Gendering the National Disability Care and Support Scheme

Women

With

Disabilities

Australia

(WWDA)

Gendering

the National

Disability Care

and Support

Scheme

WWDA Submission to Stage One of the Productivity Commission

National Disability Care and Support Inquiry August 2010

Gendering the National Disability Care and Support Scheme 1

Women With

Disabilities Australia

(WWDA)

Women With Disabilities Australia (WWDA) is the peak WWDA Submission to Stage One of the organisation for women with all types of disabilities in Productivity Commission National Disability Australia. WWDA is run by women with disabilities, for Care and Support Inquiry women with disabilities. It is the only organisation of its By Carolyn Frohmader for Women With Disabilities Australia kind in Australia and one of only a very small number (WWDA) internationally. It represents more than 2 million disabled women in Australia and operates as a national disability © Women With Disabilities Australia (WWDA) August 2010 organisation; a national women’s organisation; and a national human rights organisation. WWDA is inclusive and does not This work is copyright. Apart from any use as permitted under the Copyright discriminate against any disability. The aim of WWDA is to Act 1968, no part may be reproduced without written permission from Women With Disabilities Australia (WWDA). All possible care has been taken in the be a national voice for the needs and rights of women with preparation of the information contained in this document. WWDA disclaims disabilities and a national force to improve the lives and life any liability for the accuracy and sufficiency of the information and under no chances of women with disabilities. WWDA is committed to circumstances shall be liable in negligence or otherwise in or arising out of the preparation or supply of any of the information aforesaid. promoting and advancing the human rights and fundamental freedoms of women with disabilities.

Our work is grounded in a rights based framework which links gender and disability issues to a full range of civil, political, economic, social and cultural rights. This rights based approach recognises that equal treatment, equal opportunity, and non-discrimination provide for inclusive opportunities for women and girls with disabilities in society. It also seeks to create greater awareness among governments and other relevant institutions of their obligations to fulfil, respect, protect and promote human rights and to support and empower women with disabilities, both individually and collectively, to claim their rights.

Women

With

Disabilities

Australia

(WWDA)

PO Box 605, Rosny Park 7018 TASMANIA, AUSTRALIA

Ph     +61 3 6244 8288                                         Winner, National Human Rights Award 2001

Fax    +61 3 6244 8255                                         Winner, National Violence Prevention Award 1999

ABN   23 627 650 121                                           Winner, Tasmanian Women’s Safety Award 2008

Email   wwda@wwda.org.au                                             Certificate of Merit, Australian Crime & Violence Prevention Awards 2008

Web   www.wwda.org.au                                     Nominee, French Republic’s Human Rights Prize 2003

Nominee, UN Millennium Peace Prize for Women 2000

“While Australia has a strong record of ratification of human rights treaties, including CEDAW, there remains an ‘implementation gap’ at the domestic level.”

Australian Human Rights Commission, 2010 3

Gendering the National Disability Care and Support Scheme 3

Contents

Background 5

The Scope of WWDA’s Submission 7

Executive Summary 8

Gender & Disability 10

Key Concepts in Gendering a Disability Care & Support Scheme 14

The Context & Framework for a Gendered Disability Care & Support Scheme 17

Gender Equality - International Commitments 18

Gender Equality - The Domestic Context 22

Conclusion 24

Appendix 1 26

End Notes 28

4 WOMEN WITH DISABILITES AUSTRALIA

Background

In December 2009, as part of the National Disability Strategy • how to determine the people most in need of support, the (NDS),4 the Australian Government announced a Productivity services that should be available to them, and service delivery Commission5 National Inquiry into a Long-term Care and arrangements;

Support Scheme6 for people with severe and profound disability    •  the costs, benefits, feasibility and funding options of alternative

in Australia, including the establishment of a National Disability schemes; Insurance Scheme (NDIS).7 The need for this National Inquiry • how the scheme will interact with the health, aged care, was the principal recommendation of the Disability Investment informal care, income support and injury insurance systems;

Group (DIG), a group established by the [then] Rudd Labor        •   its impacts on the workforce;

Government to ‘explore innovative funding ideas from the private • how any scheme should be introduced and governed;

sector that will help people with disability and their families access     •  what protections and safeguards should be part of the

greater support and plan for the future’.8 The DIG’s final report,9 scheme. released in December 2009, proposed a new disability policy framework for Australia, with the central platform being the To inform the Inquiry, the Productivity Commission released an introduction of an NDIS. Issues Paper in late May 2010, and conducted an initial series of Public forums. Submissions were invited in response to the The Productivity Commission’s Inquiry into a long-term disability Issues Paper and Terms of Reference. The Commission is due care and support scheme began in April 2010 and will report to to release a draft report in February 2011 setting out its draft Government by July 2011. Amongst other things, the Inquiry has recommendations to the Australian Government. A further been asked to examine: consultative process is scheduled following the release of the

• how a scheme should be designed and funded to better meet Draft Report. The full Terms of Reference for the Inquiry are the long-term needs of people with disability, their families and included in Appendix 1. carers;

Gendering the National Disability Care and Support Scheme 5

6 WOMEN WITH DISABILITES AUSTRALIA

The Scope of

WWDA’s Submission

The Productivity Commission Inquiry into Disability Care and For the purposes of this initial Submission to Stage One of the Support, in its Terms of Reference (which set the scope of the Productivity Commission Inquiry, WWDA has therefore elected Inquiry), and its Issues Paper,10 fails to acknowledge or give to focus on the critical requirement to ensure that any Disability any consideration to the issue of gender. This is despite the Care & Support Scheme (DCSS) is gendered – consistent with fact that successive Australian Governments have committed, Australia’s international obligations to eliminate all forms of internationally and domestically, to enshrine gender equality discrimination against women with disabilities; to ensure equality into legislative and policy frameworks, and implement parallel between men with disabilities and women with disabilities, and strategies in order to promote gender equality and denounce to respect, protect and fulfill the human rights of women with discrimination against women. disabilities.

