Proposed changes to draft text - Australia

Australian proposal – Structure*

Preamble

PART I
Article 1 - Purpose
Article 2 - General Principles
Article 3 - Definitions

PART II
{Article 3bis
Article 4bis - Specific Population Groups+
Article 4ter - Non-derogation from Existing Rights+}

{Article 4 - General Obligations
Article 7 - Equality and Non-discrimination
Article 4bis - Specific Population Groups
Article 5 - Promotion of Positive Attitudes
Article 4ter - Non-derogation from Existing Rights+}

PART III
Article 8 - Right to Life
Article 9 - Equal Recognition as a Person Before the Law
Article 10 - Liberty and Security of the Person
Article 11 - Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment
Article 12 - Freedom from Violence and Abuse
Article 13 - Freedom of Expression and Opinion, and Access to Information
Article 14 - Respect for Privacy, the Home and the Family
Article 18 - Participation in Political and Public Life

PART IV
Article 15 - Living Independently and Being Included in the Community
Article 17 - Education
Article 19 - Accessibility
Article 20 - Personal Mobility
Article 21 - Health and Rehabilitation
Article 22 - Right to Work

DETAIL OF PROPOSED STRUCTURE

Preamble

Part I: [interpretive provisions] Articles 1 (Purpose), 2 (General Principles), 3 (Definitions)

Part II: [general provisions] Articles 3bis, 4bis (Specific Population Groups), 4ter (Non-derogation from Existing Rights)

Articles 4 (General Obligations), 7 (Equality and Non-Discrimination), 4bis (Specific Population Groups), 5 (Positive Attitudes), and 4ter (Non-derogation from Existing Rights)

Part III: [civil and political rights] Articles 8 (Right to Life), 9 (Equal Recognition as a Person Before the Law), 10 (Liberty and Security of the Person), 11 (Freedom from Torture), 12 (Freedom from Violence and Abuse), 13 (Freedom of Expression and Opinion, and Access to Information), 14 (Respect for Privacy, the Home and Family), 18 (Participation in Political and Public Life)

Part IV: [economic, social and cultural rights] Articles 15, (Living Independently & Being Included in the Community), 16 (Children), 17 (Education), 19 (Accessibility), 20 (Personal Mobility), 21 (Health and Rehabilitation), 22 (Right to Work), 23 (Right to Social Security and Adequate Standard of Living), 24 (Participation in Cultural Life), 24ter (Situations of Emergency)

Part V: [monitoring and implementation] Articles 25 (Monitoring), 24bis (International Cooperation), and 6 (Statistics and Data Collection).

Australian proposal - Draft Article 3

Definitions of ‘disability’ and ‘associate’

‘disability’ means:

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;

‘associate’, in relation to a person, includes

a) a spouse of the person; and
b) another person who is living with the person on a genuine domestic basis; and
c) a relative of the person; and
d) a carer of, or assistant to, the person; and
e) another person who is in a business, sporting or recreational relationship with the person.

AUSTRALIA – PROPOSAL FOR NEW ARTICLE 4 ter

Article 4 ter
No Diminution from Existing Human Rights

1. In interpreting the human rights of people with disability, in no case shall rights set out in this convention derogate from rights set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

2. Nothing in this convention shall be taken to derogate from any national law, policy, or program that provides benefits in excess of those required by this convention.

3. States Parties to this convention shall not use this convention as a pretext to derogate from national laws, policies or programs that provide benefits in excess of those required by this convention.

Australian proposal - draft article 4bis – recognition of specific population groups

Recognition of specific population groups

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

women with disability
children and young persons with disability
elderly persons with disability
persons with severe and/or multiple disability
persons with disability from racial, ethnic, linguistic, and/or religious minority groups
indigenous persons with disability, and
persons living in rural, remote and small island communities.

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

Australia’s Proposal
ARTICLE 14: Respect for Privacy

Australia’s preferred formulation:

Persons with disabilities shall not be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour or reputation. Everyone shall have the right to protection of the law against such interference.

ARTICLE 14bis: Marriage and Family Relations

Australia’s preferred formulation:

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

(a) That persons with disabilities are not denied the equal opportunity to experience parenthood, have intimate relationships, and express their sexuality, in accordance with law;

(b) That the right of all persons with disabilities of a marriageable age to marry, in accordance with law, is recognised;

(d) That people with disabilities are not discriminated against with respect to guardianship, wardship, trusteeship and adoption of children, where this is provided for in national legislation. The best interests of the child shall be the paramount consideration in all cases;

(e) That no child shall be separated from his or her parents on the basis of the disability of either the child or one or both of the parents, except in accordance with appropriate law and where it is in the best interests of the child.

AUSTRALIA – PROPOSAL IN INFORMAL – 5.1(c)

c) Promote the capabilities and contributions of all persons with disabilities, as members of society sharing the same rights and fundamental freedoms as all others.

POSSIBLE STRUCTURE FOR A COMPRESSED ARTICLE 5

1. States Parties undertake, by appropriate and active means, to:

a) Raise awareness throughout society of disability and persons with disabilities, including their potential and contribution to society, and foster respect for their rights through measures such as public awareness campaigns and programs of awareness for all children from an early age and throughout their education.

b) Promote the capabilities and contributions of all persons with disabilities, as members of society sharing the same rights and fundamental freedoms as all others, and encourage the media to portray positive images of people with disabilities consistent with this convention.

c) Combat stereotypes, negative cultural practices and prejudices about persons with disabilities.