Submission: Assistance Animals - pilch

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PILCH Submission to the VLRC’s Assistance Animals Community ConsultationPart C – A human rights framework5 Australia’s international human rights obligations5.1 PILCH considers that a necessary starting point for the Consultation is a consideration ofAustralia’s human rights obligations, particularly in relation to discrimination and therights of disabled persons.5.2 Australia is a party to various international human rights conventions, including theInternational Covenant on Civil and Political Rights (ICCPR) and the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR and ICESCRapply to everyone, including persons with disabilities, and protect against discriminationon any basis. The ICCPR and ICESCR do not, however, directly address the rights ofpersons of disabilities.5.3 The Convention on the Rights of Persons with Disabilities (CRPD) entered into force on 3May 2008. Australia become a signatory to the CRPD on 30 March 2007 and ratified it on17 July 2008. The CRPD states the human rights of persons with disabilities and clarifiesthe obligations on States to promote, protect and ensure those rights as well asmechanisms to support implementation and monitoring. By ratifying the CPRD it becameincumbent of all levels of Australian government, Federal, State and Territory, to meettheir obligations under the Convention.5.4 Although the CRPD does not include a specific definition of “disability” and “persons withdisabilities”, the following aspects of the CRPD provide guidance to clarify its application:• disability is recognised as “an evolving concept and that disability results from theinteraction between persons with impairments and attitudinal and environmentalbarriers that hinders their full and effective participation in society on an equal basiswith others” 1 ; and• persons with disabilities includes “those who have long-term physical, mental,intellectual or sensory impairments which in interaction with various barriers mayhinder their full and effective participation in society on an equal basis with others” 25.5 The CRPD does not address expressly assistance animals. However, the CPRDemphasises that persons with disabilities are entitled to full and effective participationand inclusion in society, as illustrated in the following CPRD articles:(a)Accessibility: “To enable persons with disabilities to live independently andparticipate fully in all aspects of life, State Parties shall take appropriate measuresto ensure to persons with disabilities access, on an equal basis with others, to the1 CRPD, Preamble (e).2 Ibid, Article 1.Page 6
PILCH Submission to the VLRC’s Assistance Animals Community Consultationphysical environment, to transportation, to information and communications,including information and communications technologies and systems, and to otherfacilities and services open or provided to the public, both in urban and ruralareas.” This includes “ensuring that private entities that offer facilities and serviceswhich are open or provided to the public take into account all aspects ofaccessibility for persons with disabilities”; 3(2) Living independently and being included in the community: “State Parties…recognize the equal right of all persons with disabilities to live in the community,with choices equal to others, and shall take effective and appropriate measures tofacilitate full enjoyment by persons with disabilities of this right and their fullinclusion and participation in the community”. This includes ensuring that“[p]ersons with disabilities have access to a range of in-home, residential and othercommunity support services, including personal assistance necessary to supportliving and inclusion in the community, and to prevent isolation or segregation fromthe community”; 4 and(3) Personal mobility: “State Parties shall take effective measures to ensure personalmobility with the greatest possible independence for persons with disabilities.” Thisincludes “[f]acilitating access by persons with disabilities to quality mobility aids,devices, assistive technologies and forms of live assistance and intermediaries,including by making them available at affordable cost.” 56 Other obligations at international law6.1 In addition to being bound by the terms of the conventions such as the CRPD and ICCPR,Australia is also bound by the content and terms of customary international human rights lawwhich imposes responsibilities and obligations in relation to the realisation of the rightsprotected by the ICCPR (among other covenants); namely obligations to respect, protect andfulfil human rights 6 .6.2 The obligation to respect human rights requires that States parties refrain from interfering,directly or indirectly, with enjoyment of human rights. The obligation to protect human rightsrequires that States parties prevent third parties, including organisations and individuals, frominterfering in any way with the enjoyment of human rights. The obligation to fulfil human rightsrequires that States parties take positive steps to promote and support the realisation ofhuman rights and, where necessary, to provide for the realisation of human rights formarginalised or disadvantaged groups.7 The Victorian Charter7.1 The Victorian Charter (which entered into full force on 1 January 2008) enshrines a bodyof civil and political rights derived from the ICCPR. The substantive rights recognised in3 CRPD, Article 94 Ibid, Article 195 Ibid, Article 206 UN Committee on Economic, Social and Cultural Rights, General Comment 15: The Right to Water, [17]–[29], UN DocE/C.12/2002/11 (2002). See also UN Committee on Economic, Social and Cultural Rights, General Comment 12: The Rightto Adequate Food, 66, [15], UN Doc HRI/GEN/1/Rev.5 (2001) and UN Committee on Economic, Social and Cultural Rights,General Comment 13: The Right to Education, 74, [47], UN Doc HRI/GEN/1/Rev.5 (2001).Page 7
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