Gendering the National Disability Care and Support Scheme 7

Executive Summary

The importance in any new Disability Care & Support Scheme     •  Gender must be mainstreamed into all aspects of the

(DCSS) of adhering to the principles and obligations in key DCSS, in recognition that women and girls with disabilities human rights conventions to which Australia is a party, has been have fewer opportunities, lower status and less power and clearly expressed by the Australian Government. influence than men and boys with disabilities. Women with disabilities:

As a member State of the United Nations, and as a party to a         •  are poorer and have to work harder than disabled men to

number of human rights conventions and instruments which secure their livelihoods;

create obligations in relation to gender equality, Australia has          •  have less control over income and assets;

committed to eliminate all forms of discrimination against            •  bear the responsibility for unpaid work in the private and

women and to ensure equality between men and women. In social spheres;

recognition of the fact that women with disabilities face multiple       •  have a smaller share of opportunities for human

discriminations and human rights violations and are often development;

profoundly more disadvantaged than disabled men, Australia has       •  are subject to violence, abuse and intimidation;

also agreed to take all appropriate measures, including focused,        •  have a subordinate social position; and,

gender-specific measures to ensure that disabled women and girls      •  are poorly represented in policy and decision-making.11

experience full and effective enjoyment of their human rights. These factors underscore the need for greater understanding This Submission details Australia’s international and domestic about the rationale and policy and program implications for a obligations to ensure equality between men and women, and gendered approach to the design of the DCSS. to respect, protect and fulfil the human rights of women with

disabilities. In this context, it looks at the key international human    •  The design of the DCSS should be based on sex-

rights treaties and instruments to which Australia is a party, and disaggregated data and gender-sensitive information about also examines the domestic legislative and policy contexts for disabled women and girls. Gender studies should be the promotion of gender equality. WWDA’s Submission argues commissioned to examine particular issues and address that these obligations provide the rationale, need, context information gaps. This information is necessary to identify and framework for a gendered DCSS and reflect Australia’s gender difference and inequality; to design a scheme that commitment to the promotion of an active and visible policy meets disabled women’s real needs; and to monitor the of mainstreaming a gender perspective into all legislative and differential impact of the scheme on disabled women and policy frameworks, along with the implementation of parallel men. strategies in order to promote gender equality and denounce discrimination against women. • DCSS design interventions must ensure gender equity; that is, fairness of treatment (which is equivalent in terms of rights, In the context of these commitments and obligations, there are, benefits, obligations and opportunities) for disabled women therefore, a number of substantive elements which should apply according to their needs. Such interventions must take into to the design of the DCSS, and which are critical for women and account the actual needs of women with disabilities, including girls with disabilities: for example, their roles as carers, and as the providers of unpaid labour in the private and social spheres.

• Gender analysis must be employed in the design of the DCSS in order to demonstrate and acknowledge the • The DCSS should take a life-cycle approach, and ensure that

different life experiences of disabled women and men that women and girls with disabilities can access appropriate levels relate to their specific needs, access to and control over of support that address their long-term needs. The Scheme resources. Gender analysis of the linkages of these and design must ensure that women with disabilities who are other factors in the larger social, economic, political and ageing, or who acquire disability in later age, can access the environmental context, must be undertaken. same quality and extent of care and support.

8 WOMEN WITH DISABILITES AUSTRALIA

• The DCSS should include provision for the development of • The DCSS must adhere to, reflect and implement, Australia’s

specific programs and targeted interventions for the benefit of international obligations to ensure gender equality and disabled women and girls that promote equality and address denounce discrimination against women. discrimination. Recognition of the personhood and human rights of women and

•  Any means testing for Scheme eligibility must recognise that in     girls with disabilities is long overdue. Lack of recognition of their

many cases, women with disabilities do not have equal access needs and experience constitutes a serious form of disrespect to household income and resources. In determining Scheme which compounds lack of self-esteem and self-worth. Inattention eligibility, including those most in need of support, the DCSS to the rights of women with disabilities in the Disability Care & should ensure appropriate coverage for disabled women and Support Scheme, only seeks to contribute to the ongoing neglect girls who: and pervasive denial of their rights and fundamental freedoms.

• are socially excluded;

• are subject to, and at risk of, violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation;

• experience pervasive poverty;

• are denied access to education and employment;

• are subject to violations of their fundamental human rights;

• are segregated and incarcerated in institutions and other forms of congregate care arrangements.

• The DCSS must be designed in a way that promotes and maximises flexibility and choice. It needs to be recognised that self-managed funding, for example, may suit some women with disabilities but not others. For some women with disabilities, self-directed funding may lead to increased vulnerability and potential for exploitation and abuse.

• The DCSS should operate as a stand-alone Scheme. For example, part of the condition of receiving care and support should not be an insistence on participation in the labour market.

• Gender disaggregated indicators must be built into the DCSS design, and monitoring and evaluation mechanisms should include both quantitative and qualitative approaches and measures.

• The DCSS should promote the inclusion of women and girls with disabilities in future decision-making, including in governance arrangements. This must include significant resourcing of capacity building initiatives to ensure that disabled women and girls are able to be involved in debates, discussions and consultative processes about DCSS.

Gendering the National Disability Care and Support Scheme 9

Gender & Disability

Gender affects the equal right of men and women to the result of overt or covert discrimination.15 Women with disabilities enjoyment of their human rights. Gender refers to the social face particular disadvantages in the areas of education, work and differences and relations between men and women which are employment, family and reproductive rights, health, violence and learned, vary widely among societies and cultures, and change abuse. For example: over time. The term gender does not replace the term sex, • women with disabilities experience violence, particularly family which refers exclusively to biological differences between men violence and violence in institutions, more often than disabled and women. The term gender is used to analyse the roles, men;16 17 responsibilities, constraints, opportunities and needs of women

