Paper 3. Disability discrimination law and the Asian and Pacific region

Transcription

1 Paper 3 Disability discrimination law and the Asian and Pacific region Andrew Byrnes Professor of Law Australian Human Rights Centre Faculty of Law, University of New South Wales Sydney, Australia 1

2 The designations employed and the presentation of the material in this paper do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The opinions, figures and estimates set forth in this paper are the responsibility of the author(s), and should not necessarily be considered as reflecting the views or carrying the endorsement of the United Nations. The mention of firm names and commercial products does not imply the endorsement of the United Nations. 2

3 Contents 3. Disability discrimination law and the Asian and Pacific region 3.1 Introduction The Convention on the Rights of Persons with Disabilities and national legislation Obligations to take legislative measures Need for a comprehensive review of existing legislation by a State party Requirement of consultation with persons with disabilities and organizations of persons with disabilities The CRPD provides a floor, and is not a ceiling for legal protection and promotion of the equality of persons with disabilities Disability, discrimination and the law models and lessons learnt Types of legislative measures required to implement the CRPD Disability discrimination laws differing approaches Terminology Examples of disability legislation from the region and beyond Rights-based legislative approaches and other approaches Explicit rights-based legislation Legislation which combines rights provisions with programmatic provisions What should disability discrimination legislation contain? Content of the legislation Implementation, enforcement and monitoring mechanisms Specific issues Definitions of disability and persons with disabilities Defining discrimination Reasonable accommodation Conclusion References

4 ABBREVIATIONS ADA CRPD HKEOC Americans with Disabilities Act Convention on the Rights of Persons with Disabilities Hong Kong Equal Opportunities Commission 4

5 3.1 Introduction 1. Over the last decade or so there has been increasing engagement by Governments and civil society in the Asian and Pacific region, as well as elsewhere, contributing to the advancement of persons with disabilities and their full inclusion in the societies in which they live. Persons with disabilities and organizations of persons with disabilities have been the drivers of these developments and critical participants in them. These advances have been manifested in the adoption of instruments such as the United Nations Standard Rules for the Equalization of Opportunities for Persons with Disabilities, by initiatives such as the Asian and Pacific Decades of Persons with Disabilities, and , and the programmatic approach adopted in the Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific in 2002, and its renewal in 2007 in the form of Biwako Plus Five: Further Efforts Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific. As a result of these developments, many Governments and disability activists have focused on the role of law in promoting equality of persons with disabilities. They have sought not only to identify and amend or repeal those laws which embody discrimination and impede the full and equal participation by persons with disabilities in the life of their communities, but have also sought to develop laws which positively state a right to equality and non-discrimination. In some cases these laws also promote or mandate the taking of positive measures to ensure a greater level of participation by persons with disabilities in various aspects of civil, political, economic, social and cultural life, and establish new institutions (or empower existing ones) to undertake an implementation or monitoring role in relation to this legislation. 2. The drafting and adoption in 2006 of the Convention on the Rights of Persons with Disabilities (CRPD), its ratification by some States in the region and its likely ratification by many others in the coming years, has also aroused interest in the most effective legislative and institutional arrangements to promote the equality of persons with disabilities. The CRPD represents in many respects the latest thinking on the protection and promotion of the human rights of persons with disabilities, and imposes wide-ranging obligations (including with respect to legislative measures) on States which become parties to it. Other States that are not yet parties to the CRPD may also be guided by it in the adoption of legislative and policy measures in relation to disability, given that it reflects many of the developments in instruments such as the Standard Rules and the Biwako Millennium Framework documents, which have been broadly endorsed within the region. Accordingly, any discussion of the legislative framework that is necessary or appropriate for advancing the human rights of persons with disabilities must take place against the background of the CRPD. 3. The purposes of this paper are: To provide an overview of the types of legislative measures that the CRPD requires States parties to take in order to give effect to it; 5

