquiry Into Quality, Capacity And Disability in Commonwealth law from 2014 used the CRPD as a framework.  The New South Wales Law Reform Commission in its 2017 review of the Guardianship Act used the CRPD as the frameworks.  And I think it has been used in Victoria and other places, and other treaties are also used in that way.

In the context of courts and that more formal process of litigation, unincorporated treaties can be still drawn on in different ways.  Even if a treaty is not incorporated, if it is clear the statute is intended to give effect to some or all of it and the statute --- the treaty may be drawn on to assist in the interpretation of the statute, although if the words of the statute are clear and not consistent with the treaty, then they obviously prevail.  Ditto where particular words are taken from a statute, the same thing applies.

Thirdly, I guess, there's a more general presumption of consistent interpretation, so Parliament is assumed not have to intended to legislate contrary to its international obligations.  There is a little bit of uncertainty as to quite when that applies, whether you need an ambiguity, what sort of ambiguity.  I think it's a well accepted principle  
of statutory interpretation.  There are two others.  One is a question of relevant consideration.  It is permissible for administrative decision makers to take into account relevant treaties.  It may be unless the statute says they must that you cannot force them to, but they are certainly permitted to.  And there is this rather contested concept of legitimate expectation, which I won't say anything further about, but the notion that it is expected that decision makers will comply with it.  But doubt has been cast on the status of that under Australian law.

The final area is the conventions.  Unincorporated conventions can be used as a guide or to be drawn on to develop common law principles.  There is at least one case in Australia in which that has been done with the CRPD involving undue influence in a case in the Victorian Supreme Court.

So they’re, I think, the major ways in which unincorporated treaties can be used.

MS EASTMAN:  At the international law level, once a convention or treaty is settled, there are particular rules that apply to interpreting the meaning of, in this case, rights in the international convention.  I think we tend to go to another international law called the Vienna Convention on the Law of Treaties, and that gives us a guide to interpreting the international law.  But how, for example, would Australian politicians, judges and decision makers using any of these international laws, how do they go about interpreting the meaning of the treaties?  And particular rights, for example.

PROF BYRNES:  I think the answer is, in relation to all the branches of government is that very similar approaches are adopted.  As you said, the Vienna Convention, Article 31 in particular, applies both when an Australian court is interpreting an international treaty, even if it is not mentioned in the specific statute but it is relevant for that purpose,  and also where there is specific language from that treaty. So that involves looking at the ordinary meaning of the text, but in the context of the treaty and in light of its object and purpose.  So it is a broad approach to it.

And when doing that, you can also have regard to the drafting history of the treaty.  There are certain formal conditions around that, there has to be ambiguity, but in practice I think most international courts look at it as part of a scanning of the scene before they delve in.  But the Vienna Convention on the Law of Treaties is the starting point, and that allows you obviously to focus on the treaty, also on how states have interpreted the treaty themselves -  what's called state practice -- and whether they have given slightly different meanings to the treaty.  You can also take into account other international obligations or other rules of international law that might apply to that.

MS EASTMAN:  That sounds like pretty hard work.  If I'm a busy politician and there's a law that we have got to work out the meaning of international law, is there an expectation that our politicians, judges and decision makers will be able to work their way through the Vienna Convention on the Law of Treaties, to look at general comments, to look at states party reports?  It sounds really hard.  So how ---
 

CHAIR:  Can we distinguish between politicians and judges, please?

MS EASTMAN:  No, I'm putting you all together today!

It sounds quite hard.  It sounds like you have to know a lot about international law and you want to understand how it works in an Australian context.  How do you go about doing it?

PROF BYRNES:  It can be complex.  For reasons which the Chair referred to this morning, particularly where you have got constructive ambiguity in order to get text, it can be hard.  But these sorts of processes are part of the everyday work of Attorney General’s and the Department of Foreign Affairs and Trade.  And yes, new issues come up but often once you have done the work broadly once, it's not such a huge undertaking.  So within government there is an enormous expertise.

