Chair’s Text
of the
Comprehensive and Integral International Convention 
on the Rights and Dignity of Persons with Disabilities

Report on National Consultations

 November 2005

Australian Federation of Disability Organisations
People with Disability Australia Incorporated
National Association of Community Legal Centres

Additional copies and alternative formats of this report are available from:

People with Disability Australia Incorporated
Postal Address:	PO Box 666
			Strawberry Hills
NSW 2012
Street Address:	Ground Floor, 52 Pitt Street
			Redfern
			NSW 2016
Phone:		02 9370 3100
Toll Free:		1800 422 015
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TTY:			02 9318 2138
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 Table of Contents

1.	Introduction
1.1 	Overview
1.2	Methodology
1.3 	Acknowledgements
2.	Comments on Preamble and Specific Articles
2.1 	Preamble

PART 1

2.2 	Article 1: Purpose
2.3 	Article 2: Definitions
2.4 	Article 3: General Principles
2.5  	Article 4: General Obligations
2.6 	Article 5: Equality and Non-Discrimination
2.7 	Article 6: Women with Disabilities
2.8 	Article 7: Children with Disabilities
2.9 	Article 8: Raising Awareness Regarding Disability
2.10 	Article 9: Accessibility

PART 2

2.11 	Article 10: Right to Life
2.12 	Article 11: Situations of Risk
2.13 	Article 12: Equal Recognition as a Person Before the Law
2.14 	Article 13: Access to Justice
2.15 	Article 14: Liberty and Security of the Person
2.16 	Article 15: Freedom From Torture or Cruel, Inhuman or Degrading Treatment or Punishment
2.17 	Article 16: Freedom From Exploitation, Violence and Abuse
2.18 	Article 17: Protecting the Integrity of the Person
2.19 	Article 18: Liberty of Movement
2.20	Article 19: Living Independently and Being Included in the Community
2.21 	Article 20: Personal Mobility
2.22	Article 21: Freedom of Expression and Opinion and Access to Information
2.23	Article 22: Respect for Privacy
2.24 	Article 23: Respect for the Home and the Family
2.25	Article 24: Education
2.26 	Article 25: Health
2.27	Article 26: Habilitation and Rehabilitation
2.28 	Article 27: Work and Employment
2.29	Article 28: Adequate Standard of Living and Social Protection
2.30 	Article 29: Participation in Political and Public Life
2.31	Article 30: Participation in Cultural Life, Recreation, Leisure and Sport

PART 3

2.32	Article 31: Statistics and Data Collection
2.33	Article 32: International Cooperation
2.34	Article 33: National Implementation and Monitoring
2.35	Article 34: International Monitoring
3. 	Additional issues
3.1 	Treatment of Specific Population Groups

1.	Introduction

1.1 	Overview

This is a report on the national consultation focused on people with disability and organisations of people with disability in relation to the Chair’s Text of the proposed Comprehensive and Integral International Convention on the Rights and Dignity of Persons with Disabilities. The consultation was made possible by a grant from the Australian Attorney General’s Department to the Australian Federation of Disability Organisations (AFDO).  The consultation and report were commissioned in order to assist the Australian Government to prepare a briefing to its delegation to attend the seventh session of the United Nations Ad Hoc Committee responsible for the development of the text proposal for the convention.  

The project was undertaken in partnership with People with Disability Australia and the National Association of Community Legal Centres.  People with Disability Australia acted as the project manager of the national consultation.

The consultation was held in November 2005 between the Sixth and Seventh Sessions of the United Nations Ad Hoc Committee.
In his covering letter to delegates accompanying the draft text, the Chair of the Ad Hoc Committee requested delegates to attend the next Ad Hoc Committee session (commencing on 16 January 2006) with clear views on the proposed text.  
AFDO was requested by the Australian Government to conduct the consultation and subsequently provide this report with respect the Chair’s request.  Accordingly, this report identifies what text in the Chair’s draft is acceptable to consultation participants, and what would be unacceptable and why.  In addition, where changes to the text are recommended, this report provides an explanation of critical issues and makes proposals for how the Australian delegation could negotiate the proposed text to make it acceptable.
The report documents the findings of the national consultation on the Chair’s Text.  It does not represent the views of any one agency that facilitated the consultation.
The report also contains information on the consultation method and outcomes, including a description of how and with whom the consultation was conducted.  

1.2	Methodology

Objectives

This consultation strategy had the following objectives to:

(a)	build on the views expressed in the 2004 national consultation on the draft convention on the human rights of people with disability;

(b)	provide information to the disability rights movement regarding the developments and debates at the Ad Hoc Committee in the fifth and sixth sessions;

(c)	consult he Australian disability rights movement about the current Chair’s text proposal for the convention (October 2005); 

(d)	consolidate the views of the Australian disability rights movement in relation to the convention into a single document.

Multidimensional Consultation Strategy

Due to the time and financial and content constraints on the project on the one hand, and the desire to involve as many organisations and individuals in the consultation as possible on the other, a multidimensional consultation strategy was developed.  This strategy had the following components:

•	Background information and response form

A detailed background information paper was prepared and disseminated widely.  The purpose of the paper was to provide information on some of the key articles in the Chair’s Text in order to assist participants to work through the issues in order to arrive at clear recommendations on the text.  

The background paper provided an overview of the Chair’s Text on selected articles.  Where the article has been debated in the 2004 Australian national consultation, key points from the findings were included.  Discussion on the difference between the two and some of the more recent debates was also provided.  Some discussion starters were provided to assist in discussions.  These articles were selected because they have been identified at the Ad Hoc Committee or the Chair as requiring further debate and because they are new articles that were not included in earlier drafts of the convention.  

In addition, a quick response form was developed and disseminated.  The response form allowed participants to indicate which articles of the Chair’s Text were supported, which were not, and why not.  This instrument provided a very useful tool for individual participants to provide feedback.

•	National workshops with major representative disability organisations

Intensive one-day workshops on the Chair’s Text proposal for the convention were held with major representative organisations.  Two workshops were conducted – one in Melbourne and one in Sydney.  Representatives of the members of the Australian Federation of Disability Organisations, other representative organisations and major State and Territory cross-disability representative and advocacy organisations participated in the workshops.

•	Focus group for people with intellectual disability

A specific focus group was held with people with intellectual disability in order to elicit detailed responses to the Chair’s Text.  Consultation material in plain English was developed for this consultation.  

•	Telephone consultations

Detailed teleconference consultations were held with representatives of Aboriginal disability networks 

•	On-line information and consultation

An E-bulletin called Countdown to Convention was developed and issued.  The E-bulletin provided detailed information contained in the background paper and outlined the various ways in which participants could be involved with the consultation process.  

•	On-line discussion group

An on-line E-mail discussion group was established to allow people with a keen interest in the development of the convention to exchange views on-line.

•	Website

People with Disability Australia also devoted a large section of its website to this project.  The website provided access to the background paper, E-bulletin, Chair’s Text and the Chair’s covering letter as well as a range of other background materials for those participants who wanted detailed information about the development of the convention.  All key documents before the Ad Hoc Committee, and the records of Ad Hoc Committee proceedings to date were also posted on this site, or linked from this site, in downloadable form.  In addition, interventions made by non-government organisations including People with Disability Australia, AFDO and the NACLC at various Ad Hoc Committee sessions were included on this site.  Finally, the report of the 2004 Australian consultation on the (Expert Working Group) draft of the convention was also made available to participants through this site.  

•	National telephone and TTY call-in

The consultation strategy offered both individuals and organisations the opportunity to call in to speak to project staff directly about their issues and concerns.  National free-call telephone and telephone typewriter lines were made available for this purpose.  Two specific days for the call-in were advertised.  In addition, participants were provided with the option of making an appointment with staff for a more convenient time for staff to call back to discuss elicit responses.

Accessibility of information and consultation methods

The accessibility of information is a key issue affecting the participation of people with disability in any consultation process.  To address this need project information was made available in a number of different formats including Braille, rich-text format, and plain English.  

The project also ensured that other participation supports were provided to people with disability where required.  According to need, we provided Auslan interpreting, personal care assistance, secretarial support, hearing loops, and support persons for people with intellectual disability.

Building on previous work

The project steering committee recognised that many of the organisations participating in this project had already undertaken substantial work in consulting with their memberships and developing submissions to 2004 Australian national consultation. It was also recognised that substantial work had been undertaken by various organisations 2003 and 2004.  In order not to ‘rei-invent the wheel’ the 2005 consultation sought to build on this work.

1.3 	Acknowledgements

These consultations were commissioned and financed by the Australian Government through the Attorney General, the Honourable Philip Ruddock, MP, and the Australian Department of the Attorney General. The Australian Government’s support for this project is acknowledged with great appreciation.  In this respect we acknowledge with particular appreciation the assistance provided to the project by Ms Kerri-Ann Smith of the Australian Attorney-General’s Department.

These consultations would not have been possible without the support and cooperation of Australian disability organisations. The short time frame for participation and response amidst significant local advocacy issues confronting the sector made it very difficult for organisations.  That so many did respond is a testimony to the level of engagement that people with disability have and want to maintain with their convention.  

People with Disability Australia would like to acknowledge the support and guidance provided by the National Consultation Project Steering Committee, which met by teleconference during the course of the project:

•	Maurice Corcoran, President
Australian Federation of Disability Organisations

•	Maryanne Diamond, Chief Executive Officer
Australian Federation of Disability Organisations

•	Frank Hall-Bentick, Board Member
Australian Federation of Disability Organisations

•	Rosemary Kayess 
Australian Federation of Disability Organisations' nominee in the Australian Government delegation to the United Nations Ad Hoc Committee

•	Darren Fittler, Representative
National Association of Community Legal Centres

•	Heidi Forrest, President
People with Disability Australia

•	Alanna Clohesy, Deputy Director, Advocacy
People with Disability Australia (Project Manager)

People with Disability Australia also acknowledges the outstanding work of its staff who implemented this project – Matthew Bowden, Allyson Campbell, Samantha French, and Dean Price.  We also offer our sincere thanks to Brenda Lacey of AFDO for her assistance in the preparation of the Melbourne workshop.