6 To provide an overview of the different models of legislation relating to disability and to identify insights from the experience of disability discrimination legislation in a number of countries; To provide an overview of some of the important developments in relation to disability discrimination legislation and similar legislation in Asia and the Pacific; To propose a number of elements that policymakers, legislators and civil society should take into account in their efforts to formulate, adapt and implement laws intended to protect and advance the human rights of persons with disabilities in a manner consistent with the policy and provisions of the CRPD; and To examine how the CRPD and legislation in the region and elsewhere deals with a number of concepts key to effective disability discrimination legislation the definitions of disability, persons with disabilities, discrimination on the ground of disability and reasonable accommodation The Convention on the Rights of Persons with Disabilities and national legislation 4. On 13 December 2006 the United Nations General Assembly adopted the CRPD and an Optional Protocol to the CRPD. The CRPD and its Optional Protocol both entered into force on 3 May As of 1 January 2010, 77 States had ratified or acceded to the CRPD and 48 States had ratified or acceded to the Optional Protocol. Member or Associate Member States of ESCAP which had ratified the CRPD as of that date included Azerbaijan, Australia, Bangladesh, China, Cook Islands, India, Iran (Islamic Republic of), Mongolia, New Zealand, Philippines, Republic of Korea, Thailand, Turkmenistan, the United Kingdom of Great Britain and Northern Ireland and Vanuatu. Many other members of ESCAP have signed the CRPD and many of these are likely to ratify it in the near future. By 5 April 2010 only six members or associate members of ESCAP (Azerbaijan, Australia, Bangladesh, Cooks Islands, Mongolia and Nepal) had become parties to the Optional Protocol; a number of other member countries have signed the Optional Protocol (including Cambodia, France, Kazakhstan, Nepal and Solomon Islands), while others are likely to accede to it soon (for example, Australia). In November 2008, the States parties to the CRPD met to elect twelve members of the Committee on the Rights of Persons with Disabilities; the Committee held its first session in Geneva from 23 to 27 February 2009 and its second session from 19 to 23 October 2009, with its third session held from 22 to 26 February Obligations to take legislative measures 5. The adoption of legislative measures to ensure the equal enjoyment of human rights and fundamental freedoms by persons with disabilities is central to the framework of the CRPD. The CRPD requires a number of specific legislative steps to be taken and in many cases legislative measures will also be required as some of the necessary or appropriate measures the CRPD require States parties to adopt to 6

7 fulfill their obligations under the treaty. 6. Articles 4 and 5 of the CRPD contain the overarching general obligations requiring the adoption of legislative measures: General obligations 1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities (article 4, emphasis added by the author). Equality and non-discrimination 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds... (article 5, emphasis added by the author). 7. The upshot of these general provisions is that there should be a legislative (if not a constitutional) prohibition of discrimination on the ground of disability and a legislative guarantee of equality, as well as effective legal and practical sanctions to respond to cases in which such discrimination or denial of equality is alleged. 8. In addition to these general references, the CRPD also contains a number of specific references to the need for legal guarantees of particular rights. For example, article 15(2) requires States parties to take all effective legislative and other measures to ensure persons with disabilities are not subject to torture or other forms of cruel, inhuman or degrading treatment. Similarly, article 16(1) requires States parties to take, inter alia, all appropriate legislative measures to protect persons with disabilities from exploitation, violence and abuse, while article 16(4) requires States parties to put in place effective legislation and policies, including women- and child-focused legislation to ensure the proper identification, investigation and prosecution of exploitation, violence and abuse against persons with disabilities. Article 22(1) stipulates that persons with disabilities have the right to protection of the law against interferences or attacks on their privacy, family, home, or correspondence or other types of communication or unlawful attacks on [their] honour or reputation. Article 27(1) requires States parties to safeguard and promote the right to work by taking appropriate steps, including through legislation to prohibit discrimination on the basis of disability in relation to 7

8 employment and to protect the rights of persons with disabilities to just and favourable conditions of work including protection from harassment and the redress of grievances (article 27(2)). 9. It is also clear from the provisions of a number of other articles of the CRPD that legal protection of specific rights is required. For example, the guarantee in article 12 that persons with disabilities have the rights to recognition as persons before the law (article 12(1)) and to enjoy legal capacity on an equal basis with others (article 12(2)), and the requirement that any measures relating to the exercise of legal capacity are subject to review by a competent, independent and impartial authority or judicial body (article 12(4)), can only be effectively guaranteed if embodied in law. 10. Even in the case of those articles which make no specific reference to the need for legislative measures, such measures will often be required, whether because the overarching obligations in articles 4 and 5 apply to all substantive rights, or because legislation will be either necessary or appropriate to ensure the full enjoyment of the rights guaranteed by a particular article. For example, article 4(1)(d) requires a State party [t]o refrain from engaging in any act or practice that is inconsistent with the Convention and to ensure that public authorities and institutions act in conformity with it and [t]o take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise (article 4(1)(e)). Both of these obligations can only be carried out with the support of legislation. Similarly, given that there is no specific reference to legislative measures in article 24 of the CRPD dealing with the right to education, legislative measures would be required in order to carry out a State party s obligations under this article Need for a comprehensive review of existing legislation by a State party 11. It follows both from articles 4(1)(a) and (b) of the CRPD and from the obligation of a State party to report regularly under article 35 on progress made in implementing the CRPD, that a comprehensive review of the position under existing legislation is required once a State has become a party to the CRPD (if this has not already been done beforehand). This should have as its primary goals the identification and amendment or repeal of provisions which are inconsistent with the rights in the CRPD, and the introduction of new legislation to cover areas that are not adequately covered under existing law, or to provide remedies for violations of those rights Requirement of consultation with persons with disabilities and organizations of persons with disabilities 12. A central feature of the CRPD is its insistence that persons with disabilities should be involved in all forms of public decision-making, including but not limited to issues of disability. Article 4(3) requires a State party to closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations, [i]n the development and implementation of legislation and policies to implement the present Convention, and in other decision- 8