Within the realm of parliaments, there is also considerable expertise, they are obviously advised by the relevant minister and department.  But the body I'm most familiar with is the Parliamentary Joint Committee on Human Rights, which of course is interpreting the seven relevant human rights treaties all the time, and gets on top of it and it manages to deal with all those sources.  But, yes, it is at times a complex process.  Sometimes it's not.  But on the other hand you --- having signed on to an international treaty, you want to make sure that you do in fact implement it.  I think courts, well I think you only have to look at the practice of courts and see that in a range of cases in Australian courts, under the Refugee Convention, under the Fair Work Act, under a series of cases that, with the assistance of counsel, then obviously they are able to get on top of these issues on the whole fairly well.  Other bodies like the Human Rights Commission are available and do work of this sort in the human rights area.

MS EASTMAN:  We have heard some Australian judges in their decisions saying international human rights are very aspirational in nature, and this makes them difficult types of rights to bring into an Australian legal setting where we are much more comfortable with clear parameters and clear obligations and definitions.  How do courts navigate those issues of rights that look aspirational in nature but someone seeking to give them effect in the Australian legal context?

PROF BYRNES:  Of course they are.  They are aspirational, they are goals and values we want to achieve, but they are also embodied in positive instruments of law.  I think in terms of that, often there is perhaps a misunderstanding or perhaps not as great a familiarity on the part of everyone about what really goes on in terms of interpreting these.  Thirty or 40 years ago there was not an enormous amount of jurisprudence and case law of the sort we have in other areas in relation to international human rights.  Now there is, there's too much.

I think if you look at the experience of Australian courts, really at all levels, the best examples show that, depending on the nature of the right, they can do this work.  The  
question of whether there are particular sorts of rights, in particular economic and social rights and progressive implementation obligations and so on, whether that makes it more difficult, I think there are two answers to that.  One is that I think the progressive implementation argument has probably --- is probably living to some extent in the past, at a time where there had been much less judicial application of economic, social and cultural rights.  There are still elements around progressive realisation which cause difficulties for judicial application but I think many of those problems have turned out to be not quite as worrisome as appeared.

But in order to do that, I think you often then need to translate something like the Economic Covenant or the CRPD with its general provisions about states have to do things into slightly different language, in the same way that the human rights charters in Australia translated the ICCPR into local language.

When it comes, I think, to dealing with big questions and questions of reasonableness and proportionality and so on, I think when some in the Judiciary make those comments, it always strikes me that perhaps they are putting aside the sorts of work that they themselves and others in courts are often involved in.  I mean, the High Court, for example, in its work on implied freedom of political communication, in deciding whether or not state borders should be opened, a whole range of issues that courts decide on which are broad policy issues or may have policy implications, I think have their analogues in the international law area. And so I think one needs to approach it perhaps with a little bit more nuance than saying these obligations are simply not litigatable in domestic courts because they don't produce sufficient judicially manageable standards.

MS EASTMAN:  Can I ask you just on this idea of progressive realisation, because the Australian Government in its background paper has said, paragraph 4:

Implicit in the concept of progressive realisation is that states parties are obliged to achieve continuous improvement of conditions over time without backward movement.

I don't think that is controversial, is it?

PROF BYRNES:  No.

MS EASTMAN:  Then it says:

Any retrogressive measures require careful     consideration and the full justification with reference to the totality of rights provided in the relevant convention and in the context of the full use of the maximum available resources.

Can I just ask whether you have got a view about the approach to interpreting progressive realisation, that a retrogressive --- if the starting point is there is no backwards movement, how then can retrogressive measures be justified on the basis  
of consideration of the maximum available resources?  And perhaps related to that point at paragraph 10, the Commonwealth says that there is a reasonable margin of discretion --- I don't know if you have heard that expression before --- in choosing methods to implement progressively realisable rights, taking into account resource considerations.

I have just touched on those because it comes back to the question that I asked about trying to understand the concept of rights, but this is an approach that the Australian Government seems to say there is a lot of discretion or a margin of discretion in how progressive realisation and those types of rights can be implemented.

