NGO Comments on the draft text
Draft article 14 - RESPECT FOR PRIVACY, THE HOME AND THE FAMILY

Intervention by (Australian) National Association of Community Legal Centres, People with Disability Australia Incorporated, Australian Federation of Disability Organisations

Mr Chairman:

Thank you for this opportunity to address the Ad Hoc Committee.

We support in principle the content of draft article 14 but believe that the subject matter should be divided into two separate articles. One article should deal with privacy and the other, personal relationships.

With respect to privacy we recommend two amendments to paragraph 1:

• First, as footnote 45 suggests, the term ‘correspondence’ should be replaced with the more encompassing term ‘communications;’

• Second, the term ‘medical records’ should be broadened to ‘personal information, including medical records.’ This would ensure that other personal information that cannot be characterized as medical information would also receive privacy protection.

With respect to the home and family we recommend the following amendments:

• First the scope of the article ought to be broadened to encompass all personal relationships, including family relationships, but not limited to them. In this respect, it is our view that the title of the article should also be amended to refer to “personal relationships,” and that the term “marriage and family relationships” paragraph 2 ought to be amended to read “personal relationships, including marriage and family relationships.”

• We believe this convention must contain an explicit prohibition on the sterilization of children and adults with disability for non-therapeutic purposes (by “non-therapeutic” we mean sterilization other than that necessary for therapeutic purposes to save life or avoid serious illness). Non-therapeutic sterilization, whether ‘forced’ or not, is a violation of fundamental human rights. It is not sufficient to provide protection against forced sterilization, as sterilization of children most often occurs at the request of a parent, as guardian of the child, rather than as a result of State action. In this respect it is ‘voluntary’ rather than coerced. The prohibition on non-therapeutic sterilization must therefore also encompass voluntary conduct by parents and others seeking sterilization of their children. This prohibition might be located in 12 as suggested by some delegations yesterday or article 14.

• The second sentence of sub-paragraph (d) is applicable to both sub-paragraph (d) and (e), and is perhaps of greater significance to sub-paragraph (e). We therefore recommend that this sentence is either relocated to the end of paragraph (e) – which would then encompass (d) as it refers to parents – or established as a sub-paragraph standing alone. We also recommend that the phrase ‘ on an equal basis with others’ is inserted after ‘the rights of persons with disabilities’ to make it clear on what basis this right is to be enjoyed. This is consistent with the approach taken in sub-paragraphs (a) and (c).

• We recommend the deletion of the term ‘against their will’ in the first sentence of paragraph (e). It is not clear whether the term applies to the child or to the parent, or both. If it applies to the child, we are concerned that it may result in circumstances where children can be removed voluntarily without appropriate procedural safeguards, including judicial review.

• We strongly urge against the insertion of the word ‘solely’ in subparagraph (e) as suggested by footnote 50. Disability should never be a justification for the separation of children from their parents – whether it is the child or parent, or both, who are disabled. Where other factors are involved in the decision to separate children, those factors should be the only basis for the separation. There is a risk of creating a loophole that would permit authorities to separate children from parents with disability by relying on a secondary reason that may not in itself be sufficient justification for the separation.

• Finally, we strongly urge the inclusion of a new sub-paragraph guaranteeing children and parents access to legal aid in relation to these rights.

Thank you for the opportunity to make this intervention.