9 making processes concerning issues relating to persons with disabilities. Accordingly, the review of existing legislation and the elaboration of new legislation as a consequence of ratification of or accession to the CRPD should be undertaken with the involvement of persons with disabilities and organizations of persons with disabilities The CRPD provides a floor, and is not a ceiling for legal protection and promotion of the equality of persons with disabilities 13. When considering whether existing legislation requires amendment or supplementation in the light of a State party s obligations under the CRPD, it should also be kept in mind that the CRPD sets out a minimum standard, and is not intended (and should not be taken) as an upper limit on the protections afforded to persons with disabilities. Given the nature of the compromises inherent in the drafting of international Conventions, the final text of a treaty often reflects a least common denominator, and this is so in a number of respects with the CRPD (for example, the definition of disability, or some of the obligations of States parties with respect to private actors). Article 4(4) of the CRPD makes it clear that it is not intended to undermine higher standards that exist under national law or other treaties, and should not be invoked to limit those rights: Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent. 14. Accordingly, States parties are free to adopt higher standards or more generous protections under their national law indeed in many cases this may be necessary if persons with disabilities are to enjoy their rights fully and on an equal basis with others. In cases where States are parties to other international treaties which impose higher standards than the CRPD, they will of course be bound to fulfill those more demanding obligations Disability, discrimination and the law models and lessons learnt Types of legislative measures required to implement the CRPD 15. The CRPD recognizes that the achievement of the goal of full and equal enjoyment of the human rights of persons with disabilities requires a comprehensive approach involving legislative measures and the adoption of appropriate policies and programmes. So far as its approach to legislative measures is concerned, the CRPD recognizes that the full enjoyment of human rights by persons with disabilities must be promoted through a variety of legal provisions and in differing legal contexts; that there is a need for effective institutions with a specific mandate to implement and monitor 9

10 implementation of the law; that legal provisions must be supplemented by appropriate processes of decision-making, appropriate policies, programmes and practices. The focus of this paper is on legislation which articulates and seeks to ensure the enforcement of rights Disability discrimination laws differing approaches 16. In her comparative global study of disability discrimination law, Theresia Degener noted that States have adopted a variety of approaches in legislation addressing disability (Degener 2005, p. 87). She identified a number of ways in which States had legislated to make discrimination unlawful and to provide protection for persons with disabilities, including: Criminal law prohibitions of discrimination against persons with disabilities; Constitutional protections of equality and non-discrimination, whether these be general guarantees or disability-specific guarantees; Anti-discrimination or civil rights laws covering a range of areas of social life, and either protecting against disability discrimination only or against a range of different forms of discrimination (of which disability is one); and Laws which provide for positive action or affirmative action in relation to persons with disabilities. 17. In some cases, legislation contains a mix of these different types of measures, as well as other implementation or enforcement measures. There are, of course, many other laws which are necessary to address the inequality faced by persons with disabilities for example, detailed building regulations to ensure accessibility; laws and policies relating to the administration of educational establishments; and laws establishing systems of social support and social security. While equality and non-discrimination laws are an important element of the legislative support for efforts to ensure the enjoyment of equality by persons with disabilities, they are just a component of a broader strategy of law, policies and practice. However, the primary focus of this paper is on laws which provide guarantees of the right to equality or non-discrimination on the ground of disability (or which set forth guarantees of the enjoyment of human rights without discrimination on the ground of disability), and which confer an individual right on persons with disabilities to seek legal or other appropriate vindication of those rights. 18. While much can be learnt from the experience of anti-discrimination laws in other countries, it is important to keep in mind that legislation which draws on overseas models will normally need to be adapted to the existing laws, legal traditions and legal and administrative institutions of a different national context, if that legislation is to be effective in those different circumstances. The experience of other States may provide important lessons about which approaches are more effective than others and indicate problems that might be avoided. The CRPD itself provides additional guidance as to the content and scope of legislation addressing disability discrimination and the emerging experiences of other States in implementing its provisions can also be instructive. 10