CHAIR:  I think there might be ---

MS EASTMAN:  A lot of questions in that one.

CHAIR: ---  a lot of questions in there, so why don't we start with the first one about retrogressive and then move on to the next four or five.

PROF BYRNES:  Thank you, Chair, and Ms Eastman.

Yes, the notion of non retrogression comes out of the practice of the Committee on Economic, Social and Cultural Rights.  They have basically --- it's not an absolute bar, as they say, but it has to be justified by a very careful consideration, and the way in which they have suggested it be done is to look at various criteria, what were the alternatives, what other things are done, does it impact particularly on disadvantaged groups, and so on.  They are the sorts of things actually which are being picked up by the Parliamentary Joint Committee on Human Rights in looking at non retrogression as well.  It is really a form of --- it's a form of limitation of rights, I suppose.

It can be quite difficult, I think, to assess because when you are getting into those sorts of issues, it is generally a plea by governments that the economy is bad or there is a shortage of things or there are other priorities, so it is essentially a resources issue, but it is quite difficult to line the government up and say, "Okay, here are all your items of expenditure, here are all the rights priorities, how have you allocated resources to those priorities?"  There might be other human rights priorities as well.  So that is one of the systemic issues, and that's been pointed to certainly by the Parliamentary Joint Committee on Human Rights, which has sought to ask the government, when it appropriates money to various portfolio budget statements, to provide a human rights impact analysis of that, particularly where there are cuts to specific areas.  So that's probably all you need to know on retrogression, but it is certainly part of international law.  But it is not an easy out, saying, "We can't find the resources"; the State has to demonstrate that there are not resources and that there are other alternatives.

I will pause there.

CHAIR:  The next question I think related to margin of appreciation or whatever the  
---

MS EASTMAN:  The margin of discretion.

CHAIR:  Margin of discretion.

PROF BYRNES:  Yes.  In terms of margin of appreciation, I think it is probably wise to avoid that phrase in this context, mainly because it is a creature of Strasbourg jurisprudence, European Court of Human Rights, and it has a body of jurisprudence that varies according to area, and it is about the amount of deference in particular areas that an international court will pay to national institutions, legislatures, courts and so on.

But I think it is well accepted that under any treaty, really, unless the treaty specifies the specific outcome or the specific means by which an outcome is to be achieved, so for example, must adopt legislation, must adopt a national law, then the state does have a certain amount of discretion as long as they achieve the substantive result.  That, I think, also applies in relation to obligations which are progressively realisable, subject of course to the fact that it's not an open ended "We can do what we want when we want" obligation.  It's very clear that there are specific procedural aspects of progressive realisation involving the drawing up of a baseline, the identification of --- or the drawing up of a plan with benchmarks, monitoring procedures and a timeline and progress.  So it's not an open ended, "We can do what we want, when we want"; there has to be progress forward that is genuine.

The other thing that it is important to mention here, both under general human rights law and article 4(2) of the Convention -- which the Chair read out this morning - dealing with progressive realisation. There is an important rider, and that is that both generally in human rights law and article 4(2) recognise that economic, social and cultural rights may have some immediately applicable obligations, so obligations of immediate effect, and I think the understanding of what they are has evolved over the years.  They could include non discrimination in various contexts, they may include things like not forcibly evicting someone from a house, even if everyone in the population doesn't have housing under the broader notion.  I think everyone recognises that and that was consciously spelt out in the CRPD article 4(2) because it was felt that one didn't want governments to be able to say, "Oh, it's all progressively realisable unless it's a clear civil and political rights obligation."  That is not the case.  It's a tight approach to assessing that and there are a number of immediate obligations.