2.	Comments on Preamble and Specific Articles

2.1 	Preamble

Chair’s text

The States Parties to this Convention,
(a)	Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world,
(b)	Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind,
(c)	Reaffirming the universality, indivisibility and interdependence of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination,
(d)	Reaffirming also the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
(e)	Recognizing the importance of the principles and policy guidelines contained in the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities,
(f)	Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent dignity of the human person,
(g)	Recognizing further the diversity of persons with disabilities,
(h)	Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations to their human rights in all parts of the world,
(i)	Recognising the importance of international cooperation for improving the living conditions of persons with disabilities in every country, particularly in developing countries,
(j)	Emphasizing the existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in significant advances in the human, social and economic development of their societies and the eradication of poverty,
(k)	Recognizing the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices,
(l)	Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, especially those directly concerning them,
(m)	Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, 
(n)	Emphasizing the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities,
(o)	Recognising that a disproportionately large number of persons with disabilities live in conditions of poverty, and mindful of the need to alleviate the negative impact of poverty on persons with disabilities,
(p)	Concerned that situations of armed conflict have especially devastating consequences for the human rights of persons with disabilities,
(q)	Recognizing the importance of accessibility to the physical, social and economic environment and to information and communication, including information and communication technologies, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms,
(r)	Convinced that a convention dealing specifically with the human rights of persons with disabilities will make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries,
Have agreed as follows:

Participants supported the Preamble contained in the Chair’s Text.  

However, many participants re-iterated support expressed in the 2004 Australian consultation on the Working Group text that the Preamble, for interpretative purposes, should clearly signal a change in understanding of disability away from one of “individual pathology” to recognition of the way in which social structures and processes disable people with impairments, and thereby deny their human rights.  

This was particularly discussed in the context of the support for the inclusion of a social model of disability in Article 2: Definitions (please refer to section 2.3 below).  It is therefore suggested the Preamble also include the following additional paragraph:

Recommended text

(s) 	Recognising a profound shift away from an understanding of disability as an individual pathology towards one that recognises the disabling impact of inaccessible social structures and processes on persons with impairment.

In addition, there was strong re-iterated support expressed in the 2004 Australian consultation for the inclusion of specific reference to population groups in the Preamble.  Please refer to Section 3 of this report for further discussion on this issue.

PART 1

2.2 	Article 1: Purpose

Chair’s text

The purpose of this Convention is to promote, protect, and fulfil the full and equal enjoyment of all human rights and fundamental freedoms of persons with disabilities.

Participants generally supported the Chair’s Text article 1: Purpose.  However, participants sought to re-affirm the strong support for the incorporation of the additional concept of ‘dignity’ into the article.  This would also make it consistent with both the title and paragraph (f) of the Preamble of the convention.  The article might therefore read:

	Recommended text

The purpose of this Convention is to promote, protect and fulfil the dignity and the full and equal enjoyment of all human rights and fundamental freedoms by persons with disability.

2.3 	Article 2: Definitions	

The Chair’s Text contains several definitions of concepts.  Many of these definitions were supported by participants and these are recorded below.  However, some definitions received particular attention from participants and recommendations for new or altered text are identified. 

Communication 

Chair’s Text 

For the purposes of the present Convention: 
“Communication” includes oral-aural communication, communication using sign languages, and Braille, and tactile communication, large print, audio, accessible multimedia, human reader and other augmentative or alternative modes of communication, including accessible information and communication technology.

Participants in general supported this paragraph of the article.

Disability
Chair’s Text

[Disability] – the Chair left vacant text on a definition of disability.

The Chair indicated that views were divided (at the Ad Hoc Committee) as to whether to include a definition of disability.  Some delegates have indicated that there is no need to include a definition so as not to unintentionally exclude any person.

However, participants overwhelmingly supported the inclusion of a definition of disability in this article and argued that it was vital to provide a clear, broad and inclusive definition for this concept for a variety of reasons.  Many of these were an extended articulation of issues identified in the 2004 Australian consultation.

Participants indicated that failure to include definition to the groups of people the convention is intended to provide protection for may result in some States denying the protection of the convention to these groups.  

The convention was described as a ‘visionary’ document and therefore needed to ensure broad coverage in order to stimulate the fundamental changes required in some societies to protect the human rights of some groups, not included by traditional notions of disability. 

In addition, participants argued that the approach of the Chair’s Text, in not defining disability, may lead to unnecessary delay, distraction and diversion from the issues of substance the Convention is to address and that it is important that the obligations imposed on States by the Convention are clearly ascertainable.  Unless the groups to whom this convention applies is ascertainable, it will give rise to uncertainty and conflict, particularly in relation to any monitoring and complaint (communication) procedures under the convention.

A few participants indicated that they were concerned that by focussing on the nature of impairment in the definition, the social barriers to full and equal enjoyment of the rights of people with disability may not be achieved.  To this end, some argued (in line with current International Disability Caucus debate) that the definition needed to reflect a social model of disability.  

The main tenet of the social model is that, while people may be limited by impairment, it is society that disables people, by establishing and maintaining institutional, social and physical barriers to access and inclusion with society.  The social model places the ‘problem’ of disability in the social environment, rather than in the ‘pathology’ of the individual. Its action implication is social change rather than personal cure.  

However, others argued that a broad social model definition which did not incorporate a clear relationship with impairment will not provide a necessary protection for certain groups of people with disability.  Further, it was argued in line with the 2004 Australian consultation findings, that it should be recognised that all of the substantive articles of the convention identify and respond to the social and environmental barriers encountered by people with disability, so the convention has achieved its objective of being based in a social model of disability.  

One compromise that was suggested was to include a definition which incorporates a chapeau which describes the disabling effects of socio-economic conditions and ends with a broad and inclusive definition based on impairment type, such as that found in the Disability Discrimination Act 1992.  It was recognised, however, that in the deliberations at the Ad Hoc Committee, should the decision of the Australian delegation be whether to support a social model or a broad model on impairment, that the broad-based model is most preferable.

A further suggestion involved making an additional to the Preamble recognising the impact of disabling social barriers.  Please refer to section 2.2 of this report (above).

Participants also identified that the Chair’s Text does not include the nature of a person’s disability.  Most participants indicated that the Convention needed to include in the definition of discrimination recognition that disability may be permanent, temporary, episodic or transitory in nature.  However, it was recognised that at international law, these terms may prove problematic.  Nevertheless, most participants argued for the inclusion of the nature of disability in the definition.

Recommended text:

“Disability:” In this convention “disability” means: 

A person who is limited by the separate or concomitant impact of physical, economic, social and cultural environments and/or who experiences

(a) 	total or partial loss of the person's bodily or mental functions; or 
(b) 	total or partial loss of a part of the body; or 
(c) 	the presence in the body of organisms causing disease or illness; or 
(d) 	the presence in the body of organisms capable of causing disease or illness; or 
(e) 	the malfunction, malformation or disfigurement of a part of the person's body; or 
(f) 	a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or 
(g) 	a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; 

and includes a disability that:

(h) 	presently exists; or 
(i) 	previously existed but no longer exists; or 
(j) 	may exist in the future; or 
(k) 	is imputed to a person. 

Discrimination

Chair’s text 
“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on a basis of equality with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.  It includes all forms of discrimination, including direct and indirect discrimination.

Some participants identified the need to include the term “practice” in the definition.  Participants argued that the inclusion of the term is essential to reflect the fundamental meaning of indirect discrimination – that is practices which appear on their face to be neutral but in fact impact adversely on those with particular attributes.

There was also substantial discussion on whether a definition should include the term ‘associate’.  Some participants argued that such an inclusion would significantly broaden the application of what constitutes discriminatory practices and may result in a number of States being unprepared to sign off on such a broad definition.  In addition, some argued that the inclusion could make the definition too prescriptive and shift the focus from persons with disability onto the rights of others, which may have the effect of diluting the rights of persons with disability.  Others argued that if the term ‘associates’ was not included there would be a risk that this will remain an area that persons with disability may experience discrimination, albeit indirect.  Still others argued that this convention based on the rights of people with disability and any attempt to include others rights in the convention would dilute it strength and relevance to people with disability. 

The general perception of participants was that at this time the term of associates does not need to be included as a definition.  

Participants also endorsed the findings of the 2004 Australian consultation there needs to be an inclusion that discrimination may occur for one or more reason.  Participants argued that it should be made clear that if something is done for more than one reason it can still amount to unlawful discrimination.  Participants pointed to domestic anti-discrimination law which take this approach and argued that unfair discrimination must be challenged for itself, whether or not it is accompanied by other motivations as well.

Recommended text
“Discrimination on the ground of disability” includes:
(a)	any practice, distinction, exclusion, or restriction on the ground of disability which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.  It includes all forms of discrimination, including direct and indirect discrimination 
(b) 	any act, criterion, provision, practice, policy, rule or arrangement which, although not explicitly based on disability -
(i)	has a disproportionate impact on persons with disability or persons with particular disability;
(ii)	has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms in any area of life; and
(iii)	cannot be objectively justified as a reasonable and proportionate means of achieving a legitimate aim.
(c)	failure to provide reasonable adjustments to facilitate the participation of a person with disability in any area of life; or
(d)	An act is done for two or more reasons, where disability is one of those reasons, whether or not it is the dominant or a substantial reason for doing the act; or
(e)	Less favourable treatment of an associate of a person with disability because of that other person’s disability or because of the association.

Language

Chair’s text
“Language” includes oral-aural languages and sign languages.

Participants indicated that this definition is confusing.  No clear understanding of oral-aural could be determined.  Most participants supported the recommendation of the Australian Association of the Deaf that the text be simplified.  

Other participants indicated that language may also be constructed in a tactile manner.  Participants indicated that by including this recognition it would ensure that communication with blind and deafblind people is addressed and this would align with the definition of communication.  However, other participants indicated that Braille and other tactile activity is a communication tool, as distinct from a language.

However, given that the purpose of this consultation was to indicate which parts of the text were acceptable or otherwise, participants agreed to leave the text as it is, but to note it may require further clarification.

National laws

Chair’s text
 “National laws of general application” means laws that apply to society as a whole and which do not differentiate in respect of persons with disabilities.  “National laws and procedures of general application” and “national laws, customs and traditions of general application” shall have the same meaning, mutatis mutandis. 