11 Terminology 19. In this paper, the following terms are used to describe a number of types of legislative provision that appear in national legislation relating to disability. While there is sometimes overlap between these types of legislative schemes, they provide a useful framework for contrasting different approaches to realizing the rights of persons with disabilities in the light of the requirements of the CRPD. The definitions of disability and persons with disabilities may vary significantly between the different types of legislation, even in the same jurisdiction. 20. Entitlements or benefits legislation: This term refers to legislation embodying a scheme for the allocation of financial or other benefits to persons with disabilities. These might include, for example, legislative schemes providing for the payment of disability pensions or workers compensation entitlements, or veterans entitlements legislation. Central to the operation of these legislative schemes which often involve the assessment of varying levels of disability is the particular statutory definition of disability, as this is the basis of a person s eligibility for receiving the benefits provided for under the legislation. 21. Programmatic legislation: This term refers to legislation which requires the State to work towards particular goals or to adopt specific measures to advance the equality of persons with disabilities, but which does not explicitly confer rights on individuals and which would not normally provide an affected individual with the right to seek an individual remedy for failure by the State to carry out its obligations. An example of this approach is the Persons with Disability Welfare Act 2001 of Bangladesh (Bangladesh 2001)(currently being revised). The Act sets out broad policy goals in a number of fields, including the prevention, identification and treatment of disability; education and the provision of rehabilitation and employment opportunities for persons with disabilities; the promotion of accessible transport and public buildings and health care; participation in cultural life and leisure; social security and organizations of persons with disabilities. However, these are expressed as duties of the State, and the Act does not explicitly confer on individuals an enforceable right to equality or the right to be free from discrimination on the basis of disability in these areas. 22. Rights-based legislation: This term refers to legislation which explicitly guarantees the rights of persons with disabilities to equality or to be free from discrimination, or which confers or affirms in general terms the human rights and fundamental freedoms of persons with disabilities. Under such legislation a person who is aggrieved by an action which infringes these rights has the entitlement to seek a remedy for the alleged violation. Rights-based legislation may take a number of different forms; this paper distinguishes between disability discrimination legislation and human rights legislation. 23. There are a number of types of legislation which can be described as disability discrimination law. Indeed, any legislation that contains provisions which are intended to prohibit or to eradicate discriminatory policies or practices, or which provide benefits or other forms of support or the adoption of other measures to ensure the enjoyment of 11

12 substantive equality by persons with disabilities might be so described. However, the term disability discrimination legislation as used in this paper refers to those statutes which provide that it is unlawful to discriminate against a person on the basis of disability in specified fields of social activity examples are the discrimination legislation from jurisdictions such as Australia, Hong Kong, China and the United Kingdom of Great Britain and Northern Ireland. The term human rights or equality legislation is used to refer to legislation which provides protections in the form of positive statements of the rights of persons with disabilities to enjoy fundamental human rights and fundamental freedoms without discrimination an example is the legislation of the Republic of Korea Lessons from experiences with disability discrimination legislation 24. This section identifies some of the lessons that can be derived from the experiences of countries with a long-term experience of disability discrimination or equality legislation. There are relatively few countries in Asia and the Pacific with extensive and well-documented experience of the operation of disability discrimination legislation Australia, Hong Kong, China, India, New Zealand and Philippines count among those with the most extensive experience of rights-based legislative approaches. 25. The following insights drawn from experiences with disability discrimination legislation in a number of jurisdictions may be useful for those with the responsibility for fashioning or reviewing such legislation generally and in the specific context of the CRPD: Legal regulation of disability discrimination and the promotion of equality for persons with disabilities must go beyond disability discrimination laws and also include appropriate laws and regulations in other legal and regulatory frameworks (for example, building regulations, transport regulations, telecommunications rules) equality can only be achieved by a combination of legislative guarantees of the fundamental principle of equality with detailed specifications in particular sectors; Excessive complexity in definitions and procedures should be avoided; When formulating disability discrimination or equality law, a traditional equality or non-discrimination model which mandates equal treatment of similarly situated persons should be used with care; any guarantee of equality must be formulated so as to take into account the fact that very often persons with disabilities must be treated differently in order for them to be treated equally and thereby given the same opportunities as others (for example, by reasonable adjustment to the workplace or working conditions) a substantive equality approach must inform legislative guarantees and their interpretation; Disability discrimination or equality legislation must cover not only direct (or disparate treatment) discrimination on the basis of disability, but also indirect (or disparate impact discrimination), where apparently neutral practices 12