• gender-based violence, including domestic/family violence,and men in all areas and in any given social context. sexual assault/rape is a cause of disability in women.18 19 Domestic violence is the leading contributor to death,Gender roles are learned behaviours in a given society, disability and illness of women in Victoria under the age ofcommunity or other social group. They condition which activities, 45;20tasks and responsibilities are perceived as male or female. Gender roles are affected by age, disability, class, race, ethnicity • women and girls with disabilities are often at greater risk than and religion, and by the geographical, economic and political disabled men, both within and outside the home, of violence, environment.12 Gender-based assumptions and expectations injury or abuse, neglect or negligent treatment, maltreatment generally place women with disabilities at a disadvantage with or exploitation;21 respect to substantive enjoyment of rights, such as freedom to

  act and to be recognised as autonomous, fully capable adults, to • more women than men are classified as disabled, particularly

participate fully in economic, social and political development, and as ageing populations mean that larger proportions of the to make decisions concerning their circumstances and conditions. elderly are women with disabilities.22 Women make up 73% of Single Age Pension recipients in Australia.23 Of all household Gender is one of the most important categories of social types in Australia, elderly single women are at the greatest organisation,13 yet people with disabilities are often treated risk of persistent poverty, with more than half of elderly single as asexual, genderless human beings. This view is borne out in women living in poverty;24 Australian disability policies, which have consistently failed to

• women with disabilities are less likely to receive serviceapply a gender lens. Most have proceeded as though there are support than disabled men;25 26a common set of issues - and that men and women experience

  disability in the same way.14 • while disabled people are much more likely to live in poverty,

women with disabilities are likely to be poorer than men with

However women with disabilities and men with disabilities                                    28                                                                                            disabilities;27

have different life experiences due to biological, psychological, economic, social, political and cultural attributes associated • women with disabilities and men with disabilities have different with being female and male. Patterns of disadvantage are often economic opportunities, with disabled women less likely to be associated with the differences in the social position of women in the paid workforce than disabled men. They also have lower and men. These gendered differences are reflected in the life incomes from employment than men with disabilities.29 30 31 experiences of women with disabilities and men with disabilities. In Australia, the gender gap in pay has widened over the last four years.32 Superannuation savings are directly linked to paid Women with disabilities face multiple discriminations and are work, and current average superannuation payouts for women often more disadvantaged than men with disabilities in similar are less than half that received by men;33 circumstances. Women with disabilities are often denied equal

• gender biases in labour markets have meant that disabledenjoyment of their human rights, in particular by virtue of the women’s productive potential is less effectively tapped thanlesser status ascribed to them by tradition and custom, or as a

10 WOMEN WITH DISABILITES AUSTRALIA

disabled men’s and that disabled women have been more In Australia, women with disabilities bear a disproportionate concentrated than disabled men in informal, subsistence and burden of poverty, are less likely to be in paid work than other vulnerable employment;34 women, disabled men or the population as a whole. There has been no improvement in the unemployment rate of women with

• women with disabilities are more likely to be sole parents, to disabilities for more than a decade, and where they are employed, be living on their own, or in their parental family than disabled women with disabilities experience significant and systemic men;35 discrimination.44

• women who become disabled after marriage are at higher risk Women with disabilities are less likely than their male of divorce than disabled men and often experience difficulty counterparts to receive adequate vocational rehabilitation maintaining custody of their children;36 or gain entry to labour market programs. They earn less than

• women with disabilities are more likely than disabled men, to disabled men, are in the lowest income earning bracket, yet pay face medical interventions to control their fertility;37 38 39 the highest level of their gross income on housing, and spend a greater proportion of their income on medical care and health

• women with disabilities experience more extreme social related expenses. When women with disabilities work, they often categorisation than disabled men, being more likely to be seen experience unequal hiring and promotion standards, unequal either as hypersexual and uncontrollable, or de-sexualised and access to training and retraining, unequal access to credit and inert;40 other productive resources, unequal pay for equal work and occupational segregation, and they rarely participate in economic• women with disabilities like other women, share the burden decision-making.45 of responsibility for unpaid work in the private and social spheres, including for example, cooking, cleaning, caring for Women with disabilities have difficulty finding accessible children and relatives. Women in Australia spend almost three housing, are more likely to be institutionalised than their male times as many hours per week looking after children as men; counterparts and are often forced to live in situations in which and do two thirds of the unpaid caring and domestic work in they experience, or are at risk of experiencing, violence, abuse Australian households;41 (including the use of chemical and physical restraints) and

• women with disabilities are more exposed to practices which neglect.46 The rising cost of housing means that women with qualify as torture or inhuman or degrading treatment42 (such disabilities, with less financial resources at their disposal than as sterilization, forced abortion, violence, forced medication, disabled men, are particularly vulnerable to living in insecure or chemical restraint). inadequate housing.47

Women with disabilities and their children are particularly Two million women with disabilities live in Australia, making up affected by the lack of affordable housing, due to the major gap 20.1% of the population of Australian women. Women with in overall economic security across the life-cycle, and to their disabilities continue to be one of the most excluded, neglected experience of gender-based violence which leads to housing and isolated groups in Australian society, experiencing widespread vulnerability, including homelessness.48 and serious violations of their human rights.

Women with disabilities are denied their right to freedom from As a group, they experience many of the recognised markers of exploitation, violence and abuse – they experience alarmingly social exclusion - socioeconomic disadvantage, social isolation, high rates of all forms of violence and abuse from a range of multiple forms of discrimination, poor access to services, poor perpetrators yet remain excluded from violence prevention housing, inadequate health care, and denial of opportunities to legislation, policies, services and supports. They continue to be contribute to and participate actively in society.43

Gendering the National Disability Care and Support Scheme 11

Gender & Disability

assaulted, raped and abused at a rate of at least two times greater policies and laws. Their issues and needs are often overlooked than other women, and are at greater risk of severe forms of within broader government services and programs. The exclusion intimate partner violence. of women with disabilities from support services, social and economic opportunities and participation in community life, has Women with disabilities are denied their right to bodily integrity, been well documented.57 to control their own bodies and to be free from interventions – evidenced by the practices of forced sterilisation, menstrual Women with disabilities have a significantly high level of suppression, forced contraception and coerced abortion. unmet need for services and support to enable them to live Compared to other women, disabled women are less likely to independently and with dignity in the community.58 They have receive appropriate health services and are significantly more less access to community health programs, such as breast and likely to face medical interventions to control their fertility. cervical screening services than any other group of women, and as a group, are excluded from national women’s health policies Women and girls with disabilities are more likely to be unlawfully and programs. sterilised than their male counterparts. They are less likely to have children, more likely to experience marriage breakdown and divorce, and more likely to be single parents.49