There was widespread support for the definition of national laws contained in the Chair’s Text, particularly in light of its relevance to Article 23: Respect for Home and the Family (discussed elsewhere in this report).  However, one participant indicated that the concept ‘mutatis mutandis’ should be clarified to ensure accessibility of the convention text and indicated that UN language equivalents could be substituted as follows:

Recommended text
…. shall have the same meaning, the necessary changes having been made; with the necessary changes having been carried out; having substituted new terms; with respective differences taken into consideration.

Reasonable accommodation

Chair’s text
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on a basis of equality with others of all human rights and fundamental freedoms.

There was widespread concern amongst consultation participants regarding the inclusion of the concept ‘disproportionate burden’.  Nearly all participants indicated that people with disability should not be construed as a burden, nor should the accommodations made to ensure full and equal participation be considered in such a manner.  

Most participants considered the concept ‘unjustifiable hardship’ as an acceptable alternative.  It was recognised that there was significant jurisprudence behind the concepts of both unjustifiable hardship and undue hardship; however this was not the case for the term disproportionate burden.  In addition, participants argued that the test of ‘…not imposing a disproportionate burden …’ appeared less than that currently contained in the Disability Discrimination Act 1992.  Moreover, participants argued, it was important to set the highest possible benchmark in this convention and that the concept of disproportionate burden did not achieve this.

However, participants recognised that the concept of unjustifiable hardships may not be fully accepted at international level and agreed that ‘disproportionate hardship’ may be used as a compromise, should ‘unjustifiable hardship’ not be accepted.

Recommended text

“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing an unjustifiable [disproportionate] hardship, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on a basis of equality with others of all human rights and fundamental freedoms.

Universal design

Chair’s text
“Universal design” and “inclusive design” mean the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.

Participants strongly supported this definition of ‘universal design’ and ‘inclusive design’.

Inclusion

Participants suggested that the term ‘inclusion’ needed to be given definition.  This was discussed particularly in the context of Article 24: Education.  However, it was also identified that the term was also used in other places in the Chair’s Text.   Participant indicated that this term varies in definition over different contexts and therefore needs definition.

2.4 	Article 3: General Principles

Chair’s text

The fundamental principles of this Convention shall be:
(a)	Dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b)  Non-discrimination;
(c)	Full and effective participation and inclusion in society on an equal basis with others for persons with disabilities;
(d)	Respect for difference and acceptance of disability as part of human diversity and humanity;
(e)  Equality of opportunity;
(f)  Accessibility;
(g) Equality between men and women.

Participants generally supported Article 3: General Principles, but sought additions to encompass other general principles upon which the convention ought to be based.  

With regard to paragraph (g) equality between women and men, please refer to discussion in section 2.7 of this report.

In the 2004 Australian consultation many participants called for explicit recognition of the ability and contribution of people with disability to civil society and to the political, social, economic and cultural diversity and well-being of the community.  This was again supported in the 2005 Australian consultation.  It was repeatedly suggested that there is often too much emphasis on what people with disability ‘need’ from the community, and not enough emphasis on what they ‘contribute’ to it.  Participants therefore felt that there should be a fundamental principle incorporated into the convention that recognised this contribution.

Recommended text

(g) Equality between women and girls and men and boys; 

and new paragraph

(h) Recognition and respect for the ability and contribution of people with disability to society and to the political, social, economic and cultural diversity and wellbeing of the community.

2.5  	Article 4: General Obligations

Chair’s text

1.	States Parties undertake to ensure the full realization of all human rights and fundamental freedoms for persons with disabilities without discrimination of any kind on the basis of disability.  To this end, States Parties undertake:

(a)	to adopt legislative, administrative and other measures to give effect to this Convention, and to amend, repeal or nullify any laws and regulations and to discourage customs or traditions that are inconsistent with this Convention;

(b)	to embody the rights of equality and non-discrimination on the basis of disability in their national constitutions or other appropriate legislation, if not yet incorporated therein, and to ensure, through law and other appropriate means, the practical realization of these rights;

(c)	to mainstream disability issues into all economic and social development policies and programmes;

(d)	to refrain from engaging in any act or practice that is inconsistent with this Convention and to ensure that public authorities and institutions act in conformity with this Convention;

(e) 	to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;

(f) 	to undertake or promote the development, availability and use of:
(i) 	universally designed goods, services, equipment and facilities, to meet the specific needs of persons with disabilities, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, and to promote universal design in the development of standards and guidelines;
(ii) 	new technologies, including information and communication technologies, mobility aids, devices, assistive technologies, suitable for persons with disabilities, giving priority to affordably priced technologies;

(g)	to provide accessible information to persons with disabilities about mobility aids, devices, and assistive technologies including new technologies, as well as other forms of assistance, support services and facilities.

2.	With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international co-operation, with a view to achieving progressively the full realisation of these rights, except where achieving progressively the full realisation of these rights would result in discrimination on the basis of disability.   

3. 	In the development and implementation of legislation and policies to implement this Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve, persons with disabilities and their representative organizations.   Such issues shall include standards and guidelines for accessibility, the formulation of health, habilitation and rehabilitation legislation and the planning, delivery and evaluation of health, habilitation and rehabilitation services, and the design and implementation of data collection.

4. 	Nothing in this Convention shall affect any provisions which are more conducive to the realisation of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State.

There was general support for this article.  No amendments or revisions to the Chair’s Text are proposed.

2.6 	Article 5: Equality and Non-Discrimination

Chair’s Text

1.	States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 

2.	States Parties shall prohibit any discrimination on the basis of disability and guarantee to persons with disabilities equal and effective protection against discrimination.  States Parties shall also prohibit any discrimination and guarantee to persons with disabilities equal and effective protection against discrimination on any other grounds.

3.	States Parties undertake to take all appropriate steps to ensure that reasonable accommodation is provided. 

4.	Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination on the basis of disability. 

There was general support for this article.  No amendments or revisions to the Chair’s Text are proposed.

2.7 	Article 6: Women with Disabilities

Chair’s text
The Chair left vacant text on women with disability.

There was overwhelming support for the inclusion of specific reference to women with disability in the convention.  Participants pointed to the multi-disadvantage that women with disability experience as well as the many instances of human rights abuse and neglect experienced at the intersection of gender and disability.  Participants noted that these were clearly documented in the 2004 Australian consultation report.  

In addition, Women with Disabilities Australia argued that women with disability are “… clearly one of the most marginalised, neglected, excluded and isolated” … groups in Australia and world-wide.  Women with disability experience “… triple discrimination – female, poor and disabled” and are:
•	ignored in Government legislation, policies and programs
•	neglected within services and programs across all sectors
•	excluded from social movements designed to advance the position of women, and the position of people with disabilities
•	subject to exploitation in all areas of their lives
•	raped, abused, unlawfully sterilised, chemically restrained, medically exploited, institutionalised, denied control over their bodies, their finances and living situations
•	denied employment, education and training
•	denied social contact and opportunities to participated in their communities
•	denied opportunities to participate in organisations, leadership roles and training
•	discriminated against, harassed, humiliated, victimised and vilified
•	the most vulnerable and least protected.

Most participants recognised that the inclusion of gender-equity provisions in the Preamble (at paragraph n) was welcome, however, pointed out that, of itself, was not sufficient to address the specific issues of women and girls with disability.  In particular, participants argued that inclusion in the Preamble would not necessarily oblige States Parties to act to eliminate disadvantage and discrimination.  Participants argued that additional references were needed to adequately ensure coverage of women with disability in the convention.

Most participants recognised the importance of including a specific interpretive article with reference to a range of population groups (please refer to section 3 of this report for further detail on this matter).  However, there was very strong support for a separate and specific interpretive article on women with disability, recognising those disadvantages and discrimination outlined above.  Women with Disabilities Australia (WWDA) provided draft text for such an interpretive article.  

The relationship to the Convention of All forms of Discrimination Against Women (CEDAW) to this convention was also discussed at length.    Participants indicated that reliance on the Convention as specifically addressing discrimination against women with disability as fundamentally flawed.  Specific arguments included that:
•	CEDAW does not include specific reference to women with disability
•	general recommendation 18 (A/46/38) of the Committee on the Elimination of All forms of Discrimination Against Women requesting States Parties to provide information on women with disability in reports to the Committee is not widely adhered to by States Parties, or at best minimally responded to or provides an inaccurate analysis of the position of women with disability
•	the Optional Protocol to CEDAW adopted by the UN General Assembly in 1999 has not received wide support from States Parties, including Australia
•	the development of the convention on the human rights of people with disability does not and should not in itself mean that other thematic treaties should not apply to people with disability

Most participants argued that inclusion of women with disability in both CEDAW (through general recommendation 18) and this convention on the rights of people with disability through an interpretive article should provide women with disability with a choice under which treaty to seek redress.  Participants indicated that the relationship between the two conventions should be a technical matter and therefore dealt with under Part 4 of this convention.

Some participants also argued for a mainstream approach through the recognition of the rights of women and girls with disability in key substantive articles of the Convention.  Participants argued that this would strengthen the requirements on States to report on the progress of achievement of rights for women with disability under every article, rather than one article only.  However, those who supported this approach, did so only on the provision that an interpretive article on women and girls with disability was also included.

Given the complexity of this issue and the relationship to a proposed additional interpretive article to the Chair’s Text the following recommendations are made with a view to the Australian delegation requiring flexible instructions on this matter.

Recommended position 1

That specific reference to women and girls with disability be included in:
•	Preamble (please refer to Section 2.1 of this report)
•	General principles (please refer to Section 2.4 of this report)
•	Specific interpretive article on population groups (please refer to Section 3 of this report)
•	Interpretive article on women with disability
•	Mainstreamed throughout relevant substantive articles

Interpretive Article 6: Women with disability

States Parties recognise that women and girls with disability are subject to multiple discrimination and that focused, gender-specific measures (including protective measures) are necessary to ensure that women and girls enjoy all human rights and fundamental freedoms on the basis of equality with men and boys.

States Parties undertake to take all necessary measures to ensure the equal right of women with disability to the enjoyment of all rights set forth in this convention.  

Mainstreamed throughout relevant substantive articles:  (for example, Article 16 Freedom from Violence and Abuse, Article 23 Respect for the Home and Family, and Article 25 Health).