13 disproportionately and unreasonably exclude persons with disabilities from equal access to opportunities; Any law must provide effective remedies for individuals who have had their rights denied on account of disability, as well as providing for procedures that can contribute to bringing about systemic change; While an individual complaint-based mechanism can be useful for redressing individual wrongs, it is not in itself sufficient for bringing about systemic change in many areas; Effective institutions must be set up, or existing institutions mandated and resourced, to publicize, to help implement and to monitor implementation of any such law, and these bodies should also have the right to take up issues and institute investigations or inquiries on their own motion; Access to affordable and readily available procedures for the consideration of complaints of discrimination is an important component of effective antidiscrimination legislative schemes; and A criminal law model of enforcement of basic anti-discrimination provisions does not tend to be a very effective means for providing individual remedies or bringing about systemic change, whether in the area of disability or in other areas. 3.4 Examples of disability legislation from the region and beyond 26. A significant number of countries in the ESCAP region have adopted legislative enactments dealing with issues of disability. These laws vary considerably in their underlying conceptual framework, purposes and scope. Some of them are directed to establishing a policy and institutional framework for the prevention of disability, for promoting rehabilitation, for ensuring access to educational opportunities or to enhancing employment opportunities for persons with disabilities, or for ensuring access to transport services and the built environment. Others are explicitly rights-based or non-discrimination legislation, providing enforceable rights to equality or guarantees against discrimination on the ground of disability generally or in specific areas; some of these are quite limited in their coverage (for example, providing protection only in one or two areas such as employment or education), while others are broad in their application. 27. When considering what legislative measures should be adopted by a State in order to implement the CRPD, caution should be exercised in looking to existing legislation as appropriate models. Although many of these laws may be consistent with CRPD obligations, they were for the most part not drafted in the light of the standards set out in the CRPD; indeed, some were drafted many years before the drafting of the CRPD began. The legislative schemes which have been in place for longer periods and which are thus not based on the CRPD will need to be reviewed in the light of its 13

14 provisions. By contrast some more recent examples of disability discrimination legislation in the region have been drafted taking into account the provisions of the CRPD (in some cases the draft text as it existed when the legislation was formulated, in other cases the final text of the treaty), as well as drawing on legislation of other jurisdictions and adapting this as appropriate to local circumstances. Even legislation drafted in recent years may not fully give effect to the provisions of the CRPD, notwithstanding the fact that this legislation has been drafted against the background of the treaty. Accordingly, some care should be taken in assuming that existing legislative approaches will necessarily fully implement a State party s obligations under the CRPD; careful regard should be had to the treaty s provisions in drafting new legislation or reviewing (even recently formulated) existing legislation. 28. The review below is not a comprehensive examination of the legislation that exists in particular countries since many countries have more than one piece of legislation dealing with issues of disability. Rather it describes the legislation in selected countries which appears to embody or include in part a rights-based approach, or is the major piece of disability rights or equality legislation in a particular jurisdiction. The paper does not seek to give an overall description of legislation addressing disability issues in the selected countries. Nor does it discuss the constitutional protections of equality and non-discrimination on the ground of disability that exist under the constitutions of many countries in the region; in a number of countries these provide significant, judicially enforceable guarantees Rights-based legislative approaches and other approaches 29. The CRPD embodies a rights-based approach to pursuing equality for persons with disabilities, and anti-discrimination legislation to implement it should also reflect that approach. This means that it should recognize the rights of individuals to substantive equality and non-discrimination, impose legal duties on the State and others to afford them that treatment and provide accessible remedies for individual and systemic violations of those rights. While some legislation in the region does adopt this approach, other laws adopt quite different approaches. Depending on the particular legal context, a full understanding of the import and effect of a given law may also require consideration of interpretations of the law by courts or by administrative agencies or other public bodies, or of relevant doctrine or commentary on the legislation. 30. In some cases it is clear that the legislation confers a right on individuals, to be enforced either through procedures established by the statute or under the standard procedures for the enforcement of statutory rights. For example, the Hong Kong Disability Discrimination Ordinance effectively provides a right not to be discriminated against on the ground of disability, by prohibiting such discrimination and providing an affected person with a channel for complaining about alleged discrimination (Hong Kong, China 1995). Individuals alleging such discrimination may lodge complaints with the Hong Kong Equal Opportunities Commission (HKEOC), one of whose roles is seeking to resolve such complaints, and, ultimately, before the courts, or in certain circumstances may lodge complaints directly with the courts. 14

