Locally, the Victorian state government had earlier in the year passed the Charter of Human Rights and Responsibilities Act 2006, which came into effect on January 1, 2007. This fortuitous coincidence gives Victoria a unique opportunity to demonstrate leadership, not only nationally but internationally, in the recognition and protection of the rights of people with disabilities.

• Convention on the Elimination of Racial Discrimination (CERD), 1965

• International Covenant on Civil and Political Rights (ICCPR), 1966

• International Covenant on Economic, Social and Cultural Rights (ICESCR),1966

• Convention on the Elimination of Discrimination against Women (CEDAW), 1979

• Convention Against Torture (CAT), 1984

• Convention on the Rights of the Child (CRC), 1989

• International Convention on the Protection of the Rights of All Migrant

• Workers and Members of Their Families (ICRMW), 1990

The need for a special convention for people with disabilities follows conventions like CERD, CEDAW and CRC by recognising that more general treaties had failed to protect some people from a particular kind of human rights abuse, or to protect the human rights of particular populations. As Kofi Annan observed, “On paper, they have enjoyed the same rights as others; in real life they have often been relegated to the margins and denied the opportunities that others take for granted.”

The Convention mandates that people with disabilities are entitled to the same rights as all other citizens. It does not, however, create any new human rights for people with disabilities. Rather, an underlying principle throughout the Convention is the prohibition of any form of discrimination on the basis of disability. It therefore enshrines the right to self determination equal to other citizens; the right to equal access to liberty, justice, education, work, health services, and the built environment; and the right to be protected from abuse and violence and the right to refuse medical treatment equal to other citizens.

Of particular importance for people with disabilities is Article 12 of the Convention on the right to “Equal Recognition Before the Law”, and in particular that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” (Article 12.2). This means that any limitation of legal capacity based on a person’s disability is now recognised as discrimination and is prohibited by the Convention.

The significance of this right can be illustrated by looking at Article 25 on Health, which enshrines the right to health care “on the basis of free and informed consent”. Together with Article 12, this means that any limitation on a person’s right to refuse medical treatment based on their disability is also recognised as discrimination and prohibited by the Convention.

The Convention does not, however, become legally binding international law until twenty countries ratify it, which is anticipated before the end of 2007. Once this milestone is reached, countries that have ratified the Convention (as Australia is expected to do) are obliged to implement the Convention by amending or repealing any domestic laws that contravene it. This obligation is legally binding under international law and includes the requirement for all states under a federal system of government to also amend or repeal its laws to conform to the Convention.

Meanwhile, the new Victorian Charter of Human Rights and Responsibilities Act 2006 – which came into effect on January 1 2007, but allows one year for a review all state legislation prior to it taking full effect on January 1, 2008 – presents a golden opportunity for Victoria to play a leading role in the implementation of the Convention in Australia.

Like the Convention, the Charter is based on existing international human rights principles, though with special emphasis on the International Covenant on Civil and Political Rights (ICCPR). As with the Convention, of particular importance to people with disabilities is Section 8 of the Charter on “Recognition and Equality Before the Law”, which states that:

• Every person has the right to recognition as a person before the law.

• Every person has the right to enjoy his or her human rights without discrimination.

• Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

The significance of these rights can be illustrated by again looking at them in conjunction with another section of the Charter, but this time also illustrating the need for major reform (or the repeal) of current Victorian law. Section 10 of the Charter on “Protection from Torture and Cruel, Inhuman or Degrading Treatment” states in sub-section (c) that a “person must not be subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.” Victoria’s current Mental Health Act (a) discriminates against people on the basis of disability in order to (b) deny them equal recognition before the law, and (c) for the express purpose of imposing medical treatment without consent. This puts Victoria’s Mental Health Act in serious violation of both the Convention and the Charter.

Despite this apparent consistency between the Convention and Victoria’s Charter, there are concerns that possible loopholes in the Charter will be used to discriminate against people with disabilities by limiting their rights in ways that would contravene the Convention. It would be a great shame on Victoria if this was allowed to occur in the same year that such discrimination becomes explicitly prohibited under international law through the UN Convention on the Rights of Persons with Disabilities.