MS EASTMAN:  Against that background, can I ask you a little about the work of the Parliamentary Joint Committee on Human Rights and the work done by our Human Rights (Parliamentary Scrutiny) Act 2011.  That followed a national consultation on a bill of rights for Australia, conducted by Frank Brennan and others, and the end result is we don't have a national bill of rights.  But one of the recommendations was to think about the impact of law and that before a law or a statute is passed, there is a role for parliament to consider what the impact might be  
on human rights.  You have had a role as an adviser to the Australian committee and I want to ask you, and the Commissioners have got your chapter, on how has the Parliamentary Joint Committee on Human Rights approached its lawmaking function or its scrutiny of law making function with respect to the CRPD?  Has it featured at all?

PROF BYRNES:  Yes.  As you said, I had the honour to be its external legal adviser from 2012 to 2014 and have followed it reasonably closely since then.  Yes, the committee has jurisdiction to assess primary legislation and regulations, sorry, bills and sometimes primary legislation and also delegated legislation, compatibility with the seven human rights treaties to which Australia is party, the seven principal ones, including the CRPD.  Yes, it has on a number of occasions looked at the CRPD, and perhaps I can mention two relatively recent ones and perhaps one other.
In one of its recent reports, Report No. 2 of 2020, it looked at the Disability Discrimination Regulations of 2019.  They were the regulations designed to update and/or extend exemptions under the Disability Discrimination Act of 1992, the Commonwealth Act, in relation to specific state laws.  And the Committee adopted the approach that it normally does with all the treaties, that it adopted the Vienna Convention approach, it looked at the text, general comments, concluding observations where relevant, and case law.  And it adopted a pretty strong analysis of a number of the exemptions.Let me give you an example.  One was an exemption in relation to the power of a South Australian Minister for Education, I think, to nominate and direct a student to attend a special school.  The Committee pointed out that that raises very significant concerns under the CRPD in terms of inclusive education, citing the General comments but also the other relevant sources.

However, that was it.  I don't believe --- though there was a protective notice of disallowance while they looked at it, may have been put on it --, the regulation I think is still there.  So it didn't actually get rid of the regulation.  What it did do, I suppose, was apply the analytical blowtorch to it and draw attention to it, so perhaps there will be subsequent action on it.

Another one in which there has been a bit more impact is in relation to the various chemical and physical restraints applied in aged care facilities, which I'm sure you know has been a topic for some time.  The Parliamentary Joint Committee on Human Rights started --- undertook an inquiry, and this was an inquiry which took public submissions and heard some hearings, in relation to what were called the quality of care principles regulating restraints.  I think the Minister was Mr Wyatt at that stage.  They looked at that and they came up with some very strong recommendations about that.  There have been a couple of iterations of those regulations now, in response to that and other criticisms and I think in one of its very recent reports in 2021, it has also noted improvements but also noted a number of concerns.

So I think they are two examples.  They also looked at the 65 age limit for admission to the NDIS and raised issues as to whether that was discriminatory against particular subgroups of people with disabilities.

 
Is it an effective and useful instrument?  Well, the commentators I think have generally been a bit disappointed --- perhaps their expectations were too high --- but I think it is probably fair to say that there have been relatively few immediate changes to bills in the particular process because of the part of the Committee's criticism of them.  Whether that flows through to the public service and to subsequent variations, whether it influences the thinking of parliamentarians in future is less clear.  That is certainly one of the goals.

Part of the problem is, I think, that the scrutiny comes at a stage which is very late in the legislative process.  There is already an enormous amount of political and other capital invested in it, there is often very little time to actually examine and deal with these issues, so it is quite hard.  That said, I think there have been some amendments, and particularly where there are calls coming from other sectors, the Parliamentary Joint Committee voice has perhaps helped to amplify the other voices.

It has had more success, I think, with delegated legislation and it has brought about a number of changes there in different areas, and that is partly because it has the power to move disallowance motions and the Senate in those cases or the House could disallow, so there actually is a Sword of Damocles hanging over the regulation, if the flaws are significant enough.

MS EASTMAN:  If the Joint Committee produces a report and it gives an assessment of a proposed bill, for example interfering with human rights, does that operate in any way to prevent that bill being passed in a manner that might still have an adverse impact on human rights?