15 31. In other cases, it is not clear from the wording of the statute whether the legislation does in fact create or recognize the right of individuals or groups not to be discriminated against on the ground of disability or to ensure the equal enjoyment of rights, or whether it merely imposes a broad, aspirational duty on State authorities or others. In some cases, such as the Indian Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, some or all of the provisions of the law are directed to public authorities or other entities, requiring them to take particular steps for example, the adoption of employment quotas, the institution of vocational training, or the establishment of rehabilitation services (India 1995). While such duties are a necessary part of realizing many of the rights, it is not clear under some laws whether any rights enforceable at the instance of the individual are created at all, or whether the supervision of the fulfillment of the duties imposed by the statutes takes place only in the political arena. Putting the power to seek a remedy for a violation in the hands of persons with disabilities affected by a failure to observe guarantees of equality or carry out positive obligations is an essential element of a legislative and policy framework for promoting the rights of persons with disabilities and recognizing the agency of persons with disabilities. Individual complaints by persons with disabilities can provide a remedy for such people but also stimulate the adoption of systemic measures by a responsible agency Explicit rights-based legislation 32. Hong Kong, China: Hong Kong, China enacted disability discrimination legislation in The Hong Kong legislation, the Disability Discrimination Ordinance (Cap 487), draws on both Australian and British legislative models these are essentially statutes which make it unlawful to discriminate on the ground of disability in a number of fields of social activity and which provide an aggrieved individual with the right to lodge a complaint with an administrative agency or a court for resolution (Hong Kong, China 1995). Much of the substantive content of the Hong Kong legislation (including the definition of disability and disability discrimination) is based on the then current versions of Australian federal and State legislation, while the implementation and enforcement framework is derived from the then existing British models. The legislation prohibits direct and indirect discrimination on the ground of disability in a range of areas (including employment, education, the provision of goods and services and access to facilities) and provides an aggrieved individual with the right to lodge a complaint with the HKEOC and also with the courts. The HKEOC has a function of conciliating complaints where that is possible. Under the legislation the HKEOC also has the power to support court actions, to commence litigation in its own name, to intervene in court proceedings and to institute its own investigations and inquiries into systemic inequality and discrimination on the ground of disability, among other powers and functions. 33. Australia: The legislative framework in Australia (at the Commonwealth and State levels) is very similar to that in Hong Kong, China. In each jurisdiction (federal and the eight State and Territory jurisdictions) there are legislative prohibitions of disability discrimination in various fields. In each jurisdiction there is also a statutory body with either a general human rights jurisdiction, such as the Australian Human Rights Commission at the federal level, or a specific anti-discrimination jurisdiction. For 15

16 example, in New South Wales, the Anti-Discrimination Board administers the Anti- Discrimination Act 1977 (NSW) which includes prohibitions on disability discrimination (Australia 1977). The functions of these bodies include the receipt and consideration of complaints, with a view to conciliating of them if possible. Cases can also be brought before generalist or specialist tribunals and the courts. 34. New Zealand: In New Zealand, a similar scheme of protection is provided under the Human Rights Act 1993 (New Zealand 1993). The Act prohibits discrimination on the ground of disability in a variety of fields, provides for the receipt of complaints by the Human Rights Commission (which has the function of seeking to mediate them), and for the consideration of complaints by a specialist tribunal (the Human Rights Review Tribunal) and ultimately by the courts. 35. Philippines: The Philippines Magna Carta for Persons with Disabilities is an explicit rights-based statute which contains guarantees of rights in a range of areas of life, including employment, education, health, social security, accessibility in the built environment and in relation to transport, political rights and the right to assemble and organize (Philippines 1991). Some of the provisions are expressed as guarantees of rights or in terms of the State s obligation to recognize particular rights; there are also provisions which are programmatic for example, setting out incentives for employers who employ persons with disabilities, obliging the State to adopt appropriate rehabilitation and vocational training measures, and requiring the State to provide assistance for students with disabilities and establish special schools, and obliging State universities to conduct research on disability issues as well as other measures, for example in relation to tax incentives for certain expenditures. Amendments to the Act in 2007 included provisions mandating discounts on a range of goods and services for persons with disabilities, and protection against ridicule or vilification on the ground of disability. The Act also provides for the Secretary of Justice to investigate alleged violations of the Act and to commence legal action in certain cases. The Act also explicitly overrides prior inconsistent legislation, executive orders and regulations (section 49). 36. Fiji: The Human Rights Commission Act 1999 of Fiji specifically prohibits discrimination on the grounds of disability, among other grounds specified in section 38(2) of the Constitution of Fiji, in a variety of fields (Fiji 1999). These include employment-related areas, housing, education, provision of goods, services or facilities and access to public places or places open to the public. Complaints of unlawful discrimination may be lodged with the Fiji Human Rights Commission, which has the function of seeking conciliate complaints; if this is not possible, cases may be brought before the courts. 37. Republic of Korea: Perhaps the most extensive rights-based anti-discrimination legislation in the region is the 2007 Anti-Discrimination against and Remedies for Persons with Disabilities Act of the Republic of Korea (Republic of Korea 2007). This is an explicitly rights-based statute, drafted with careful regard to the provisions of the CRPD, and provides a very good example of how a rights-based statute seeking to implement the requirements of the CRPD might be formulated. 16