Recommended position 2  

That specific reference to women and girls with disability be included in:
•	Preamble (please refer to Section 2.1 of this report)
•	General principles (please refer to Section 2.4 of this report)
•	Specific interpretive article on population groups (please refer to Section 3 of this report)
•	Interpretive article on women with disability

2.8 	Article 7: Children with Disabilities

Chair’s text
The Chair left vacant text on children with disability.

As with women with disability in the previous section, there was overwhelming support for the inclusion of specific reference in the convention on the rights of children with disability.  

Most participants also re-iterated support for the inclusion of young people within the text of this article as articulated in the 2004 Australian consultation report.

Participants noted that the Convention on the Rights of the Child (CRC) includes Article 23 that provides reference to children with disability.  Participants also noted that some States Parties have interpreted this as the only article that relates to children with disability and reports to the Expert Committee have been tailored as such.  In effect, progress toward the implementation of rights of children and young people have only been reported under this article.  Participants noted that this highlights the inherent risk of having only a substantive article on children and young people within this convention.  Participants also noted there is no reference to children at present in the general principles of this convention and recommended consistency in approach.

In general, participants supported a multi-faceted approach to the inclusion of reference to children and young people with disability in this convention.  This included a reference to children and young people in Article 3: General Principles, inclusion of an interpretive article on children and young people (in addition to a more general interpretive article on the recognition of specific population groups) and mainstreaming reference to children and young people in relevant substantive articles.   

Recommended position 1

•	Change the title and text of the article to include children and young people
•	General principles: inclusion of specific text on children and young people with disability
•	Specific interpretive article on population groups (please refer to Section 3 of this report)
•	Inclusion of an interpretive article on children and young people
•	Mainstreaming issues of children and young people in substantive articles.

Recommended position 2

•	Change the title and text of the article to include children and young people
•	General principles: inclusion of specific text on children and young people with disability
•	Specific interpretive article on population groups (please refer to Section 3 of this report)

2.9 	Article 8: Raising Awareness Regarding Disability 

Chair’s text

1.	States Parties undertake to adopt immediate and effective measures to:
(a)	raise awareness throughout society regarding disability and persons with disabilities, and to foster respect for their rights;
(b)	combat stereotypes and prejudices about persons with disabilities in all areas of life;
(c)	promote awareness of the capabilities and contributions of persons with disabilities.

2.	Measures to this end include:
(a) 	initiating and maintaining effective public 	awareness campaigns designed 	to:
(i)	nurture receptiveness to the rights of persons with disabilities;
(ii)	change negative perceptions and social prejudices towards persons with disabilities in all matters of [sexuality,] marriage, parenthood and family relations of persons with disabilities;
(iii)	promote recognition of the skills, merits, abilities and contributions of persons with disabilities to the workplace and the labour market;

(b)	fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities;

(c) 	encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of this Convention;

(d) 	promoting disability-sensitive awareness training programmes.

There was general support for this article.  No amendments or revisions to the Chair’s Text are proposed.

2.10 	Article 9: Accessibility

Chair’s text

1.	States Parties to this Convention shall take appropriate measures to ensure accessibility for persons with disabilities by identifying and eliminating obstacles to the built environment, to transportation, to information and communications, including information and communications technologies, and to other services, in order to ensure the capacity of persons with disabilities to live independently and to participate fully in all aspects of life.  These measures shall apply to, inter alia: 

(a)	the construction and renovation of public buildings, roads and other facilities for public use, including schools, housing, medical facilities, in-door and out-door facilities and publicly owned workplaces; 

(b)	the development and remodelling of public transportation facilities, communications and other services, including electronic services. 

2.	States Parties shall also take appropriate measures to: 

(a)	provide in public buildings and facilities signage in Braille and easy to read and understand forms; 

(b)	provide forms of live assistance and intermediaries, including guides, readers and sign language interpreters, to facilitate accessibility to public buildings and facilities; 

(c)	develop, promulgate and monitor implementation of minimum national standards and guidelines for the accessibility of public facilities and services; 

(d)	ensure that private entities which provide public facilities and services take into account all aspects of accessibility for persons with disabilities; 

(e)	provide training for all stakeholders on accessibility issues facing persons with disabilities;

(f)	promote access for persons with disabilities to the new communication technologies and systems, including the Internet;

(g)	promote the design, development, production and distribution of accessible information and communication technologies at an early stage, so that the information society becomes inclusive at minimum cost;  

(h)	promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information.

There was general support for this article.  No amendments or revisions to the Chair’s Text are proposed.

PART 2

2.11 	Article 10: Right to Life

Chair’s text

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.

Some participants noted that this article is a restatement of the right contained in International Convention on Civil and Political Rights (ICCPR) and that there has been extensive discussion at the Ad Hoc Committee sessions and that the recommendation has always reverted to the right contained in ICCPR.  

Participants re-iterated support for the findings of the 2004 Australian consultation on this article.  In particular, some participants expressed concern that external debates on bio-ethics, human genome project and life sustaining measures may necessitate finding ways in which other articles and existing mechanisms within the instrument can encapsulate key rights.  

Nevertheless, participants who discussed this article recognised the need for the article to remain succinct.  It was therefore recognised that within the limited scope of the consultation and the likely debates to occur at the Ad Hoc Committee, that at this point, there is general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.12 	Article 11: Situations of Risk

Chair’s text

[States Parties recognize that in situations of risk to the general population persons with disabilities are especially vulnerable and shall take all feasible measures for their protection.]

There was general support for this article as it was understood to focus on responses to emergency situations to ensure people with disability are adequately protected in such situations.  Participants sought to distinguish between situations where people were at risk of harm from others and those where people were at risk from man-made and natural disasters.  To this end, participants recommended re-titling the article to ‘situations of emergency’.

Participants re-iterated support for the 2004 Australian consultation findings in which it was pointed out that emergency arrangements at the domestic and international levels typically fail to address the specific needs of people with disability, whether this is in relation to emergency egress from buildings, or the provision of essential social assistance to people with disability displaced by armed conflict or natural disaster.  A number of participants noted that the treatment of people with disability in situations of emergency is particularly pertinent at this time in the context of ‘homeland security’ measures and recent natural disasters.

Some participants pointed to the need to ensure that plans for dealing with emergency situations need to be appropriate and relevant to people with disability and the importance of including people with disability in the planning process.

Recommended text

People with Disability in Situations of Emergency

States Parties to this convention shall take immediate and effective measures to eliminate discrimination on the ground of disability in situations of emergency.  This shall include:

(a)	The elimination of discrimination on the ground of disability from emergency response arrangements;
(b)	The development and implementation of special measures required to provide for the safety of people with disability in emergency situations on equal terms with others, as far as technically possible;
(c)	The incorporation of any specific health care, aids and appliances and other social assistance required by people with disability into emergency relief provided to persons in emergency
(d)	The inclusion of people with disability in the planning of emergency measures.

2.13 	Article 12: Equal Recognition as a Person Before the Law

Chair’s text

1.	States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2.	 States Parties shall recognize that persons  with disabilities have [legal capacity] on an equal basis with others in all fields and shall ensure, to the extent possible, that where support is required to exercise [that capacity] [the capacity to act]:

(a)	the assistance provided is proportional to the degree of support required and tailored to the person’s circumstances, that such support does not undermine the legal rights of the person, respects the will and preferences of the person and is free from conflict of interest and undue influence.  Where appropriate, such support shall be subject to regular and independent review;

[(b)	where States Parties provide for a procedure, which shall be established by law, for the appointment of personal representation as a matter of last resort, such a law shall provide appropriate safeguards, including regular review of the appointment of and decisions made by the personal representative by a competent, impartial and independent tribunal.  The appointment and conduct of the personal representative shall be guided by principles consistent with this Convention and international human rights law.] 

3.	States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit; and shall ensure that persons with disabilities are not arbitrarily deprived of their property.  

This article was debated extensively by participants.  Participants strongly affirmed that the convention must assert the right of people with disability to equal recognition as persons before the law and as having legal capacity.  However, there were some differences of opinion on the inclusion of substitute decision-making and the need to strengthen commitments to supported decision-making in the article.

Participants recognised that for many adults with disability substitute decision-making (or adult guardianship or trusteeship) has resulted, and continues to result in, the denial of the legal capacity of the individual with disability, and in abuse and neglect of their human rights.   The participants in the focus group for people with intellectual disability, for example, indicated that there can be situations where guardianship can be forced on a person and that there are many people with disability who do not need assistance with decision-making, although there are some people who do need assistance.  However, there needs to be an informed choice made by people with disability about this type of assistance.  In particular, this group indicated that people, where necessary, must be supported to the greatest degree possible to make decisions for themselves and that there must be opportunities for skills development in decision-making for people who require this.  

Other participants also pointed out that the absence of decision-making arrangements for adults with disability have also resulted in extensive exploitation, abuse and neglect.  The many forms of exploitation, abuse and neglect were documented in the 2004 Australian consultation report and were re-iterated by participants in this consultation.  These include exploitation of the person’s financial resources, sometimes even by family members, failure to perform beneficial medical and dental procedures on the basis that there is no-one to consent or advocate for them, and failure to protect against harmful or unnecessarily restrictive interventions, for example, non-therapeutic sterilisation, polypharmacy, aversive behaviour management procedures etc.  

The majority of participants argued that if the right to appropriate safeguards, through substitute decision-making are not contained in the convention then people will continue to be subjected to human rights abuses and exploitation.   This position was strongly expressed by the peak mental health consumers’ organisation, the Australian Mental Health Consumers Network in particular.

However, a few participants, including a representative of the World Network of Users and Survivors of Psychiatry indicated there was not support for substitute decision-making per se as this detracted from a person’s right to make decisions, irrespective of their capacity to do so.  Rather, it was argued that in all instances supported decision-making is preferable and that resources needed to be made available to facilitate this.  

The majority of participants, however, were strongly of the view that substitute decision-making – with appropriate legal safeguards - is essential to protect and promote the rights of some people with disability, and that this needs to be a mechanism of last resort.  

Most participants recognised that this article infers that people with disability have legal capacity and recognises that people may require additional support or assistance to exercise this right.  Further, that such support is based on the individual needs of the person, does not undermine the decision-making capacity of the person and shall be subject to appropriate review.  

