UNCROPD Speech at the Australian National University

15 August 2007 Australian National University

I acknowledge the traditional custodians of the land we are meeting on today. I offer my respect to their elders and acknowledge their contribution to our region.

I acknowledge also the people with disabilities who have come to this meeting tonight and the contribution you have made and will make in the future to the topic we are discussing. I hope that we give you some information and some thoughts that make your journey worthwhile.

We are quite close here to the banks of the Ngambri Creek. Those of you familiar with the campus will know it as Sullivan’s Creek. It’s an interesting place this; a place that both in the past and present has been a source of shelter, companionship and food.

I sense that in this place we are surrounded by spirits of people who have gathered in this area over centuries to yarn about day-to-day things and at times about grand ideas.

Graeme has told you something of the Convention. It is a document full of ordinary words about day-to-day things and grand words – words that lead to ideas that give inspiration. This isn’t the occasion for me to take you in detail through the Convention. You can find the text on the website www.un.org or you can join the Human Rights Commission in some discussion groups to be held later this year.

As Graeme indicated, the Convention is based on fundamental human rights principles that have been recognised for many years. It does not develop new human rights. I want to stress that. It very simply elaborates on and applies existing human rights to the circumstances of people with disabilities. For some rights it does that in innovative ways – ways that involve looking at a familiar right – like the right to freedom of movement, the right to liberty of the person, and seeing it or describing it in a way that is meaningful in the context of the lives of people with disabilities.

There is a lengthy preamble, which serves to remind us of those fundamental human rights principles. There are interpretive articles – articles one and two – which set out the purpose of the Convention, describe the class of persons it applies to and defines key terms.

Articles three to nine of the Convention contain obligations that are relevant to the implementation of international treaties generally. Articles 10 to 30 set out the specific obligations – let me read some of the headings to give you the flavour of it.

Articles 31 – 40 are about implementation and monitoring. Articles 41 – 50 – they’re about the operational or machinery articles – that’s all the administrative stuff about the process of becoming a party, official languages and so on.

Is it going to make a difference to the lives of people with disabilities here in the ACT? Will those grand words translate to meaningful changes to day to day things for people with disabilities. I freely confess to being an optimist and I believe that it will – although it may be some time before we see or feel that clearly.

Graeme has told you what the Commonwealth Attorney-General has said. I can tell you that the ACT Chief Minister wrote to the Prime Minister in February/March this year before signature urging the Commonwealth to both sign and ratify the treaty. So our direction is set.

In the meanwhile – pre ratification – I think the relevance of the Convention to the ACT and also to Victoria is somewhat different than in other places. The Human Rights Act 2004 ACT sets out a number of the fundamental human rights principles I referred to earlier. It says that when interpreting Territory laws (and that also means in effect when working out how they are to be applied) an interpretation that is consistent with human rights is as far as possible to be preferred.

Section 7 of the Act makes it clear that this doesn’t mean just the human rights set out in the Act – the Act is not exhaustive of the rights an individual may have. The Act gives examples of other rights that apply and says that rights include rights under international conventions. So, we would say that in the ACT, notwithstanding that this Convention has not been ratified, our laws are to be interpreted and applied in a manner consistent with the human rights set out in this Convention now – that is subject always to reasonable limits that can be demonstrably justified in a free and democratic society.

It is this thought that creates my sense of optimism. We’ve had a long and tedious debate here about our Human Rights Act. It has been said that the Human Rights Act doesn’t make much difference to people’s lives on a day to day basis. It is a ‘dialogue’ model. It does not contain a direct right of action if a human right is breached.

While the latter is true, I can tell you that the Act does make a difference.

It sets out a clear human rights framework for the Executive, for policy makers, for administrators and for legislators to work in. It guides our choices – choices about what we do and how we do it. The framework helps clarify and develop our understanding of what is reasonable to expect in our free and democratic society – what is a reasonable limit and what is not.

We don’t have to go searching out the Great Charter or the Magna Carter or look for legal precedents developed over the centuries. We don’t have to make our heads ache thinking about High Court majority views and dissenting judgements to see what if any human rights apply here in the ACT – the framework is at our fingertips – we need only use it. I make it sound straightforward and of course, you will all know that there is usually an enormous gap between words and action.

Bridging that gap takes planning, thinking, designing – yarning. It can take a long time but I believe we can believe that this Convention, combined with our Human Rights Act, gives our ACT society sound footings for that bridge.

Speech delivered as one of a panel of three members at ANU in the Toyota Public Lecture Series on 15 August 2007. Commissioner Graeme Innes, HREOC and Mr Ian Trewhella, AM were the other speakers. Commissioner Innes’ speech can be found on the HREOC website www.humanrights.gov.au