Last updated 15 February 2019
People with disabilities have the same rights as everyone else, which includes being able to enforce their rights through legal and other remedies. Some of these rights are protected under international human rights law while others are also protected in domestic legislation.
International human rights law
Australia is a party to seven core human rights treaties. People with disabilities are entitled to all of the rights articulated in each of these conventions. However, the United Nations Convention on the Rights of Persons with Disabilities (Un-CRPD) provides a statement of rights that are specific to people with disability and enshrines a social model conception of people with disability. ‘Disability’ does not reside in the individual as the result of some impairment, but is the result of societal and environmental barriers.
While it is not legally enforceable domestically, it is nonetheless a valuable tool that can be used to ensure that people with disabilities have access to the same rights and opportunities as everybody else.
Australia ratified the Un-CRPD on 17 July 2008.
The UN-CRPD contains eight guiding principles. These are:
- respect for inherent dignity and individual autonomy including the freedom to make one’s own choices
- full and effective participation and inclusion in society
- respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
- equality of opportunity
- equality between men and women
- respect for evolving capacities of children with disabilities, and respect for the right of children with disabilities to preserve their identities.
International human rights complaints mechanism and the Optional Protocol to the UN-CRPD
Australians can make complaints to the Committee on the Rights of Persons with Disabilities about violations of their rights under the UN-CRPD. In order for a complaint to be admissible to the committee, the complainant must establish that they have exhausted all available domestic remedies and that they have been personally impacted by the violation (for more information about the complaints mechanism visit the Australian Government Attorney-General’s Department website).
Domestic protection of human rights
While not all of the rights articulated in international human rights law are enforceable in Australia, the right to be free from discrimination, based on disability is protected by both state and Commonwealth legislation.
The relevant legislation in Queensland is the Anti-Discrimination Act 1991 (Qld) and the relevant Commonwealth legislation is the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act).
The Disability Discrimination Act prohibits discrimination on the basis of disability in employment and in a variety of other circumstances including education. For the purposes of s 4(1) of that Act, ‘disability’ is defined to include ‘total or partial loss of the person’s bodily or mental functions’ and, as such, may include intellectual disability. Disability discrimination occurs where, because of a person’s disability, another person (the discriminator) treats or proposes to treat the person less favourably than a person without the disability.