PROF BYRNES:  No, it doesn't.  And it's one of the ironies or one of the tensions, perhaps, that you have parliamentarians wearing their hats as parliamentarians performing a scrutiny role, adopting a view that there are problems or the limitation has not been justified, yet going out onto the floor of the Parliament and voting the bill through.  I think this is probably an irresoluble tension, but I think the advantage of the Parliamentary Committee has been the strength of the analysis that has been brought, and that the consistent analytical framework analysing limitations on rights has been put in.  Parliament as a whole may not have chosen to follow the guidance that has been given, but at least it has been given and can be used as advocacy in other contexts, and perhaps even in court cases and before UN Human Rights Treaty bodies as well, I would imagine.

MS EASTMAN:  Commissioners, I'm conscious of the time, we have run over a little bit, so I might have to leave asking Professor Byrnes about models for implementing the CRPD into domestic law from other jurisdictions for another occasion.  I will check if any of the Commissioners have got any questions.

QUESTIONS BY THE COMMISSION

 
COMMISSIONER McEWIN:  Thank you, Chair, one question.

Thank you, Professor Byrnes, for your evidence.  You mentioned earlier that sometimes the history and drivers of a particular treaty or convention can lead to ambiguity around interpretation and implementation of that treaty.  But taking into account that we have heard from witnesses and in our research reports that a key driver of the CRPD was because of the exclusion and segregation of disabled people historically, so from your point of view and from a treaty interpretation point of view, what do you think are the obligations on Australia to implement inclusive systems in line with the CRPD?

PROF BYRNES:  I understand that an analysis I prepared for the Commission is going to be tendered.  The bottom line of that analysis is although it is a contested issue, my own view is the better view of the Convention's obligation, in particular Article 24, is that Australia needs to move progressively over some time to have transformed system with inclusive education, which does not, as a matter of principle, include special schools as a long term separate form of education.  And I think that is also a position taken by the CRPD Committee.

COMMISSIONER McEWIN:  Thank you, Professor Byrnes.

Thank you, Chair.

CHAIR:  Commissioner Ryan?

COMMISSIONER RYAN:  Professor Byrnes, there are lots of things I could ask you about, but I noticed, I must say, people have been trying to convince us to codify or to make the CRPD a code of some sort.  But I have noticed that it includes an awful lot of expressions like "effective" and "appropriate" and "appropriate means" and so on.  I'm wondering just how useful will the CRPD be, particularly when many of the things that I must say have been brought this Royal Commission today have been things --- people have very basic requirements like housing, they want transport access, they are all the things that are usually brought about by means of a parliamentary appropriation.  Just how useful will terms like "effective" and "appropriate" or "appropriate means" be in getting those very basic human rights delivered, given that it really still in the end is down to a parliamentary process which allocates money?

PROF BYRNES:  I think that's the critical question.  I think there are a couple of answers to that and I think there are models around which would allow the transformation.  Let me give you one that I was going to talk about, from a common law jurisdiction, because there are lots of examples from civil law jurisdictions of general bills of rights, protection of human rights for persons with disabilities.  But there is a recent Act adopted in Fiji, which engages with exactly this problem.  It is a protection of the Rights of Persons With Disabilities Act, based very closely on the CRPD.  What it does is it tries to respond to the problem that you have identified, which is to say, dealing with --- "The parties shall take appropriate measures," what  
does a court do with that or what does a policy maker do?  They might take appropriate measures but courts feel a bit uneasy in Australia with those provisions.  Other courts in other jurisdictions don't necessarily have the same thing, but we are working in Australia.

What they have done is they have transformed it, so rather than saying, "State parties shall take appropriate measures to do X to ensure that someone has effective access to justice," they turn it into a rights formulation, so it is much more like our discrimination statutes or our other bills of rights statutes, and it becomes workable for courts, for public servants and for others.