Many women with disabilities are excluded from participating in decisions that affect their lives on a daily basis, particularly for example, as active partners in their own health care. They are often stereotyped as passive, asexual, dependent,50 compliant,51 sick, child-like, incompetent and helpless,52 powerless53 or insecure.54 Alternatively, women with developmental disabilities in particular may be regarded as overly sexual, creating a fear of profligacy and the reproduction of disabled babies, often a justification for their sterilisation.55 These perceptions, although very different, often result in women with disabilities being denied the right to participate in decision-making processes that affect their lives.

Women with disabilities are denied the right to experience their sexuality, to have sexual relationships and to found and maintain a family. They experience discriminatory attitudes and widely held prejudicial assumptions which question their ability and indeed, their right to experience parenthood. They have their babies and children removed by child welfare authorities without evidence of abuse, neglect and/or parental incapacity, and lose their children in custody disputes simply because they are women with disabilities.56

Despite the work of WWDA, women with disabilities in Australia still remain largely invisible and voiceless, often ignored by national

12 WOMEN WITH DISABILITES AUSTRALIA

Gendering the National Disability Care and Support Scheme 13

Key Concepts in

Gendering a Disability

Care & Support Scheme

Gender Equality, equality between men and women, entails the In addition to targeted interventions to promote women’s concept that all human beings, both men and women, are free empowerment, it brings the focus on women’s issues and gender to develop their personal abilities and make choices without the equality into all policy development, research, advocacy, legislation, limitations set by stereotypes, rigid gender roles and prejudices. resource allocation, planning, implementation and monitoring of Gender equality means that the different behaviour, aspirations programs and projects.63 and needs of women and men are considered, valued and favoured equally. It does not mean that women and men have Gender Analysis is a gender mainstreaming tool to ascertain the to become the same, but that their rights, responsibilities and differences between women and men regarding their specific opportunities will not depend on whether they are born male or activities, conditions, needs, access to and control over resources, female.59 and access to development benefits and decision-making. It studies the linkages of these and other factors in the larger social, The principle of non-discrimination is the corollary of the economic, political and environmental context. Gender analysis principle of equality. Discrimination against women is ‘any entails, first and foremost, collecting sex-disaggregated data and distinction, exclusion or restriction made on the basis of sex which gender-sensitive information about the population concerned. has the effect or purpose of impairing or nullifying the recognition, Gender analysis is the first step in gender-sensitive planning for enjoyment or exercise by women, irrespective of their marital status, promoting gender equality.64 It should be conducted at every on a basis of equality of men and women, of human rights and step of an intervention, policy or program, including design, fundamental freedoms in the political, economic, social, cultural, civil or implementation and evaluation.65 any other field.’60 Direct discrimination occurs when a difference in treatment relies directly and explicitly on distinctions based Targeted interventions for gender equality are seen as exclusively on sex and characteristics of men or of women, which essential for mainstreaming, and necessary for gender equity. cannot be justified objectively. Indirect discrimination against Gender Equity means fairness of treatment for women and women may occur when laws, policies and programmes are men, according to their respective needs. This may include based on seemingly gender-neutral criteria which in their actual equal treatment or treatment that is different but which is effect have a detrimental impact on women. Gender-neutral laws, considered equivalent in terms of rights, benefits, obligations policies and programmes unintentionally may perpetuate the and opportunities.66 The development of specific programs and consequences of past discrimination. They may be inadvertently interventions for the benefit of women that promote equality modelled on male lifestyles and thus fail to take into account and address discrimination, are a critical complement to the aspects of women’s life experiences which may differ from those gender mainstreaming process.67 of men. These differences may exist because of stereotypical expectations, attitudes and behaviour directed towards women Gender mainstreaming is not a goal in itself, but a means to which are based on the biological differences between women achieve gender equality. It is a call to Governments and other and men. They may also exist because of the generally existing actors to promote an active and visible policy of mainstreaming subordination of women by men.61 62 a gender perspective in all policies and programs, so that before decisions are taken, an analysis is made of the effects on women The concept of Gender Mainstreaming was clearly established in and men, respectively.68 1995, at the Fourth World Conference on Women held in Beijing, as the main global strategy for promoting gender equality. Gender mainstreaming is a strategy which aims to bring about gender equality and advance women’s rights by infusing gender analysis, gender-sensitive research, women’s perspectives and gender equality goals into mainstream policies, projects and institutions.

14 WOMEN WITH DISABILITES AUSTRALIA

“Australia has signed up to the seven core United Nations treaties that protect human rights. The Government believes that Australia can and should live up to its obligations under those treaties.”

Hon Robert McClelland MP, Attorney-General, 2010 1

Gendering the National Disability Care and Support Scheme 15

16 WOMEN WITH DISABILITES AUSTRALIA

The Context &

Framework for a

Gendered Disability

Care & Support

Scheme

The equal right of men and women to the enjoyment of all reaffirmation of equality of men and women is not sufficient to human rights is one of the fundamental principles recognised meet the obligation to eliminate all forms of discrimination against under international law and enshrined in the main international women with disabilities. International human rights law requires human rights instruments, many to which Australia is a party.70 States to take all appropriate measures (including positive As a member State of the United Nations, and as a party to a steps) to ensure that women with disabilities can enjoy equal number of human rights conventions and instruments which rights in practice.71 The equal right of men and women to the create obligations in relation to gender equality, Australia has enjoyment of economic, social and cultural rights, for example, is committed to eliminate all forms of discrimination against a mandatory and immediate obligation of States parties.72 women and to ensure equality between men and women. The

‘Gender inequality continues to be a significant problem in Australia.’

