That Australia withdraws its Interpretative Declaration in relation to Article 17.
That, in consultation with people with disability through their representative, advocacy and legal organisations, Australia conducts a comprehensive audit of laws, policies and administrative arrangements underpinning compulsory treatment with a view to:
introducing reforms to eliminate laws and practices that relate to compulsory treatment that inherently breach human rights;
work with people with disability and their representative and advocacy organisations to develop appropriate mechanisms and supports for any person, regardless of disability, who is at risk of causing harm to themselves or others; and
implement administrative arrangements that focus on supported decision making.
Australia’s Interpretative Declaration on Article 18
Australia made an Interpretative Declaration in respect of Article 18 when it ratified the CRPD:
Australia recognises the rights of persons with disability to liberty of movement, to freedom to choose their residence and to nationality, on an equal basis with others. Australia further declares its understanding that the Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, nor impact on Australia’s health requirements for non-nationals seeking to enter or remain in Australia, where these requirements are based on legitimate, objective and reasonable criteria.
The Interpretative Declaration preserves Australia’s current legislative and administrative approach to processing visa applications. The Migration Act 1958 (Cth) (Migration Act) and the Migration Regulations 1994 (Cth) (Migration Regulations) control the entry and stay in Australia, of non-citizens and prescribe the selection criteria and processes for all visa applications. The Disability Discrimination Act 1992 (Cth) (DDA) provides an exemption for certain provisions within the Migration Act, and subordinate legislation under this Act, and for the actions required by this legislation. This includes the health requirement contained in this legislation.
Almost all visa applicants must satisfy the health requirement in order to be granted a visa.308 Although the health requirement does not directly discriminate against people with disability, it is much more likely that people with disability will be unable to meet it. To meet the health requirement the applicant must:
... not have a disease or condition which would be likely to require health care or community services; meet the medical criteria for the provision of a community service, result in significant cost to the Australian community in the areas of health care and community services; or prejudice the access on an Australian citizen or permanent resident to health care or community services, regardless of whether the applicant would use those services.309
The health requirement is “unable to satisfy the equal protection obligation under Article 5 of the UN CRPD”.310 The rationale behind the DDA exemption is that if the Migration Act were not exempt, some of the criteria for assessing visa applications may be discriminatory under the DDA.311 In particular, without this exemption the stringent health requirements would not be compatible with the DDA.
The UN High Commissioner for Refugees (UNHCR) has expressed concern about the discriminatory effect the health requirement has on refugee and offshore humanitarian visa applications, commenting that:
“The present operation of the health requirement is discriminatory in effect and endangers a number of other human rights norms.” To that extent, Australia presently falls short of its international obligations.312
The Interpretative Declaration and the DDA exemption of aspects of the Migration Act are indicative of Australia’s “awareness of the dissonance between the CRPD and the health rules”,313 and the fact that the health requirement “can no longer be said to be based on ‘legitimate, objective and reasonable’ criteria”.314
Failure to Consider the Potential Contribution of People with Disability
The mandatory health requirement results in many people with disability, particularly children, being unreasonably denied an Australian visa. People with disability are more likely to fail the health requirement given the focus is exclusively on the perceived economic cost of the applicant’s ‘condition’ and the burden this will place on public health and community resources. There is no consideration of the economic and social contributions people with disability make to the Australian economy and community life.315
The mandatory health requirement has a significant negative impact on families that include children and adults with disability. All members of a family group will be denied visas on the basis that a family member with disability has failed the health requirement. Many families are forced to make a difficult decision to leave behind a family member in order to build a life in Australia. In cases involving humanitarian entrants, family members with disability will remain in extremely vulnerable situations, having also been displaced by war, persecution, or civil unrest, but unable to join their families in Australia.316
Case Study
Dr Moeller, a German migrant doctor, had been working in a Victorian country town for nearly three years as a much needed specialist physician. Despite his service and enormous contribution to the town’s population, he had twice earlier been refused permanent residency. His applications were refused because his son Lukas, aged 13, has Down syndrome, and was considered too much of a burden on taxpayers.317 In 2008, the Department of Immigration again refused the family permanent residency status and their appeal was rejected by the Migration Review Tribunal. However, in November 2008, following significant public pressure, the Minister for Immigration approved Dr Moeller’s application for ministerial intervention and granted his family permanent residency status.318
Mandatory HIV Testing
A HIV test is a mandatory part of the final health check for all prospective migrants, and to all off-shore applicants for refugee and humanitarian visas. If the applicant is HIV positive, then the cost assessment will very likely determine that the applicant does not meet the health requirement.319 People who are HIV positive represent the highest proportion of migration applicants who fail to meet the migration health requirement.320
The mandatory HIV/AIDS testing of offshore refugees prior to resettlement is of particular concern. Unlike on-shore refugees where the health requirement does not apply, an off-shore refugee who is found to have HIV will be unlikely to meet the health requirement and will not be granted a protection visa despite having a well-founded fear of persecution.
The policy to impose a mandatory HIV test to all permanent visa applicants and to generally refuse visas to people with HIV “adds a second layer of discrimination”.321 HIV does not represent a public health threat and consequently there is no rationale for mandatory HIV testing.322 The UN International Guidelines on HIV/AIDS and Human Rights state:
There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status…Therefore, any restrictions on these rights based on suspected or real HIV status alone, including HIV screening of international travellers, are discriminatory and cannot be justified by public health concerns.323
Case Study
Mr X had HIV and became too ill to support his family. He was recognised by UNHCR as a refugee, and his relatives who were all Australian citizens applied to sponsor him to Australia. Mr X had numerous close relatives in Australia, including his parents, siblings and children from a previous marriage. All were willing to provide financial and emotional support to care for him and his young family. Despite his circumstances and family sponsorship, his application was refused due to the health requirement.
UNHCR was required to seek a solution for Mr X in other resettlement countries and succeeded in obtaining urgent medical care and resettlement for him elsewhere. Mr X had to move to a country where he and his family had no other family support and few communal ties. His process of settlement and rebuilding of his life have been made correspondingly more difficult.324
All Australian governments have a role in providing different aspects of support to people with disability. These support systems have been found to be “broken”, fragmented and significantly underfunded.325 (See also Article 26) People with disability who are fortunate to receive supports may be restricted to the region, State or Territory they currently live in, as supports are often not portable outside the regions, States or Territories from which they are funded. If a person needs or chooses to move to another region, State or Territory, then supports, such as personal care, aids and equipment cannot be taken with the person. For example, in New South Wales, a person is made ineligible for the Attendant Care Program if they intend to move permanently interstate.326 This restricts or limits many people with disability to move freely within Australia.
Freedom to move freely within Australia has a significant adverse impact on Aboriginal and Torres Strait Islander people with disability, who may need or want to move within the traditional ‘boundaries’ or lands of different Aboriginal and Torres Strait Islander communities. For example, it is not uncommon for Aboriginal people with disability to be moving or wanting to move between Northern Territory, Western Australia and South Australia to visit community members. However, regional, State or Territory borders are often inconsistent and incompatible with traditional ‘boundaries’, and this imposes an additional barrier to an Aboriginal or Torres Strait Islander with disability to maintain their disability support to move freely as well as participate freely in cultural life.327 (See also Article 30)
Case Study
Jayne has a physical disability. She had great difficulties attempting to move interstate as her funding for personal care was not portable — her supports could not be transferred from New South Wales to South Australia. The SA disability service system also claimed they did not have the resources to support Jane. Jayne only managed to receive inadequate minimal assistance by taking the problem to the South Australian Minister for Disabilities. She waited ten months for her home to be assessed for modifications and seven months after that they still weren’t done.328