Even in those cases where there might still be a little bit of doubt because there are general obligations or there might be a little bit of discretion, I think what has been shown by the work done by the Human Rights Law Centre in Victoria looking at how the charter has been being translated into everyday impacts made a difference to people; a brothel, for example, actually being able to get a protective screen door on their apartment because there is a human rights argument.  In the year ended 2012 or 2014, there were about 100 examples of very practical ways in which having those rights, even if you are not in court, even if you are not doing the big picture stuff, can change.  And the Victorian Ombudsman did a report this year showing exactly the same in the context of the pandemic.

I think the statement of rights itself is important.  You can translate it into a form that becomes workable, and it really does have an impact.  I agree, some of the rights may need parliamentary appropriations.  It may be that the parliamentary appropriations need to be made in a better targeted way.  In many cases, of course, you won't need a parliamentary appropriation; it may be just a question of doing it right.

Questions of effective access?  Well, we talk about in the common law someone having effective assistance of counsel, effect access to transport.  And we can give it context too in terms of mobility access and so on.  So it's not without its problems but I think there are examples.  Scotland has tried to do it in relation to the Convention on the Rights of the Child by dropping the CRC into a human rights act style thing.  But I think the Fiji example goes a bit further and there are other examples of that sort but that is one which is a recent one and directly related to the CRPD.

COMMISSIONER RYAN:  Thank you.

CHAIR:  Professor Byrnes, could you tell us please what the status in international law is of the work of the UN Committee, specifically the Committee on the CRPD?

PROF BYRNES:  As a general matter, I think the situation is fairly similar in relation to all the UN human rights treaty bodies, as a matter of doctrine.  Obviously their output, even the formal decisional output under the optional protocol when they adopt decisions or views, nor when they are purporting to set out, or they are setting  
out interpretations of the provisions in general comments, they are formally not binding interpretations as such.  I think that is very clearly established.  But that is not the end of the matter.  They are more than just my scribblings or the views of some academic scholar, because I think they are a body of independent experts which are entrusted with a particular function by the states parties who own the treaty in many ways.  Therefore I think it has become accepted by states, including Australia, that anything that the committee says in concluding observations, decisions or whatever, is worthy of careful consideration and being given due weight.  It doesn't mean you have to agree with it all the time, and obviously Australia and other states don't.  Equally, though, it is frequent and you can see this in the Australian Government's submissions to the Commission and to other places, they frequently cite general comments of various committees, and decisions as relevant and persuasive.

So I think it goes down to what's the committee, what's the strength of the reasoning, how does it line up with the accepted rules of interpretation?  I think we have to accept that in some cases they may be pushing the envelope.  Of course, we have to remember, that's part of their role, part of the principles of interpretation of human rights treaties that they should be liberally, dynamically and generously interpreted in favour of the beneficiaries.  But yes, it's a tricky area, but I think I have stated it as best as I can.

CHAIR:  Thank you very much.

Do counsel wish to ask questions?  If any counsel wishes to ask Professor Byrnes any questions, could they please so indicate.  Apparently not.

In that case, Ms Eastman, does that conclude Professor Byrnes' evidence?

MS EASTMAN:  It does.  As I said, there were a few other topics I wanted to explore but we may persuade Professor Byrnes to come back at another time to continue that discussion.

I was also going to play a short video but I won't do that, given the time.  I will look at the tender of Professor Byrnes' material overnight and let you know in the morning.  I hope that concludes today's proceedings.

Again, can I thank Professor Byrnes for his preparation, which was extremely thorough, and the assistance provided to the Royal Commission.

CHAIR:  Yes.

Professor Byrnes, I join thanking you.  Your meticulous preparation is only to be expected of a professor from the Faculty of Law of the University of NSW so it does not come as a surprise, but thank you very much.

PROF BYRNES:  Thank you, Chair.  Thank you, Commissioners.

THE WITNESS WITHDREW

MS EASTMAN:  Commissioner, we will adjourn until 9.30 tomorrow.

CHAIR:  We will adjourn until 9.30 tomorrow.

HEARING ADJOURNED AT 4.19 PM UNTIL TUESDAY, 9 NOVEMBER 2021 AT 9.30 AM