Australian Human Rights Commission, 2010 69

Gendering the National Disability Care and Support Scheme 17

Gender Equality

International Commitments

In 1983, the Australian Government ratified the United Nations these groups of women primarily, or to a different degree or in Convention on the Elimination of All Forms of Discrimination different ways than men. States parties may need to take specific against Women (CEDAW), one of the nine core international temporary special measures to eliminate such multiple forms human rights treaties.73 CEDAW sets out a range of civil, cultural, of discrimination against women and its compounded negative economic, political, and social rights for women and covers a impact on them.79 variety of situations in which women face discrimination, including in politics, the economy, the family, labour, education and health. And further stated: CEDAW also establishes an agenda of action for putting an end to sex-based discrimination. States parties to the Convention States parties are reminded that temporary special measures are under a legal obligation to respect, protect, promote and should be adopted to accelerate the modification and elimination fulfil this right to non-discrimination for women and to ensure of cultural practices and stereotypical attitudes and behaviour the development and advancement of women in order to that discriminate against or are disadvantageous for women…. improve their position to one of de jure as well as de facto Where necessary, such measures should be directed at women equality with men.74 De jure (or formal) equality and de facto (or subjected to multiple discrimination…..80 substantive) equality are different but interconnected concepts. Formal equality assumes that equality is achieved if a law or CEDAW General Recommendation 18 ‘Disabled Women’,81 policy treats men and women in a neutral manner. Substantive passed in 1991, makes it clear that the Convention covers the equality is concerned, in addition, with the effects of laws, policies human rights of women with disabilities, and makes explicit the and practices and with ensuring that they do not maintain, but need for Governments to take special measures to address the rather alleviate, the inherent disadvantage that particular groups needs of women with disabilities. experience.75 To meet its obligations under CEDAW, the Australian In pursuit of equality, CEDAW permits and provides for special Government is therefore, required to:

(or differential) treatment of women:                         •  ensure that there is no direct or indirect discrimination against

women in Australian laws and that women are protected …….the Convention requires that women be given an equal against discrimination. This includes the need to enshrine start and that they be empowered by an enabling environment to gender equality into domestic legislation;

achieve equality of results. It is not enough to guarantee women                                                      •  improve the de-facto position of women through concrete

treatment that is identical to that of men. Rather, biological as and effective policies and programmes; well as socially and culturally constructed differences between

women and men must be taken into account. Under certain       •  address prevailing gender relations and the persistence of

circumstances, non-identical treatment of women and men will be gender-based stereotypes that affect women not only through required in order to address such differences.76 acts by individuals but also in law, and legal and societal structures and institutions.82 The CEDAW Committee77 has regularly referred to double or multiple discrimination, in which one’s experience of gender may The Convention on the Rights of Persons with Disabilities be influenced by other factors, such as disability, race, religion, (CRPD), which aims to ensure that persons with disabilities nationality, poverty, or age.78 In particular the Committee has enjoy human rights on an equal basis with others, is the most expressly stated that: recent international human rights treaty ratified by the Australian Government, entering into force in Australia in 2008. The Certain groups of women, in addition to suffering from Convention promotes and protects the human rights of persons discrimination directed against them as women, may also with disabilities in economic, social, political, legal and cultural life. suffer from multiple forms of discrimination based on additional grounds such as race, ethnic or religious identity, disability, age, As with other international human rights treaties, the CRPD class, caste or other factors. Such discrimination may affect imposes three distinct obligations on States Parties: the obligation

18 WOMEN WITH DISABILITES AUSTRALIA

to respect (meaning States parties must refrain from interfering The International Covenant on Economic, Social and Cultural with the enjoyment of the rights of persons with disabilities); the Rights (CESCR) was ratified by Australia in 1975. The CESCR obligation to protect (States parties must prevent violations of commits States Parties to work toward the granting of economic, these rights by third parties) and, the obligation to fulfil (States social, and cultural rights to individuals, including labour rights and parties must take appropriate legislative, administrative, budgetary, rights to health, education, and an adequate standard of living. judicial and other actions towards the full realisation of these The CESCR protects human rights that are fundamental to the rights). dignity of every person. In particular, Article 3 of this Covenant provides for the equal right of men and women to the enjoyment In acknowledging the impact of multiple discriminations caused of rights it articulates. The equal right of men and women to the by the intersection of gender and disability, and in recognition of enjoyment of economic, social and cultural rights is a mandatory the fact that women with disabilities are often profoundly more and immediate obligation of States parties.87 CESCR imposes disadvantaged than men with disabilities in similar situations,83 three levels of obligations on States parties - the obligation to leading to the denial of rights, opportunities and resources, respect, to protect and to fulfil. The obligation to respect includes the CRPD contains a stand alone Article on ‘Women with the requirement of States parties to take into account the effect Disabilities’. This Article prioritises women with disabilities as a of apparently gender-neutral laws, policies and programmes group warranting specific attention, and calls on Governments and to consider whether they could result in a negative impact to take positive actions and measures to ensure that women on the ability of men and women to enjoy their human rights and girls with disabilities enjoy all human rights and fundamental on a basis of equality.88 The obligation to protect requires freedoms.84 85 States parties to take steps aimed directly at the elimination of prejudices, customary and all other practices that perpetuate The CRPD expressly articulates equality between men the notion of inferiority or superiority of either of the sexes, and and women as one of the key principles underpinning the stereotyped roles for men and women.89 Amongst other things, Convention. This principle requires States to promote equality the obligation to fulfill requires States parties to take steps to between men and women and to combat inequality when ensure that in practice, men and women enjoy their economic, implementing the provisions of the Convention. In addition to social and cultural rights on a basis of equality. Such steps include, Article 6 (Women With Disabilities), issues of particular relevance for example, the design and implementation of policies and to women with disabilities are addressed throughout the various programmes to give long-term effect to the economic, social and articles of the CRPD, including for example Freedom from cultural rights of both men and women on the basis of equality. exploitation, violence and abuse (Article 16); Health (Article 25) These may include the adoption of temporary special measures and Adequate Standard of Living (Article 28). to accelerate women’s equal enjoyment of their rights, gender audits, and gender-specific allocation of resources.90 In meeting its obligations under the CRPD, the Australian Government has a commitment to ensure that Article 6 The International Covenant on Civil and Political Rights (Women with Disabilities) is implemented at the domestic level. (ICCPR) ratified by Australia in 1980, commits its parties to This includes ensuring that national policies, frameworks and respect the civil and political rights of individuals, including the strategies make explicit recognition of the impact of multiple right to life, freedom of religion, freedom of speech, freedom of discriminations caused by the intersection of gender and disability, assembly, family rights, electoral rights and rights to due process and include focused, gender-specific measures to ensure that and a fair trial. Article 3 implies that all human beings should women with disabilities experience full and effective enjoyment of enjoy the rights provided for in the Covenant, on an equal basis their human rights. The need to incorporate a gender perspective and in their totality. Consequently, States should ensure that men in all efforts to promote the full enjoyment of human rights and and women share equally in the enjoyment of all rights provided fundamental freedoms by persons with disabilities, is expressly for in the Covenant. The obligation to ensure to all individuals the stated in the CRPD.86 rights recognised in the Covenant, requires that States parties take all necessary steps to enable every person to enjoy those