Participants were unclear as to the intent of the words ‘to the extent possible’ in paragraph 2 of the article.  Some argued that the text was intended to give effect to paragraph 2, sub paragraph (b) of the article.  However, participants were strongly opposed to the inclusion of the text, if the intent is to qualify the level of assistance that might be provided and to limit resources provided in supported or substitute decision-making.  

The way in which the article may be interpreted in relation to people whose decision-making capacity may change was also discussed by participants.  Participants, including the Australian Mental Health Consumers Network and the Mental Health Legal Centre argued that the convention should impose an obligation on States Parties to enable people whose decision-making capacity may change to make wills or give directives as to the type and level of care and support that is required by them.   In this sense, the article will give optimum effect to people’s self determination by allowing people, when well, to make decisions about how their affairs will be conducted if they are deemed to lack capacity.  To this end, participants recommended an amendment to article 2 to read ‘… that where support, including use of instruments such as living wills/advance directives is required…’.  
 
Participants in the focus group with people with intellectual disability argued that there needs to be checks and balances in place to ensure that substitute decision-making is not abused and people are not taken advantage of.  In addition, this group, and other participants argued that there needs to be processes to review and appeal a decision and that people with disability must be given appropriate support to do so.  Participants noted that paragraph 2 (a) includes the text ‘where appropriate’.  Participants indicated that while it is welcome that there is provision for independent review of supports, it will always be necessary and appropriate for people to have access to such review.  The Mental Health Legal Centre, for example, recommended including an alternate statement to the effect that ‘such supports shall be subject to independent review, on application by the persons and automatically at appropriate regular intervals’.  This encapsulates the essential right for a person wishing to challenge supports to do so, as well as recognising the reality that many people with disability may be unable to initiate a review themselves.

As indicated above, there was extensive debate on the need for, and inclusion of, provisions for substitute decision-making.  The World Network of Users and Survivors of Psychiatry argued that the network did not support substitute decision-making and on this basis, paragraph 2 (b) should be deleted.  However, majority of the participants indicated that substitute decision-making will continue to occur and that there must be safeguards in place to ensure that this is undertaken with full effect to people’s human rights.  To this end, most participants recommended the inclusion of paragraph 2(b).  

However, participants also pointed out that (similar to the argument in 2(a) above) that reviews, as one safeguard, need to be available both at the request of the person and at regular intervals.  In addition, participants argued for the need for appeal rights from guardianship or trusteeship tribunals to a court.  To this end, the following amendments to paragraph have been suggested ‘… including review, at the person’s request and at regular intervals, of the appointment …’ and ‘… appeal rights from the independent tribunal to a court of law must be available’.

Participants also pointed out that people with disability must have access to appropriate and free advocacy, including legal advocacy.  It was pointed out that Principle 1(6) of the United Nations Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care makes this provision.  Participants re-iterated support for an addition sub-paragraph recommended in the 2004 Australian consultation to this effect.  

Recommended text

1.	States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2.	 States Parties shall recognize that persons  with disabilities have legal capacity on an equal basis with others in all fields and shall ensure that where support is required to exercise that capacity:

(a)	the assistance provided is proportional to the degree of support required and tailored to the person’s circumstances, that such support does not undermine the legal rights of the person, respects the will and preferences of the person and is free from conflict of interest and undue influence.  Such support shall be subject to independent review on application by the persons and automatically at appropriate regular intervals of the appointment.  Such reviews shall be subject to appeal rights from the independent tribunal to a court of law.   

(b)	where States Parties provide for a procedure, which shall be established by law, for the appointment of personal representation as a matter of last resort, such a law shall provide appropriate safeguards, including 
(i)	regular review of the appointment of and decisions made by the personal representative by a competent, impartial and independent tribunal.  
(ii)	The appointment and conduct of the personal representative shall be guided by principles consistent with this Convention and international human rights law.  
(iii) 	Such safeguards shall be subject to independent review on application by the persons and automatically at appropriate regular intervals of the appointment.  
(iv) 	The person shall have free access to legal 	aid in relation to any proceeding dealing 	with their legal capacity, including an appeal 	from such proceedings, and in relation to a 	decision to be taken pursuant to a finding of 	incapacity.

3.	States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit; and shall ensure that persons with disabilities are not arbitrarily deprived of their property.  

2.14 	Article 13: Access to Justice

Chair’s text

States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, facilitating their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including the investigative and other preliminary stages.

The Chair has indicated that given the brevity of the article, it may be better placed in Article 12 (Equal recognition before the law).  However, most participants agreed that although there are related concepts in articles, the nature and intent of the access to justice article may get diluted if it were included with equal recognition before the law.  In particular, equal recognition before the law deals largely with issues of legal capacity.  It may be that if access to justice was subsumed it may be interpreted that access issues should only be considered as relating to those people where legal capacity was to be determined, rather than all people with disability.  Participants noted that this article is very broad ranging and the notion of reasonable accommodation is applied and includes equality on different levels of the justice system e.g. as a witness, as a victim etc.  

Participants re-iterated support for the discussion and recommendation contained in the 2004 Australian consultation report which considered access to justice issues in the context of equal recognition before the law (as these issues were presented in the previous draft article).  Participants indicated that people with disability do not experience equality before the law because legal procedures, rules and practices are very disabling, especially for people with cognitive disability.  This can lead to under-reporting of crimes, lack of investigation, infrequent prosecution and low conviction rates of crimes against people with disability.  Participants supported the inclusion of specific text that requires modification, adjustment and flexible legal procedures, practices and rules and to provide specific accommodations including accessible information, personal assistance and alternative modes of communication.

Recommended text

1.	States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, facilitating their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including the investigative and other preliminary stages.

2.	States Parties to this convention shall recognise that the full and effective enjoyment by people with disability of the right to access to justice shall require the modification, adjustment and flexible application of legal procedures, practices and rules, including rules of evidence.  

3.	States Parties shall take immediate and effective measures to provide such accommodation, which shall include:
(i)	Provision of information in plain-language and other formats accessible to people with disability;
(ii)	Provision of personal assistance to understand legal procedures, practices and rules;
(iii)	Recognising and facilitating access to alternative modes of communication, and communication technology, including Sign Language and Braille;
(iv)	Access to free advocacy and legal advice.

2.15 	Article 14: Liberty and Security of the Person

Chair’s text

1.	States Parties shall ensure that persons with disabilities, on an equal basis with others:

(a)	enjoy the right to liberty and security of person;

(b)	are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and in no case shall the existence of a disability justify a deprivation of liberty.

2.	States Parties shall ensure that if persons with disabilities are deprived of their liberty through a civil, criminal, administrative or other process, they have at least the following guarantees:

(a)	to be treated with humanity and respect 	for the inherent dignity and worth of the 	human person, and in a manner that 	respects their human rights, conforms 	with 	the objectives and principles of 	this 	Convention, and reasonably 	accommodates their disability;

(b)	to be provided promptly with adequate accessible information as to their legal rights and the reasons for the deprivation of their liberty;

(c)	to be provided with prompt access to legal and other appropriate assistance to:
(i)	challenge the lawfulness of the deprivation of their liberty and to receive a fair hearing, including the right to be heard before a court or other competent, independent and impartial authority (in which case, they shall be provided with a prompt decision on any such action); 
(ii)	seek review on an equal basis with others of the deprivation of their liberty, including periodic review as appropriate;

(d)	to have an enforceable right to compensation in the case of unlawful deprivation of liberty.

Participants discussed the detail of this article extensively.  It was noted that there is a direct relationship between this article and that of Article 12.  Much of the discussion on this article related to compulsory assistance (or involuntary institutionalisation and treatment) of people with disability, particularly but not exclusively, people with mental illness.  

As with the debate regarding Article 12, participants indicated that compulsory assistance has led to the abuse and neglect of the human rights of people with disability in all parts of the world.  However, participants also recognised that failure to render compulsory assistance in some circumstances has also lead to the abuse and neglect of the human rights of people with disability. 

Some participants argued that compulsory assistance by its very nature is a violation of human rights.  One participant argued that prohibiting compulsory assistance would put pressure on States to develop supports and treatments that would support consumers to not be subject to compulsory assistance and that would render it redundant.  

However, most participants did not view compulsory assistance as inherently incompatible with human rights, and argued that in some cases it is necessary for the realisation of human rights and that to ensure this, that any form of compulsory assistance must be limited to exceptional circumstances and be subject the stringent safeguards.  

To this end, participants suggested the inclusion of the text ‘exceptional circumstances’ in order to limit the scope of States Parties to enforce compulsory assistance.  Further, many participants expressed concern that any deprivation of liberty must be subject to prompt, judicial review independent of executive government.  In addition, concerns were expressed to ensure that persons with disability subject to compulsory assistance have access to free, accessible advocacy and legal representation.  In addition, concerns were expressed to ensure this article (similar to that expressed in Article 12) allows for an automatic review as well as review and appeal initiated by the person subject to the compulsory assistance order.  

Recommended  text

1.	States Parties shall ensure that persons with disabilities, on an equal basis with others:

(a)	enjoy the right to liberty and security of person;

(b)	are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and undertaken in exceptional circumstances, and in no case shall the existence of a disability justify a deprivation of liberty.

2.	States Parties shall ensure that if persons with disabilities are deprived of their liberty through a civil, criminal, administrative or other process, they have at least the following guarantees:

(a)	to be treated with humanity and respect for the inherent dignity and worth of the human person, and in a manner that respects their human rights, conforms with the objectives and principles of this Convention, and reasonably accommodates their disability;

(b)	to be provided promptly with adequate accessible information as to their legal rights and the reasons for the deprivation of their liberty;

(c)	to be provided with prompt access to free legal and other appropriate assistance to:
(i)	challenge the lawfulness of the deprivation of their liberty and to receive a fair hearing, including the right to be heard before a court or other competent, independent and impartial authority (in which case, they shall be provided with a prompt decision on any such action) and to a prompt initial automatic review of involuntary detention, as well as regular automatic reviews at least every six months; 
(ii)	to receive a prompt automatic initial and independent review of their deprivation of liberty, as well as regular automatic reviews at least every six months;  

(d)	to have an enforceable right to compensation in the case of unlawful deprivation of liberty.

2.16 	Article 15: Freedom From Torture or Cruel, Inhuman	or Degrading Treatment or Punishment

Chair’s text

1.	No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  In particular, States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned.