17 38. The Act contains both general and specific prohibitions of discrimination on the basis of disability. Article 6 provides: No one shall discriminate against any person on the basis of disability, past record of disability, or presumed disability. 39. It also includes specific guarantees against discrimination on the ground of disability in relation to education, provision of goods and services, access to transport, access to information, telecommunications and other communications services, political rights, the right to found a family and other aspects of family life, sexuality and private life, health, the carrying out of public functions by public officials, as well as in other areas. It also provides for persons who allege that they have been subject to unlawful discrimination to lodge complaints with the National Human Rights Commission of Korea, which has the power to undertake investigations into such a complaint and may also institute an investigation on its own initiative into grave acts of discrimination. Failures by any party to implement recommendations made by the Commission following its investigation of a complaint may be the subject of a remedial order by the Minister of Justice. The Act also provides a general right to compensation for loss suffered as a result of unlawful discrimination, and contains detailed provisions relating to burden of proof and other matters in the context of discrimination claims Legislation which combines rights provisions with programmatic provisions 40. India: The Indian Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also combines individually enforceable guarantees of non-discrimination in specific fields, with programmatic provisions and provisions establishing a number of institutions to advance the rights of persons with disabilities (India 1995). The Act establishes the Office of the Chief Commissioner for Persons with Disabilities and confers on the Commissioner the power to investigate complaints relating to the deprivation of rights of persons with disabilities and failure to implement relevant laws, and provides for similar Commissioners to be appointed in each State. 41. Only a few provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act expressly confer a right directly on a person that can be vindicated before a court or before the Chief Commissioner (India 1995). Section 47 is the major example: this section provides that no (public) establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service, but should find the person another appropriate post if he or she cannot continue with current position. 42. Other provisions of the Act which impose duties on establishments to adopt programmatic steps such as creating and filling reserved places for persons with disabilities in employment or education (sections 32, 33 and 37) or adapting forms of transport or the built environment so that they are accessible (sections 44, 45 and 46) 17

18 can be the subject of legal actions in which the courts may grant relief ordering the respondent to adopt appropriate action, such as the adoption of a scheme or allocation of reserved places. However, a number of these duties are limited and need to be performed within the limits of their economic capacity and development (sections 44, 45 and 46). 43. Bangladesh: In Bangladesh, the Persons with Disability Welfare Act 2001 draws heavily on the Indian Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Bangladesh 2001; India 1995). The Bangladesh legislation establishes national and district coordination committees to provide advice to the responsible governments on issues of disability policy and to engage in awarenessraising and information dissemination. It also sets out programmatic goals in relation to the prevention, identification and treatment of disability; education and the provision of rehabilitation and employment opportunities for persons with disabilities; the promotion of accessible transport, public buildings and health care; participation in cultural life and leisure; social security and organizations of persons with disabilities. However, there is no explicit guarantee that persons who acquire a disability while employed are protected against discrimination on the basis of that disability, and it is not clear from the statute whether the provisions relating to education, transport or other areas are intended to confer rights that could be enforced by an individual through administrative or court proceedings or in a public interest action. 44. Sri Lanka: The Protection of the Rights of Persons with Disabilities Act (No. 28 of 1996) of Sri Lanka is also a statute, the major thrust of which is to establish an institutional framework for promoting the rights of persons with disabilities (Sri Lanka 1996). The statute establishes the National Council for Persons with Disabilities, the principal function of which is to ensure the promotion, advancement and protection of the rights of persons with disabilities (section 12) through the exercise of various advisory, research and promotional functions. The only rights which are explicitly protected are those relating to employment, education and accessibility to buildings open to the public. Section 23 provides: (1) No person with a disability shall be discriminated against on the ground of such disability in recruitment for any employment or office or admission to any educational institution. (2) No person with a disability shall, on the ground of such disability, be subject to any liability, restriction or condition with regard to access to, or use of, any building or place which any other member of the public has access to or is entitled to use, whether on the payment of any fee or not. Section 24 provides that a remedy for such a contravention may be sought before the High Court by the person affected or the National Council. 45. Pakistan: In Pakistan the Disabled Persons' (Employment and Rehabilitation) Ordinance is also essentially a statute which establishes an institutional framework for advancing the rights of persons with disabilities, in the fields of employment and 18