Gendering the National Disability Care and Support Scheme 19

Gender Equality

International Commitments

rights. These steps include the removal of obstacles to the equal Parties to CAT are therefore required to ensure the protection enjoyment of such rights, the education of the population and of of women especially at risk of torture or ill-treatment, by fully State officials in human rights, and the adjustment of domestic prosecuting and punishing all acts of violence and abuse against legislation so as to give effect to the undertakings set forth in these individuals and ensuring implementation of other positive the Covenant. The State party must not only adopt measures of measures of prevention and protection.95 protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women.91 In adopting the Beijing Declaration and Platform for Action (BPFA),96 the Australian Government committed to the Australia ratified the Convention on the Rights of the Child promotion of an active and visible policy of mainstreaming a (CRC) in 1990. The CRC is one of the nine core international gender perspective into all policies and programs, including human rights treaties. It sets out the civil, political, economic, with regard to human rights of women. The Platform also social, and cultural rights of children. The Convention generally emphasised that the goal of full realisation of human rights for defines a child as any human being under the age of eighteen, all required explicit attention to the systematic and systemic unless an earlier age of majority is recognised by a country’s law. nature of discrimination against women.97 The commitment Article 2 of the CRC requires States parties to ensure that all to the BPFA was further reaffirmed by member states in the children within their jurisdiction enjoy all the rights enshrined in outcome document of the Twenty-third Special Session of the the Convention without discrimination of any kind. This obligation UN General Assembly in 2000. This meant that the Australian requires States parties to take appropriate measures to prevent Government committed to further actions and initiatives to all forms of discrimination, including on the ground of disability. accelerate the implementation of the BPFA and to ensure that This explicit mention of disability as a prohibited ground for commitments for gender equality are fully realized. This included discrimination recognizes that children with disabilities belong to the need to ensure that, as a priority, women’s needs, interests, one of the most vulnerable groups of children, and that factors concerns, experiences and priorities are an integral dimension of such as gender can increase this vulnerability.92 CRC General the design, implementation, national monitoring, and follow-up Comment 9 (The rights of children with disabilities)93 expressly and evaluation, of all actions in all areas.98 The need for all policy states that: making and programming to include and address the needs of women with disabilities, including the need for special measures, is Girls with disabilities are often even more vulnerable to also clearly articulated. discrimination due to gender discrimination. In this context, States parties are requested to pay particular attention to girls with The United Nations Biwako Millennium Framework for disabilities by taking the necessary measures, and when needed Action towards an Inclusive, Barrier-free and Rights based extra measures, in order to ensure that they are well protected, Society in Asia and the Pacific (BMF), was adopted by the have access to all services and are fully included in society.94 Australian Government in 2002, as the defining policy guideline to promote the full participation and equality of people with The Convention against Torture and Other Cruel, Inhuman disabilities in the Asia Pacific region, during the decade 2002 or Degrading Treatment or Punishment (CAT) is another of 2012.99 In acknowledging that women with disabilities experience the international human rights treaties to which Australia is a discrimination to a greater extent than disabled men, the BMF party, having ratified CAT in 1989. CAT General Comment 2 identifies ‘women with disabilities’ as one of seven priority areas emphasises that gender is a key factor in implementation of for action. the Convention. Being female intersects with other identifying characteristics (such as disability) to determine the ways that In 2007, in recognition that Governments needed to women and girls are subject to or at risk of torture or ill- strengthen their efforts to implement the BMF, ministerial-level treatment and the consequences thereof. The contexts in which representatives of countries in the region developed Biwako females are at risk include for example, deprivation of liberty, Plus Five,100 a supplement to the BMF designed to accelerate medical treatment, particularly involving reproductive decisions, implementation of the BMF by 2012. Biwako Plus Five provides and violence by private actors in communities and homes. States additional actions in the seven priority areas, along with additional

20 WOMEN WITH DISABILITES AUSTRALIA

key strategies. In relation to the priority area of ‘women with The ILO strongly advocates for gender mainstreaming in the disabilities’ Biwako Plus Five specifically requires Governments to: application of International Labour Standards, and maintains that

•  Promote the inclusion of gender perspectives in disability-       such an approach:

relevant policies, programmes, plans and legislation;            •  helps to ensure that women and men have equal access to

benefits derived from the Conventions;• Promote the inclusion of the perspectives of women with

disabilities in the development of gender-relevant policies,       •  recognises the needs, experiences and interests of both

programmes, plans and legislation; women and men;

•  Promote the participation of women with disabilities and       •  enables stakeholders to manage change;

organizations of women with disabilities in the processes of                                                      •  demonstrates a willingness to undertake differential measures

developing both gender-relevant and disability-related policies, to respond to the needs and interests of men and women; programmes, plans and legislation; and

