Attorney General reply to open letter

The Attorney-General replied (9/8/2011, download here) to A4's open letter (18/6/2011, see http://a4.org.au/a4/node/375).

Our letter clearly identified concern and disappointment "about the ongoing refusal of Governments in Australia to protect people with ASD and their associates from discrimination". The Attorney-General's response dismisses our concern and disappointment saying:

"The Australian Government considers that all people with disability have the right to participate as fully as possible in community life, with dignity and comfort".

Then in the same paragraph, he says

The Government is progressing reforms in a number of areas.

This does not make sense. If the Government considers people with a disability already have the rights they need, then it would not need to progress reforms.

The Attorney-General refers to claims of other elements of government.

For example, the Attorney-General says COAG's National Disability Strategy "focuses on mainstreaming the rights of people with disability articulated in the United Nations Convention on the Rights of Persons with Disabilities" (UNCPRD). There are just two reference to "mainstream" in the UNCRPD. The first, in the preamble, is about issues, not rights: it emphasises "the importance of mainstreaming disability issues as an integral part of relevant strategies of sustainable development". The second, in Article 30, is "to encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels" (there are no classifications for autism/ASD in the paralympics so there may still be quite a way to go internationally on discrimination in sport).

Part of the National Disability Strategy refers to "the human rights imperative". It says "people with disability must be afforded the same rights as all other Australians".

How do people with a disability currently not have "the same rights as all other Australians"? And COAG may wish readers of their Strategy to infer "all other Australians" have significant or sufficient human rights. But Australia has no actual legal process that protects directly the human rights of its citizens (there may be indirect protection where an individual can quantify damages, though one would need enormous legal skill and massive good luck to succeed in court with a complaint against any government agency).

COAG may also infer that "the same rights as all other Australians" would be an adequate or complete collection of human rights for persons with a disability. If so, COAG's position is contrary the commonly (and internationally) recognised need for particular rights of people with a disability ... as described in the UNCRPD, Article 23 of the UN Convention on the Rights of the Child, the UN Declaration on the Rights of Mentally Retarded Persons, etc.

The Attorney-General mentions the Helping Children with Autism package and the Positive Partnerships program. Actually, Positive Partnerships is part of the Helping Children with Autism package.

These programs are not relevant: it is reasonable to expect that if they were effective then they would be mentioned in the Walker v Vic decision, but they were not.

The Attorney-General claims

As you are aware the Disability Discrimination Act 1992 (DDA) provides that it is unlawful for a person or organisation to discriminate against a person on the basis of disability in a range of areas, including education.

Our letter was about the specific cases of Purvis v NSW and the recent Walker v Vic. The Purvis decision is a clear precedent that protects discrimination against people with a disability in education, and probably much more generally. The Judge cited this decision in the Walker decision.

Next, the Attorney-General refers to the Disability Standards for Education 2005. He says they were developed in consultation with "disability groups" ... but autism/ASD groups were not consulted. He says the Standards are being reviewed, but as usual, autism/ASD groups have not been consulted (and unlike other disability groups, the Government does not contribute to a peak disability group for autism/ASD with the purpose of contributing to reviews such as this).

He says

The Standards are intended to give students with disability the same rights as other students. ... This includes the right to comparable access, services and facilities, and the right to participate in education and training without discrimination.

Again, students with a disability need different rights to other students because they have different needs. Clearly, the judge in Walker vs Vic interpreted the law to protect the discrimination that excluded Alex Walker from school. Alex Walker's education was not "without discrimination"; which shows the Education Standards do not protect students with ASD from discrimination. The Disability Standards for Education 2005 do not achieve their intended purpose in preventing discrimination against students with a disability.

Discrimination law is already quite "user-friendly" for governments agencies.

People with a disability would prefer the purpose to consolidating discrimination law was to create and protect human rights for people with a disability rather than making "anti-discrimination law more user-friendly for individuals, organisations and businesses".

The Attorney-General dismissed our concerns. The rest of the material in the response shows a disappointing failure to understand and recognise so many issues relating to the rights and needs of people with autism.

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