19 rehabilitation (Pakistan 1981). The Ordinance provides for the establishment of the National Council for the Rehabilitation of Disabled Persons and corresponding Provincial Councils. The only substantive obligation imposed by the Ordinance is the requirement that any establishment which employs 100 employees or more must ensure that at least 1 per cent of its employees are persons with disabilities who have registered with the relevant Employment Exchange. If the establishment fails to do this, it is required to pay into a public fund on a monthly basis the money it would have paid to the employee. 46. Japan: The Basic Law for Persons with Disabilities of Japan also contains a range of programmatic and welfare provisions, combined with a number of rights guarantees (Japan 1970). Section 3 provides: Fundamental principles Every person with a disability shall have a right to be respected for his or her individual dignity and lead a decent life. Every person with a disability, as a member of the society, shall be entitled [to] opportunities to participate in social, economic, cultural and all other activities in the society. No one shall be allowed to discriminate against persons with disabilities or violate their rights and benefits on the basis of disability. 47. However, the Law does not stipulate any procedure for dealing with complaints of failure to observe these rights, and it is not clear whether individual complaints can be brought under the legislation. 48. China: The 2008 Law of the People s Republic of China on the Protection of Persons with Disabilities is a comprehensive law, drafted with regard to the CRPD (China 2008). It provides that persons with disabilities shall enjoy equal rights with other citizens in political, economic, cultural and social respects and in family life, that the rights and dignity of persons with disabilities as citizens shall be protected by law, and that discrimination on the basis of disability shall be prohibited (article 3). It also provides that the State shall guarantee or shall protect a number of rights, as well as a number of programmatic measures. The inclusion of these rights provisions in the Law presumably means that they create individually enforceable rights, and Chapter 8 of the Law (articles 59-67) sets out a number of avenues through which persons with disabilities, who consider that their rights are violated, may bring complaints to and seek redress from or through the competent authorities. 49. Thailand: The Persons with Disabilities Empowerment Act B.E (2007) establishes the National Commission on Promotion and Development of Life Quality of Disabled Persons (Thailand 2007). It is largely a programmatic statute establishing a framework for the provision of advice on and promotion of the adoption of laws, policies and programmes to ensure equality for persons with disabilities. However, 19

20 section 6(5) of the Act confers on the Commission the power to determine and issue an order to revoke any discriminatory acts or to prohibit any discriminatory treatment performed toward disabled persons. Section 16 provides that persons with disabilities may lodge complaints with the Commission, and also with the courts in relation to discrimination on the ground of disability. 50. Malaysia: The Persons with Disabilities Act 2008 (Act 685) is one of the most recent pieces of disability legislation in the ESCAP region (Malaysia 2008). The Act draws directly on the CRPD for its Preamble and its definitions of critical concepts, and a number of provisions of the Act replicate or closely follow the language of the CRPD. The Act establishes a National Council for Persons with Disabilities and confers on it a range of functions relating to policy development and implementation, monitoring and evaluation, an advisory role in relation to laws, strategies and programmes, education about disability issues, collection of data, the promotion of employment opportunities for persons with disabilities and other functions. The Act also explicitly sets out rights to be enjoyed by persons with disabilities on the basis of equality with others in relation to access to public facilities, public transport, education, employment, information, communication and technology. Although the Act guarantees the right to equality in these fields, and imposes a range of obligations on public and private actors in relation to these areas, it does not explicitly confer a right of action on or establish a complaints procedure for persons with disabilities who consider that their rights to equality have been denied What should disability discrimination legislation contain? 51. This section sets out a number of factors that policymakers may wish to take into account when they are seeking to ensure that their existing or proposed legislation gives effect to a State party s obligations under the CRPD and provides an effective legal means for ensuring the human rights of persons with disabilities. It is followed by a discussion of certain key concepts, such as the definition of disability and disability discrimination, in the light of the CRPD and experience in the region and elsewhere. 52. In designing rights-based legislation to give effect to the rights guaranteed (or reaffirmed) by the CRPD, two different approaches can be seen in the existing legislation. The first is the model of disability discrimination law seen in jurisdictions such as Australia, Fiji, Hong Kong, China, New Zealand, the United Kingdom of Great Britain and Northern Ireland and the United States of America. These statutes prohibit discrimination on the basis of disability in a number of specified fields of social activity, but do not embody a general prohibition of discrimination on the ground of disability in all areas of life. (This limited coverage needs to be seen in the context of constitutional or quasi-constitutional guarantees of equality and non-discrimination on the ground of disability that exist in all these jurisdictions other than Australia.) While these statutes may in effect protect the right not to be discriminated against on the ground of disability in relation to work, they do not explicitly articulate this protection in terms of the right of persons with disabilities to work on an equal basis with others, or the right to work without discrimination on the ground of disability. Provided that the scope of coverage of such legislation is broad, the protection they afford enforceable rights and accessible 20