A convention, sometimes referred to as a covenant or treaty, is a formal binding agreement between countries, or State Parties. The rights and responsibilities contained in international conventions, though not strictly binding within Australia, are significant and potentially persuasive in a variety of contexts. The Convention on the Rights of Persons with Disabilities will be particularly helpful for advocacy in relation to the NDIS.
The Act Objects also refer to a number of other international conventions. The instruments listed in the Act are significant in interpreting the NDIS legislation, and potentially persuasive when advocating for rights.
Convention on the Rights of Persons with Disabilities (CRPD)
The United Nations Convention on the Rights of Persons with Disabilities reflects the view that disability is an ordinary and accepted part of human diversity. The Convention recognises that socially constructed barriers disadvantage and hinder people with disabilities in fully enjoying the rights that each person should have by virtue of being human. Articles of the CRPD apply rights recognised in general human rights treaties to the context faced by people with disabilities. They provide for special measures or supports to enable all people with disabilities to access and exercise those rights.
CRPD rights are relevant in to the application of the NDIS because Australia ratified the Convention in 2008 and in so doing agreed to be bound by its terms within the international community. However, within Australia, International Convention obligations are only enforceable to the extent that they are incorporated into domestic law.
The first Object under the NDIS Act is to: “in conjunction with other laws, give effect to Australia’s obligations” under the CRPD. According to the Statement of Compatibility with Human Rights for the Bill of the NDIS Act, the placement of the Convention on the Rights of Persons with Disabilities “is designed to promote the status of the CRPD and emphasise its critical nature in the interpretation of the legislation”. Independent advocacy around the NDIS should therefore consider the CRPD as a potentially valuable resource for making and strengthening arguments to protect the rights of persons with disability in relation to the NDIS.
There are a range of resources to help understand and use the CRPD. Info
Other Instruments listed in the NDIS Act
One of the Objects of the Act is to, “in conjunction with other laws, give effect to certain obligations that Australia has as party to” a number of conventions:
- the International Covenant on Civil and Political Rights
- the International Covenant on Economic, Social and Cultural Rights
- the Convention on the Rights of the Child
- the Convention on the Elimination of All Forms of Discrimination Against Women
- the International Convention on the Elimination of All Forms of Racial Discrimination
These international human rights instruments are therefore particularly relevant to the interpretation of the Act and may be useful for independent advocacy. The CRPD generally reinforces the rights found in general conventions, and expresses them in a way that addresses a disability context. Advocates may like to look to these instruments to provide additional support for arguments based on CRPD rights.
Other human rights instruments that may also be useful for advocates to be aware of include:
- The Universal Declaration of Human Rights
- Th United Nations Declaration on the Rights of Indigenous Peoples
The ICCPR, in combination with the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights, is sometimes referred to as the “International Bill of Rights”. The ICCPR was adopted by the United Nations General Assembly in 1966 and came into force a decade later. It is widely accepted as a definitive statement of the civil and political rights of all human beings, including the right to life liberty, family and privacy; and freedom of speech, association and thought, conscience and religion and freedom from torture, cruel, inhuman treatment or punishment .
The ICESCR, in combination with the ICCPR and the Universal Declaration of Human Rights, is sometimes referred to as the “International Bill of Rights”. There is a common perception that the fulfilment of economic, social and cultural rights is less important than adherence to civil and political rights. This distinction has developed from the various demands placed on institutions and government. Civil and political rights are generally characterised as “negative rights” as they often concern freedom from interference, whereas economic, social and cultural rights often involve the provision of services and resources. Article 2 of ICESR contains the principle of “progressive realisation”, requiring steps to be taken by State Parties “to the maximum of its available resources, with a view to achieving progressively the full realisation of rights in the present covenant by all appropriate means”. Therefore, advocacy relying on ICESCR rights should take economic and resource constraints into account.
ICESCR rights includes the right to fair employment conditions, social security, protection of the family, an adequate standard of living, physical and mental health, education and involvement in cultural life.
All aspects of this Convention are relevant to children with disabilities however Articles 2 and 23 refer specifically to children with disabilities.
All aspects of the Convention are relevant to women with disabilities.
This Convention has particular significance for people with disabilities from cultural backgrounds that have traditionally been subject to discrimination on the basis of their race, colour or national origin.