•  Recognize that women and girls with disabilities are subject                                                      •  advocates equality brought about by the implementation of

to multiple discrimination and, in this regard… should support Conventions. the economic, social, cultural and political empowerment of women with disabilities, in particular through leadership and management training on a sustained basis. Governments The Australian Government is also committed to the should take appropriate measures to address discrimination implementation of the Millennium Development Goals (MDGs) against women with disabilities in all matters, including those - agreed targets set by the world’s nations to reduce poverty relating to marriage, family, parenthood and relationships, by 2015. Gender equality is central to achieving these goals. to ensure their full development, advancement and Actively supporting women’s full participation in economic, social empowerment. and political life is a key factor in reducing poverty, enhancing economic growth and democratic governance, and increasing the well-being of women, girls and their families.104 Australia is a party to fifty-five Conventions (forty seven in force) of the International Labour Organisation ILO),101 including three of the four key equality Conventions. These are: Discrimination in respect of Employment and Occupation (ILO Convention

No 111); Equal Remuneration for Men and Women Workers

for Work of Equal Value (ILO Convention No 100); and Equal Opportunities and Equal Treatment for Men and Women

Workers: Workers with Family Responsibilities (ILO Convention

No 156).

The ILO has however, found that states parties to these Conventions, often fail to ensure their implementation:

women still face multiple forms of discrimination in the labour market……….. there continues to be a gap between the rights set out in national and international standards and the real situation of workers. These rights must be made effective in practice.102 103

Gendering the National Disability Care and Support Scheme 21

Gender Equality

The Domestic Context

Equality between men and women is a principle that lies at        •  the importance of human rights education;

the heart of a fair and productive society. It is also the key goal                                                      •  enhancing Australia’s domestic and international engagement

of the Sex Discrimination Act 1984 (SDA), which aims to on human rights issues; eliminate discrimination and sexual harassment and promote

greater equality in all aspects of the Australian community. The      •  improving human rights protections including greater

SDA makes unlawful discrimination on the grounds of sex, parliamentary scrutiny; and

marital status, pregnancy or potential pregnancy in many areas                                                      •  achieving greater respect for human rights principles within

of public life including employment, education and the provision the community. of goods, services or facilities. The SDA makes it unlawful to discriminate on the ground of family responsibilities only in The Framework reaffirms Australia’s commitment to thethe case of dismissal from employment. The Act also gives seven core human rights treaties to which it is a party, andeffect to certain provisions of CEDAW. Following a Senate acknowledges that these treaties reflect international agreementReview in 2008 of the effectiveness of the SDA in eliminating about the fundamental values that make up human rightsdiscrimination and promoting gender equality, the Australian protected under the treaties. Equality between men andGovernment introduced the Sex Discrimination Amendment women and the elimination of discrimination against womenBill 2010 into the Parliament in June 2010. The Bill amends the are recognized as fundamental human rights, and are enshrinedSDA to: extend protections from discrimination on the grounds in most of the core international human rights treaties. Theof family responsibilities to both women and men in all areas of Australian Government has expressly articulated the view thatwork; provide improved protection from sexual harassment for ‘Australia can and should live up to its obligations under thosestudents and workers; ensure protections from sex discrimination treaties’.109apply equally to women and men; and establish breastfeeding as a separate ground of discrimination.105

The Australian Government’s National Disability Strategy (NDS)

was released in late July 2010. It sets out a ten year national planThe Equal Opportunity for Women in the Workplace Act 1999 for improving life for Australians with disability, their families and(EOWW Act) creates positive obligations for employers to carers. The purpose of the National Disability Strategy is to:develop and implement workplace programs to ensure women

• establish a high level policy framework to give coherencehave equality of opportunity. Employers are required to report to, and guide government activity across mainstream andannually on these programs. These obligations apply to employers disability-specific areas of public policyof 100 people or more, and higher education institutions that

  are employers. The EOWW Act also establishes the Equal • drive improved performance of mainstream services in

Opportunity for Women in the Workplace Agency (EOWA) delivering outcomes for people with disability which monitors compliance with these obligations.106 A Review

• give visibility to disability issues and ensure they are included inof the effectiveness and efficiency of the EOWW Act is currently the development and implementation of all public policy thatbeing undertaken by the Australian Government. Preliminary impacts on people with disabilityfindings have included the need for the Act to be improved to

  better capture issues for women with disabilities.107 • provide national leadership toward greater inclusion of people

with disability. In April 2010, the Australian Government released Australia’s Human Rights Framework108 which outlines a range of key The NDS covers six key policy areas110 and recognizes that measures to further protect and promote human rights in sex, race and age can significantly impact on the experience of Australia. The Framework is based on five key principles and disability. It specifically acknowledges that women and men with focuses on: disability often face different challenges by reason of their sex, or

• reaffirming a commitment to Australia’s human rights experience the same issues in different ways, and therefore need obligations; different supports.111

22 WOMEN WITH DISABILITES AUSTRALIA

The NDS aims to ensure that the principles underpinning the The Council of Australian Governments (COAG)119 is currently Convention on the Rights of Persons with Disabilities (CRPD) developing a National Plan to Reduce Violence against Women are incorporated into policies and programs affecting people with and their Children, including an initial three-year action plan, disability, their families and carers. As outlined earlier in this paper, during 2010.120 The COAG National Action Plan will be informed ‘Equality between men and women’ (a fundamental human right by Time for Action, the final report of the National Council to in itself) is one of the key principles underpinning the CRPD. Reduce Violence Against Women and their Children. This report adopts an intersectional analysis to ensure that gender equality In June 2010, Australia’s Sex Discrimination Commissioner,112 and factors such as disability, race, ethnicity, sexuality, and class, Elizabeth Broderick, released her Gender Equality Blueprint are taken into account. It acknowledges that compared to non