2.	States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.17 	Article 16: Freedom From Exploitation, Violence and Abuse	

Chair’s text

1.	States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from all forms of exploitation, violence and abuse.

2.	States Parties shall also take all appropriate measures to prevent exploitation, violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse.

3.	In order to prevent the occurrence of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.

4.	States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services.  Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person.

5.	States Parties shall put in place effective legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.18 	Article 17: Protecting the Integrity of the Person

Chair’s text

1.	States Parties shall protect the integrity of the person with disabilities on a basis of equality with others.

2.	States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.

3.	In cases of medical emergency or issues of risk to public health involving involuntary interventions, persons with disabilities shall be treated on an equal basis with others.

[4.	States Parties shall ensure that involuntary treatment of persons with disabilities is:
(a)	minimized through the active promotion of alternatives;
(b)	undertaken only in exceptional circumstances, in accordance with procedures established by law and with the application of appropriate legal safeguards;
(c)	undertaken in the least restrictive setting possible, and that the best interests of the person concerned are fully taken into account;
(d)	appropriate for the person and provided without financial cost to the individual receiving the treatment or to his or her family.]

The range of issues debated by participants in Article 17 were similar and linked to those expressed in Articles 12 and 14.  In particular, the debate centred on issues related to informed consent, compulsory assistance and substitute decision-making.  Participants indicated, therefore that there needs to be consistency in these three articles that provides for limiting the criteria by which involuntary interventions are made and in a least restrictive way and ensuring strong safeguards including access to a legal process.  

Most participants supported accepting this Article as it stands, but with strengthening safeguards.  

Recommended text

1.	States Parties shall protect the integrity of the person with disabilities on a basis of equality with others.

2.	States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.

3.	In cases of medical emergency or issues of risk to public health involving involuntary interventions, persons with disabilities shall be treated on an equal basis with others.

4.	States Parties shall ensure that involuntary treatment of persons with disabilities is:
(a)	minimized through the active promotion of alternatives;
(b)	undertaken only in exceptional circumstances, in accordance with procedures established by law and with the application of appropriate legal safeguards, including prompt automatic review,  and then review at regular intervals by an independent tribunal and with access to legal representation, such representation to be provided free of charge where the person cannot secure it themselves;
(c)	undertaken in the least restrictive setting possible, and that the best interests of the person concerned are fully taken into account;
(d)	appropriate for the person and provided without financial cost to the individual receiving the treatment or to his or her family.

2.19 	Article 18: Liberty of Movement
	
Chair’s text

[States Parties to this Convention shall take effective measures to respect and ensure the rights of persons with disabilities to liberty of movement on an equal basis with others, including by ensuring that persons with disabilities:

(a)	have the right to acquire a nationality and are not deprived of their nationality arbitrarily on the basis of disability;

(b)	are not deprived, on the basis of disability, of their ability to posses and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement;

(c)	have the right to leave any country, including their own.]

There was widespread support for this article, as it stands.  Participants indicated that all people with disability should have the same freedom of movement to migrate and there are also people who will acquire a disability later on in life, many through conflict (including war).  It was recognised that many may need to move out of the conflict situation to a safer environment.  

Participants viewed it as essential that refugees with disability be afforded recognition and called for the convention to prohibit discrimination on the ground of disability in the criteria used to assess an individual’s refugee or asylum status and in the administration of any assessment process.   Participants also called for the convention to ensure that refugees are provided with any specific health-care and social assistance they require.  

It was also noted that currently many countries, including Australia, discriminate on the ground of disability in immigration, emigration, and settlement laws and policies.  People with disability may be prevented from acquiring permanent residence or citizenship on the basis of their disability, or if they are able to obtain residence, may have to wait long qualifying periods for access to social support services.

No amendments or revisions to the Chair’s Text are proposed.

2.20	Article 19: Living Independently and Being Included in the Community

Chair’s text

States Parties to this Convention shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of their freedom of choice, living independently and full inclusion and participation in the community, including by ensuring that:

(a)	persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b)	persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c)	community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.21 	Article 20: Personal Mobility

Chair’s text

States Parties to this Convention shall take effective measures to ensure liberty of movement with the greatest possible independence for persons with disabilities, including:

(a)	facilitating the freedom of movement of persons with disabilities in the manner and at the time of their choice, and at affordable cost;

(b)	facilitating access by persons with disabilities to high-quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;

(c) 	providing training in mobility skills to persons with 	disabilities 	and to specialist staff working with persons 	with disabilities;

(d)	encouraging private entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.22	Article 21: Freedom of Expression and Opinion and Access to Information

Chair’s text

States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through sign languages, and Braille, and augmentative alternative communication and all other accessible means, modes and formats of communication of their choice, including by:

(a)	providing information intended for the general public in a timely manner and without additional cost to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities;

(b)	accepting and facilitating the use of sign languages, and Braille, and augmentative alternative communication and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;

(c)	urging private entities that provide services to the 	general 	public including through the internet to provide information and 	services in accessible and usable formats for persons with 	disabilities;

(d)	urging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;

(e)	[[developing] [recognizing] [promoting] a national sign language.]

Some participants indicated that advocacy is sometimes necessary for people with disability because the barriers to free expression and communication are social as well as technical.  Advocacy should not be relegated to only those areas of the lives of people with disability where support for having their rights met is required.  Participants indicated that advocacy is also important to assist people to communicate, particularly for people with cognitive disability.  

In addition, participants indicated that paragraph (e) should read ‘recognising’ a national sign language.  The importance here was the need to accept sign language as an official language of nations.  The example of the New Zealand government legislating that county’s sign language as an official language was provided.

Some participants indicated that there was a need to ensure, not urge, private entities, including the mass media to provide services to the general public, including people with disability and recommendations have been made thus.

Blind Citizens Australia made the point that the article does not spell out clearly the formats required by people who are blind or vision impaired nor does it provide guidance to web accessibility by referencing the acknowledged benchmark for internet accessibility as formulated by the World Wide Web Consortium (W3C) Web Accessibility Initiative (WAI).  While, sometimes it is accepted that ‘alternate formats’ includes formats for people who are blind or vision impaired, it is important to ensure that all articles are inclusive and ensure accessible for all people.  It was recognised, however, that while the WAI may be a current benchmark, it is important not to ‘time-lock’ the convention by stating current initiatives.  Other participants indicated that it may be favourable to include reference to international standards on web accessibility and accessible programming.  

The matter of the need to clearly state what types of alternate formats are included was also raised by participants who indicated that plain language formats must equally be available, especially for people with cognitive disability.  Several amendments to the Chair’s Text have been made to include these recommendations.

Recommended text:

States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through sign languages, and Braille, and augmentative alternative communication and all other accessible means, modes and formats of communication of their choice, including by:

(a)	providing information intended for the general public in a timely manner and without additional cost to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities;

(b)	accepting and facilitating the use of sign languages, and Braille, large print and audio, plain language and augmentative alternative communication and all other accessible means, modes and formats of communication of their choice and advocacy by persons with disabilities in official interactions;

(c)	ensuring private entities that provide services to the 	general public including through the internet to provide 	information and services in accessible and usable formats for 	persons with disabilities through adhering to international 	standards on web accessibility and accessible programming 	such as the World Wide Web Consortium (W3C) Web 	Accessibility Initiative (WAI);

(d)	ensuring the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities through adhering to international standards on web accessibility and accessible programming such as the World Wide Web Consortium (W3C) Web Accessibility Initiative (WAI);

(e)	recognizing a national sign language.

2.23	Article 22: Respect for Privacy

Chair’s text

1.	No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation.  Persons with disabilities have the right to the protection of the law against such interference or attacks.

2.	States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others. 

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.24 	Article 23: Respect for the Home and the Family

Chair’s text

1.	States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family and personal relations, and in particular shall ensure, on an equal basis with others: 

(a)	that persons with disabilities are not denied the equal opportunity to [experience their sexuality,] have sexual and other intimate relationships and experience parenthood [in accordance with national laws, customs and traditions of general application];
(b)	that the right of all [men and women] [persons] with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized [and that spouses should be equal partners];
(c) 	the rights of persons with disabilities to decide 	freely and responsibly on the number and spacing 	of 	their children [and to have access to information, 	reproductive and family planning education, the means 	necessary to enable them to exercise these rights and 	the equal opportunity to retain their fertility to the 	extent that these are permitted by national laws of 	general application].
 
2.	States Parties to this Convention shall ensure the rights and responsibilities of persons with disabilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount.  States Parties shall render appropriate assistance to disabled persons in the performance of their child-rearing responsibilities.

3. 	States Parties shall ensure that a child is not separated from his or her parents against their will, except when competent authorities determine, in accordance with national laws and procedures of general application and subject to judicial review or other forms of administrative review as established by law, that such separation is necessary in the best interests of the child.  In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. 

There was strong support for this article, as it stands.  In particular, the focus group with people with intellectual disability noted that many people with disability are prevented from adopting or fostering children and many women with disability have been sterilised against their wishes and without informed consent.  This group strongly argued that women with disability should not be sterilised unless there are serious medical grounds on which to perform this procedure.  In addition, all necessary safeguards as discussed in Articles 14 and 17 must be in place to ensure that women’s human rights are met in these circumstances.

Participants also indicated that there is a need for the provision of more support for parents with disability to prevent any situation where children are removed from the family.  Participants recognised that sterilisation also affects men as they are also denied parenthood.  

Participants said that, in some cases, there is misunderstanding and stereotyping in the community that leads to beliefs that it is not appropriate for children to be around people with intellectual disability and/or that children will not have the opportunity to reach full intellectual development and/or that people with intellectual disability are more likely to have a child with disability.  

There was a strong recognition that people with disability can experience the same feelings, aspirations and expectations as others.  Moreover, that people with disability must have the right to decide for ourselves on choices such as parenthood and marriage.  

There was also strong support for the recognition of the rights of and the particular disadvantage often experienced by people with disability who identify as lesbian, gay, bi-sexual, transgender and intersexed.    It was recognised that it is important for people to be free to express their sexuality and that this not be repressed particularly because of their disability.

