Introduction to Australian Government and Legal System
Australia by world standards is a wealthy nation, (ranked 8th in the world2) with a gross domestic product equivalent to $US37,564.67 per capita. Australia is also one of the world’s most developed countries, and is ranked second (behind Norway) in the United Nations Human Development Index.3
A pluralist democracy, Australia is recognised for its enduring political stability.4 It has a federal system with a central Commonwealth government and six states and three territories. Australia’s federal system of government is enshrined in the Australian Constitution and provides limited powers to the Commonwealth. The Australian Constitution contains a series of ‘enumerated powers’, which circumscribe the limits of Commonwealth legislative competence. The Commonwealth government has legislative responsibility as outlined in section 515 of the Constitution and in particular section 51(xxix) (the ‘external affairs’ power) which enlivens Australia’s obligations under human rights treaties.
It is under this external affairs power that the Commonwealth government can undertake international obligations and pass domestic legislation to give effect to those obligations. The Constitution does not incorporate a set of codified rights but is the source of six explicit and some implied rights. The explicit rights enshrined in the Constitution include the right to trial by jury, to vote and freedom of religion.6 The courts over time have established areas of implied constitutional limitations on government’s action. These areas of implied rights — or more correctly freedoms — include freedom of political communication.7 The Australian Constitution contains no provisions for, and makes no explicit reference to, disability or persons with disability.
As the Australian Constitution does not incorporate a statement of rights the source of human rights in Australia is through the external affairs power and the Federal Government’s signing and ratification of seven of the nine core human rights treaties.8 Australia does not have a constitutional Bill of Rights or legislative Human Rights Act9 and is currently the only common law country without some form of comprehensive legal protection of human rights.10
Those powers that are not enumerated in the Australian Constitution remain within the legislative competence of the states, which is plenary in nature and are limited only by what is necessary for “peace, order and good government” of the State.11 Australia also has three self-governing territories, each of which also has plenary power. However, the source of their self-government is Commonwealth legislation rather than constitutional power. In the self-governing territories the Commonwealth parliament retains the full power to legislate, and can override laws made by the territorial institutions, which it has done on rare occasions. Under the Federation, the criminal law, policing and the provision of health, education and social services, are principally the responsibility of the Australian State and Territory governments.
To address issues in relation to federalism the Council of Australian Governments (COAG) was formed as the key intergovernmental forum in Australia. COAG comprises the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government Association (ALGA). Established in 1992, the role of COAG is to initiate, develop and monitor the implementation of policy reforms that are of national significance and which require cooperative action by Australian governments.12
methodology
Organisation and Participation
This Civil Society Report on the Convention on the Rights of Persons with Disabilities (CRPD) was drafted by a Project Group comprised of representatives from seven leading disability organisations in Australia, with the aim being to assess Australia’s compliance with the CRPD from a Civil Society perspective.
The Coordinating Committee for the CRPD Civil Society Report project was comprised of the following organisations:
Australian Centre for Disability Law (formerly the NSW Disability Discrimination Legal Centre representing the National Association of Community Legal Centres);
People with Disability Australia; and
Queensland Advocacy Incorporated.
A Project Group was established in order to assist in steering the project. The Project Group consisted of representatives from the following organisations:
Australian Disability Rights Network and Redfern Legal Centre;
People with Disability Australia;
Queensland Advocacy Incorporated;
Australian Federation of Disability Organisations;
Australian Centre for Disability Law (formerly the NSW Disability Discrimination Legal Centre);
Disability Advocacy Network Australia;
Australian Human Rights Centre; and
First Peoples Disability Network Australia.
The role of the Project Group was to:
provide advice on the process for developing the Civil Society Report;
coordinate consultations at a State/Territory level;
assist with seeking funding for the development of the Civil Society Report and sending the NGO delegation to the UN;
provide direction to DLA Piper by providing information such as contacts, statistics, reports, etc; and
endorse the Civil Society Report.
The Project Group was supported in this task by the pro bono support of DLA Piper, who assisted in facilitating the consultations in each State and Territory in Australia, in addition to providing an initial draft of the Civil Society Report and ongoing support in finalising the report.
The specific role of DLA Piper in the project was to:
develop the project plan;
coordinate project group meetings;
develop consultation materials, including background information on the Convention on the Rights of Persons with Disabilities (CRPD), consultation workbook and program;
undertake consultations in conjunction with project group members, including organising the logistics and program for State and Territory consultations;
provide the initial draft of the Civil Society Report on the CRPD; and
provide ongoing support and complete follow-up activities on the Civil Society Report on the CRPD.
The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) also provided valuable assistance to the Project Group, providing support for the consultations that took place throughout Australia and for a consultant to redraft the report.
Each Coordinating Committee member contributed much time in developing the project, organising the project group and instructing DLA Piper. Each Project Group member contributed significantly to the preparation of consultation materials, co-facilitation of consultations throughout Australia, to the development of the website and drafting and editing the Civil Society Report.
The aims of the Civil Society Report were to:
reflect the views and lived experience of people with disability in Australia;
identify the extent to which people with disability in Australia currently enjoy the fundamental human rights and freedoms provided for in the CRPD;
identify the extent of the realisation of each article of the CRPD;
identify those matters preventing the full enjoyment by people with disability in Australia of the CRPD rights and freedoms;
promote the full realisation of the CRPD rights and freedoms; and
make recommendations for government action that will assist in the realisation of the CRPD rights and freedoms.
Considerations
In analysing Australia’s implementation of the CRPD, the Project Group took note of:
the lived experience of people with disability in Australia;
the implementation of new policies;
legislation translating political will into a legal framework;
program development translating both policies and legislation into practical change;
financial resource allocation;
the training of government personnel in CRPD rights;
the incorporation of persons with all types of disability from all socio-economic, religious and cultural backgrounds in all policy and legislative development; and
the inclusion of a gender analysis in the legislative, administrative and policy framework.
Process
From November to December 2009, community consultations were undertaken in the form of a listening tour. Project Group representatives travelled to capital cities in Australia and consulted with people with disability and their representative and advocacy organisations to discuss the CRPD and the lived experience of people with disability. Consultations were held in Sydney (10 November 2009), Melbourne (16 November 2009), Canberra (20 November 2009), Adelaide (25 November 2009), Perth (30 November 2009), Darwin (7 December 2009), Tasmania (3 December 2009) and Brisbane (12 December 2009).
In December 2009 a website was created to provide information on the CRPD Civil Society Report for both the disability sector and the general public, with the further intention being that it would encourage submissions, of which over 200 responses were made. The website was regularly updated throughout the project.13
During 2010 the project group invited disability representative, advocacy, and legal organizations to provide information about the lived experience of their members, clients and constituents with disability.
In April 2010, Project Group representatives met with First Peoples Disability Network (Australia) to discuss the CRPD and the lived experience of Aboriginal and Torres Strait Islander peoples with disability.