There was also a strong belief that children should not be removed on the basis of one or both parent’s disability.  Participants strongly urged that all necessary supports be provided to people with disability in their role as parents.  This concern was further extended by discussion of the type and level of review and safeguards that must be in place to ensure that decisions are always in the best interest of the child and that no unfair or discriminatory decisions, on the basis of disability, are made.  To this end, recommendations are made for amendment to paragraph 3 of the article as follows:

Recommended text:

… 

3. 	States Parties shall ensure that a child is not separated from his or her parents against their will, except when competent authorities determine, in accordance with national laws and procedures of general application and subject to judicial review or other forms of administrative review as established by law, that such separation is necessary in the best interests of the child.  In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.  In no case shall a child be separated from parents unless all possible efforts have been made to provide those parents with support in their role as parents.

2.25	Article 24: Education

Chair’s text

1.	States Parties recognise the right of persons with disabilities to education.  With a view to achieving this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education at all levels and life-long learning, directed to:

(a)	the full development of the human potential and sense of dignity and self worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; 

(b)	the development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;

(c)	enabling persons with disabilities to participate 	effectively in a free society.

2.	In realising this right, States Parties shall ensure:

(a) 	that persons with disabilities are not excluded from the general education system on the basis of their disability, and that children with disabilities are not excluded from free and compulsory primary and secondary education on the basis of their disability;

(b) 	that persons with disabilities can access inclusive, quality, free primary and secondary education to the extent possible in the communities in which they live;

(c) 	reasonable accommodation of the individual’s 	requirements; 

(d)	that persons with disabilities receive the support required, within the general education system, to facilitate their effective education.  In exceptional circumstances where the general education system can not adequately meet the support needs of persons with disabilities, States Parties shall ensure that effective alternative support measures are provided, consistent with the goal of full inclusion;

(e)	the development of initial and continuing training, which incorporates disability awareness, the use of appropriate communication means and modes, educational techniques and materials to support persons with disabilities, for all professionals and staff who work at all levels of education.

3.	States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community.  To this end, States Parties shall: 

(a)	facilitate the learning of Braille, alternative script, orientation and mobility skills, and facilitate peer support and mentoring; 

(b)	facilitate the learning of sign language and the promotion of the linguistic identity of the Deaf community; 

(c)	ensure that the education of children who are blind, deaf, and deaf/blind is delivered in the most appropriate languages and modes of communication for the individual, and in environments which maximise academic and social development.

4.	States Parties shall take appropriate measures to ensure quality education to students with sensory disabilities through the employment of teachers who are fluent in sign language or Braille, including teachers with disabilities.

5. 	States Parties shall ensure that persons with disabilities may access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on the basis of equality of opportunity.  To that end, States Parties shall render appropriate support to persons with disabilities.

There was widespread debate on this article.  Most participants appreciated the significant changes that have been made from previous draft articles, in order to incorporate a broad range of concerns.  

There was overwhelming support for the goal of inclusion of children and adults with disability in mainstream education.  Participants recognised that the intent of the article is to move from a ‘bricks and mortar’ approach to education to one that focuses a ‘curriculum approach’.  That is, to focus more on what is taught within the education system.  This approach was strongly endorsed.

However, dissenting debate on the article centred on the issue of the provision of choice of education environments.  Paragraph 2 (d) of the article allows for ‘exceptional circumstances’ in which the general education system can not adequately meet the support needs of people with disability that effective alternative arrangements can be made.  Blind Citizens Australia (BCA), in its submission to the consultation, argued that “concept of choice should not be restricted” in the convention.  Moreover, BCA argued that restricting choice to ‘exceptional circumstances’ only, “places unreasonable pressure on member states, especially those who are not wealthy, to contrive the concept of inclusion by placing students with disabilities in the mainstream system where adequate specialist resources cannot be afforded. This circumstance places a child who is blind or vision impaired at risk of receiving sub-standard Braille instruction when compared to specialist education providers”.  In addition, BCA argued that this term can not be used “to create or continue segregation”.  

BCA also argued that segregated specialist schools for Blind and vision impaired people are important for “quality Braille instruction … establish peer support  that can last throughout a person’s life and a conducive environment to learn orientation and mobility skills and that specialist services provided in the form of extra-curricula activities within the mainstream education system cannot match the high degree of support and skill acquisition that develops through full-time specialist education”.  To this end, BCA recommended the deletion of the text ‘exceptional circumstances’ in paragraph 2(d).

The Australian Association of the Deaf (AAD) indicated that the organisation supports inclusive education as a principle (particularly in higher education).  However, AAD pointed out that there is concern for access for Deaf children when they are young.  It is best to learn a sign language first in a context of a community of signers in order to get adequate practice at this language.  Whilst this theoretically can be provided within mainstream education system, it is not in practice and there remains inadequate opportunity for Deaf children to speak their language and exercise their linguistic rights.  

Other participants pointed out that paragraph 3(c) is not ruling out schools for Deaf or blind people, and in fact it is creating more choice by creating a continuum of education (rather than one mainstream and one segregated form) and calls for these to be included in the mainstream.  It was also argued that this highlights the right to inclusive education at all levels of the education system and recognition of life-long learning.  Moreover, participants argued that it is recognising all children have access to these within the education system this should be included and that there needs to be a variety of models to ensure inclusion.  

Participants also argued that when discussing the issue of choice, the question needs to be asked: whose choice?  Detailed examples were provided in which the provision of segregated education facilities has limited the choice available to children with disability.  One example was where it was necessary for children with disability to attend a particular school simply because it is the only school that has physical access that they require.  Participants pointed out that this situation is in fact not a choice.  Others cited examples in which children who are blind or Deaf and who live in rural areas are not provided with choice of which school to attend if the only school that provides facilities and resources for their learning and other skills development is thousands of miles away in a city.  Moreover, participants argued that to set a low benchmark of segregated versus mainstream education will encourage government policy to reduce choice to a minimal few segregated settings.  Participants strongly argued for a continuum of education.

Still other participants, including participants in the focus group of people with intellectual disability supported the concept of the need to make reasonable accommodation in all levels of the education system for people with intellectual disability.  Most participants indicated that people should have access to mainstream education, but with support to learn and to address negative peer experiences such as bullying.  Participants said that one of the benefits of inclusion of children with disability in mainstream education systems was the possibility of an increased understanding of disability by children and others without disability.  In addition, participants indicated that schools separate from the mainstream education system lead to perpetuating perceptions of people with disability as ‘different’ rather than as equals.  However, there remain problems with inclusion in mainstream education in that there is not adequate support, staff and equipment for people with disability.

It is not possible to provide a recommendation here as to whether to delete ‘exceptional circumstances’ from paragraph 2(d).  We urge the Australian government to give careful consideration to both sides of the debate.

2.26 	Article 25: Health

Chair’s text

States Parties recognise that persons with disabilities have the right to the enjoyment of the highest attainable standard of physical and mental health without discrimination on the basis of disability.  States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services, including health-related rehabilitation.  In particular, States Parties shall: 

(a)	provide persons with disabilities with the same range and standard of affordable health services as provided other persons, [including sexual and reproductive health services] and population-based public health programmes; 

(b)	provide those health services needed by persons with disabilities specifically because of their disabilities including early identification and intervention as appropriate, and services designed to minimise and prevent further disabilities including amongst children and the elderly;

(c)	provide these health services as close as possible to people’s own communities, including in rural areas; 

(d)	require health professionals to provide care of the same quality to persons with disabilities as to others and on the basis of free and informed consent by, where necessary, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private healthcare;

(e)	prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where permitted by national law, which shall be provided in a fair and reasonable manner. 

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.27	Article 26: Habilitation and Rehabilitation

Chair’s text

1.	States Parties shall take effective and appropriate measures to enable persons with disabilities to attain their maximum independence, fullest physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.  To that end, States Parties shall organise, strengthen and extend comprehensive habilitation and rehabilitation services, particularly in the areas of health, employment, education and social services, in such a way that:

(a)	habilitation and rehabilitation services and programmes begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs;
(b) 	habilitation and rehabilitation services and programmes support participation and inclusion in the community and all aspects of society, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.

2.	States Parties shall promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services.  

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.28 	Article 27: Work and Employment

Chair’s text

States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.  States Parties shall set an example through employment of persons with disabilities in the public sector, and shall take other appropriate steps to safeguard and promote the realisation of the right to work, including measures to:

(a)	protect through legislation persons with disabilities with regard to conditions of recruitment, hiring and employment, continuance of employment, career advancement, working conditions, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, and the redressing of grievances;

(b)	ensure that persons with disabilities are able to exercise their labour and trade union rights in accordance with generally applicable national legislation;

(c)	enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services, and vocational and continuing training;

(d)	promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining and maintaining and returning to employment; 

(e)	promote opportunities for self-employment, entrepreneurship and starting one’s own business;

(f)	encourage employers to hire persons with disabilities through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;  

(g)	ensure that reasonable accommodation is provided to persons with disabilities in the workplace; 

(h)	promote the acquisition by persons with disabilities of work experience in the open labour market;

(i)	promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.29	Article 28: Adequate Standard of Living and Social Protection

Chair’s text
1.	States Parties recognise the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing, housing, and to the continuous improvement of living conditions including access to clean water, and shall take appropriate steps to safeguard and promote the realisation of this right without discrimination on the basis of disability.  
2.	States Parties recognise the right of persons with disabilities to social protection, and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realisation of this right, including measures to: 
(a)	ensure access by persons with disabilities to appropriate and affordable services, devices and other assistance for disability-related needs;
(b)	ensure access by persons with disabilities, [particularly women and girls with disabilities and the aged with disabilities,] to social protection programmes and poverty reduction strategies; 
(c)	ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State to cover disability-related expenses (including adequate training, counselling, financial assistance and respite care), which should not become a disincentive to develop themselves; 
(d)	ensure access by persons with disabilities to public housing programmes. 

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.30 	Article 29: Participation in Political and Public Life

Chair’s text

States Parties shall guarantee to persons with disabilities their political rights and the opportunity to enjoy them on an equal basis with others, and undertake to:
(a)	ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others in accordance with national laws of general application, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, by: 

(i)	ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;

(ii)	protecting the right of persons with disabilities to vote by secret ballot in elections and public referenda, without intimidation, and to stand for elections and to hold office and perform all public functions at all levels of government;

(iii)	guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request allowing assistance in voting by a person of their own choice;

(b)	actively promote an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:

(i)	participation in non-governmental organisations and associations concerned with the public and political life of the country, including the activities and administration of political Parties; 

(ii)	forming and joining organisations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.31	Article 30: Participation in Cultural Life, Recreation, Leisure and Sport

Chair’s text

1.	States Parties recognise the right of persons with disabilities 	to take part on an equal basis with others in 	cultural life, and 	shall take all appropriate measures to ensure that persons with 	disabilities: 

(a) 	enjoy access to cultural materials in all accessible 	formats; 

(b) 	enjoy access to television programmes, films, theatre, 	and other cultural activities, in all accessible formats; 

(c) 	enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.

2.	States Parties shall take appropriate measures to enable persons with disabilities to have the opportunity to develop and utilise their creative, artistic an intellectual potential, not only for their own benefit, but 	also for the enrichment of society.  

3.	States Parties shall take all appropriate steps to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials, while respecting the provisions of international law. 

4.	Persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their 	specific cultural and linguistic identity, including sign 	languages and deaf culture. 

5.	With a view to enabling persons with disabilities to 	participate on an equal basis as others in recreational, 	leisure and sporting activities, States Parties shall take appropriate measures to: 

(a)	encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels; 

(b)	ensure that persons with disabilities have an opportunity to organise, develop and participate in disability-specific sporting and recreational activities, and to this end, encourage the provision, on an equal basis with others, of appropriate instruction, training and resources; 

(c)	ensure that persons with disabilities have access to sporting and recreational and tourism venues; 

(d)	ensure that children with disabilities have equal access to participation in play, recreation, and leisure and sporting activities, including those in the school system; 

(e)	ensure that persons with disabilities have access to services from those involved in the organisation of recreational, tourism, leisure and sporting activities.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

PART 3

2.32	Article 31: Statistics and Data Collection

Chair’s text

1.	Where necessary, States Parties undertake to collect appropriate information, including statistical data, to enable them to formulate and implement policies to give effect to this Convention.  The process of collecting and maintaining this information should: 

(a)	comply with legally established safeguards to ensure 	confidentiality and respect for the privacy of persons 	with disabilities, including legislation on data 	protection; 
(b) 	comply with internationally accepted norms to protect 		human rights and fundamental freedoms and ethical 		principles of statistics.

2.	The information collected in accordance with this Article shall be used to assess the implementation of States Parties obligations under this Convention, and shall also be used to identify and address the barriers faced by persons with disabilities in exercising their rights.

There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.  

2.33	Article 32: International Cooperation

The Chair included provision for an article on international cooperation.   The need for such an article was strongly supported by consultation participants.   Participants argued that focus of international cooperation need not focus on financial transfers solely, but to draw on already existing experience of international cooperation particularly in the areas of technical exchange and capacity building.  Participants indicated that international cooperation should be built on a strong understanding of sharing resources including knowledge and skills on the basis of equal partnerships.  

To this end, features of an international cooperation article could include:

Recommended text

(a)	Exchange of information concerning best practices on measures, legislation, national policies, programs and projects to implement the present convention and on the progress and challenges faced in this regard;
(b)	
Increasing public awareness on disability and the full and equal enjoyment of human rights and fundamental freedoms by persons with disability;
(c)	
Ensuring that international cooperation programs are inclusive to persons with disability;
(d)	
Encouraging the provision of technical cooperation and economic assistance to developing countries, including transfer of technology;
(e)	
Promoting research and application of accessible technologies, including assistive technologies for persons with disability;
(f)	
Conducting training courses, seminars, workshops and research;
(g)	
Supporting and develop capacity building for the full implementation of this convention.

2.34	Article 33: National Implementation and Monitoring

Chair’s text

[1.	States Parties shall designate a focal point within government for matters relating to the implementation of the present Convention, and give due consideration to the establishment or designation of a coordination mechanism to facilitate related action in different sectors and at different levels.

2. 	States Parties shall, in accordance with their legal and administrative system, maintain, strengthen, designate or establish at the national level a framework to promote, protect and monitor implementation of the rights recognized in the present Convention.]

3. 	Civil society, in particular persons with disabilities and their representative organisations, shall be involved and participate fully in all levels of the monitoring process.

Participants strongly supported this article on national monitoring and implementation.  However, participants indicated that there were several additional elements to successful national monitoring and implementation that required inclusion. 

Participants highlighted the need for resources to enable civil society to fully participate in monitoring processes and recommended that States Parties be obliged to adequate resource organisations of disabled people in order to facilitate this. 

Participants argued that in order for the convention to be fully implemented accordingly there needed to be an obligation on States to ensure the rights explicated in this convention to be enshrined in domestic law.  Linked to this, participants indicated that there needed to be avenues for people with disability to complain and seek redress on matters of infringements of human rights.

Participants endorsed the findings of the 2004 Australian consultation on matters related to national monitoring and implementation.  To this end, recommended amendments to the Chair’s Text are provided below.

Recommended text

States parties shall:
(a)	Enact laws to directly incorporate the rights set out in the convention into the domestic laws of the State;
(b)	Develop, implement, and evaluate, progressive national action plans to realise the rights set out in the convention;
(c)	Establish or designate an independent office of commissioner or ombudsman, operating consistent with the Paris Principles, with the role of monitoring the implementation of the convention within the State to ensure that the human rights of persons with disability are realised
(d)	Enact laws providing domestic avenues of complaint and redress for persons with disability, and classes of persons with disability, in circumstances where their human rights under this convention have been breached;
(e)	Mandate the role of persons with disability, and independent disabled peoples organisations, in public policy and program development, implementation, and evaluation in relation to issues impacting on persons with disability;
(f)	Provide financial support and other resources for the operation of independent disabled peoples organisations;
(g)	Develop, implement, and evaluate on a progressive basis a national program of independent advocacy services for people with disability capable of providing individual, group and systemic advocacy assistance to persons with disability to realise their rights under this convention.

2.35	Article 34: International Monitoring

Participants strongly supported mechanisms for international monitoring of the convention.  Many participants indicated concern that monitoring mechanisms of existing treaties afford States to provide minimal reporting information including superficial reports on meeting obligations contained in conventions.  In addition, participants argued strongly that there must be a mechanism for individual persons with disability to take potential breaches to an international arbiter at the United Nations. It could  	be modelled along the lines of the Optional Protocol to the ICCPR, and be accessible once domestic remedies are exhausted.

Several other features of an international monitoring component were discussed.  These include:

Recommended text:

(a)	Establish a treaty monitoring body, constituted by persons with specific expertise in the area of disability.  It was generally agreed that this body should be constituted by a majority of experts with disability, drawn from a variety of impairment backgrounds;
(b)	Require States to submit periodic reports outlining their progress in implementing the convention at the domestic level for examination by the treaty monitoring body.  In this respect, it was generally thought that a 5 yearly reporting cycle was appropriate;
(c)	Establish a procedure for complaints to be made to the treaty body by (or in respect of) individuals with disability and classes of persons with disability where there has been breach of their rights under the convention, and where no domestic remedy is available;
(d)	Establish a conciliation commission to resolve major breaches of human rights through high-level international dialogue;
(e)	Ensure the referral of issues of concern to United Nations specialist agencies for attention;
(f)	Establish a position and office of Special Rapporteur on Disability that would have the role of:
i.	Coordinating the work of the treaty body, conciliation commission, and complaints procedure;
ii.	Promoting and monitoring the implementation of the convention internationally;
iii.	Drawing the international community’s attention to areas of key concern, and promoting international cooperation, where applicable, to address them;
iv.	Developing guidance and advisory materials on implementation measures for distribution within the international community;
v.	Facilitating international cooperation and dialogue in relation to cross jurisdictional problems;
vi.	Ensuring that the obligations set out in the convention are promoted and applied throughout the United Nations system, agencies and initiatives, and through other intergovernmental and international civil society organisations and corporations;
vii.	Maintaining dialogue with disabled peoples’ organisations in relation to these matters.

3. 	Additional issues

3.1 	Treatment of Specific Population Groups

There was strong support in the consultation for the recognition of specific population groups that are perceived as additionally disadvantaged by the intersection of disability with another characteristic.  Those groups identified as requiring specific recognition included the following:

•	Women with disability
•	Children and young people with disability
•	Elderly persons with disability
•	People with severe and/or multiple disability
•	People with disability from racial, ethnic, linguistic and/or religious minorities
•	Indigenous persons with disability, and
•	People living in rural, remote and small island communities.

Participants re-iterated support from the 2004 consultation that, in the absence of a specific reference, multiple disadvantaged population groups would remain ‘invisible’ and be ignored in implementation measures, entrenching pre-existing disadvantage. It was also suggested that some specific population groups require additional and/or population group specific protections that result from the intersection of characteristics.

Consultation with representatives from Aboriginal and Torres Strait Islanders with disability networks strongly argued for the need for an interpretive article addressed the very serious human rights abuses experienced by this group.  It is proposed to incorporate a reference to indigenous persons with disability in the general interpretive article.

However, we also propose the following addition to this article to iterate the importance of recognition of the human rights of indigenous persons with disability:

States Parties to this convention shall recognise the specific vulnerability, and additional disadvantages faced by indigenous people with disability and shall take immediate and effective measures, including any special measures that may be required, to ensure their full and equal enjoyment of the rights set forth in this convention.

For the same reason, we also suggest reference to indigenous people with disability in the Preamble to the convention.  In this respect we propose the following new paragraph:

Recognising the history of abuse and neglect of the human rights of indigenous minorities with disability in many parts of the world, the cultural needs of indigenous persons with disability, and that realisation of the human rights of indigenous persons with disability will require specific action by those States with indigenous persons.

In recognition that there was also very strong support for a specific interpretive article on women with disability and on children with disability, one compromise might be to include those articles at 6 and 7 (please refer to Section 2 above) and to include an additional interpretative article for all other population groups.  

This article might be termed as follows:

Recognition of specific population groups

States Parties shall recognise the particular vulnerability and additional disadvantage of specific population groups of people with disability, including:

(a)	Elderly persons with disability
(b)	People with severe and/or multiple disability
(c)	People with disability from racial, ethnic, linguistic, and/or religious minority groups
(d)	People living in rural, remote and small island communities

State Parties shall take all necessary measures, including any special measures, to ensure for these groups the full and equal enjoyment of the rights set forth in this convention.