2010. The Blueprint sets out key reforms and recommendations disabled women, women with disabilities experience violence at in five priority areas which significantly affect both the public and significantly higher rates, more frequently, for longer, in more ways, private lives of women and men in Australia. Its development and by more perpetrators, yet programs and services for this stemmed from the Commissioner’s National Listening Tour113 in group either do not exist or are extremely limited.121 2008, which involved extensive consultations with women and men across the country. The Commissioner’s key finding of the The Australian Government has unequivocally stated it’s consultations was that Australia’s progress towards the goal of committed to strengthening the provision of gender analysis, gender equality had stalled.114 Consequently, one of the five advice and mainstreaming across Government. The Minister priority areas of the Blueprint is to ‘strengthen gender equality laws, for the Status of Women works with other Government agencies and monitoring’. This includes key strategies to meet the Ministers to ‘ensure that women’s issues and gender equality following recommendations: are taken into consideration in policy and program development

•  to build effective gender equality machinery in Australia;         and implementation.’ The Office for Women (OFW) supports

the Minister in this role, and is the central source of advice for• to strengthen the Sex Discrimination Act to promote Government agencies on the impact of Government policies substantive gender equality; and programs for Australian women. The OFW asserts that it

•  to ensure women experience equal outcomes in the            has strengthened its role in advising Government agencies on

workplace; the gender dimensions of policy and program development and implementation. Its role includes the provision of advice on the• to genuinely chart Australia’s progress on gender equality; and gender dimensions of policy submissions to Cabinet Ministers, to

•  to promote and protect all human rights, including the right to                                                              ensure gender equality is considered in the early stages of policy

equality. development.122

The Australian Government is currently in the process of developing a new National Women’s Health Policy (NWHP)115 in order to: ‘improve the health and wellbeing of all women in Australia, especially those with the highest risk of poor health; encourage the health system to be more responsive to the needs of women; actively promote the participation of women in health decision making and management; and to promote health equity

among women.’116 The NWHP Consultation Discussion Paper,117

released by the Government to inform development of the NWHP, identifies women with disabilities as a group experiencing major inequalities in health status, and further identifies the critical importance of the participation of socially excluded groups of women in health as a ‘key way of making the health system more responsive to their needs’.118

Gendering the National Disability Care and Support Scheme 23

Conclusion

As a member State of the United Nations, and as a party to a women, and to respect, protect and fulfil the human rights of number of human rights conventions and instruments which women with disabilities. In this context, it has looked at the key create obligations in relation to gender equality, Australia has international human rights treaties and instruments to which committed to eliminate all forms of discrimination against Australia is a party, and also examined the domestic legislative women and to ensure equality between men and women. In and policy contexts for the promotion of gender equality. recognition of the fact that women with disabilities face multiple discriminations and human rights violations and are often WWDA’s Submission has argued that these obligations provide profoundly more disadvantaged than disabled men, Australia has the rationale, need, context and framework for a gendered also agreed to take all appropriate measures, including focused, Disability Care & Support Scheme (DCSS) and reflect Australia’s gender-specific measures to ensure that disabled women and girls commitment to the promotion of an active and visible policy experience full and effective enjoyment of their human rights. of mainstreaming a gender perspective into all legislative and policy frameworks, along with the implementation of parallel This Submission has detailed Australia’s international and strategies in order to promote gender equality and denounce domestic obligations to ensure equality between men and discrimination against women.

24 WOMEN WITH DISABILITES AUSTRALIA

“If those who sign agreements such as the Convention on the

Elimination of Discrimination

against Women, or who endorse the Beijing Platform for Action, do not translate commitments into actions, and are not held to account for these actions, these texts lose credibility. Accountability is essential if the world is to realise women’s rights and gender equality.”

Ban Ki-Moon, Secretary-General of the United Nations, 2008 2

Gendering the National Disability Care and Support Scheme 25

Appendix 1

Terms of Reference

Productivity Commission Inquiry into Disability Care and Support

I, Nick Sherry, pursuant to Parts 2 and 3 of the Productivity Commission Act 1998, hereby refer a national disability long-term care and support scheme in Australia to the Productivity Commission for inquiry and report by 31 July 2011. The Commission will begin the inquiry in April 2010.

Background

The Australian Government is committed to developing a National Disability Strategy to enhance the quality of life and increase economic and social participation for people with disability and their carers.

The Commonwealth, along with the States and Territories, has a major investment in disability specific support. However, there remains a significant level of unmet demand for disability services which impacts upon the lives of people with disability, their families and carers. Demographic change and the anticipated decline in the availability of informal care are expected to place further pressure on the existing system over the coming decades.

While Australia’s social security and universal health care systems provide an entitlement to services based on need, there is currently no equivalent entitlement to disability care and support services.

The Government is committed to finding the best solutions to improve care and support services for people with disability. An exploration of alternative approaches to funding and delivering disability services with a focus on early intervention and long-term care will be an important contribution to the National Disability Strategy.

Scope of the review The Productivity Commission is requested to undertake an inquiry into a National Disability Long-term Care and Support Scheme. The inquiry should assess the costs, cost effectiveness, benefits, and feasibility of an approach which:

• provides long-term essential care and support for eligible people with severe or profound disability, on an entitlement basis and taking account the desired outcomes for each person over a lifetime

• is intended to cover people with disability not acquired as part of the natural process of ageing

• calculates and manages the costs of long-term care and support for people with severe and profound disability

• replaces the existing system funding for the eligible population

• ensures a range of support options is available, including individualised approaches

• includes a coordinated package of care services which could include accommodation support, aids and equipment, respite, transport and a range of community participation and day programs available for a person’s lifetime

• assists the person with disability to make decisions about their support

• provides support for people to participate in employment where possible. In undertaking the inquiry, the Commission is to:

1. Examine a range of options and approaches, including international examples, for the provision of long-term care and support for people with severe or profound disability.

The Commission is to include an examination of a social insurance model on a no-fault basis, reflecting the shared risk of disability across the population. The Commission should also examine other options that provide incentives to focus investment on early intervention, as an adjunct to, or substitute for, an insurance model.

26 WOMEN WITH DISABILITES AUSTRALIA

2. The Commission is to consider the following specific design issues of any proposed scheme:
   

• eligibility criteria for the scheme, including appropriate age limits, assessment and review processes

• coverage and entitlements (benefits)

• the choice of care providers including from the public, private and not-for-profit sectors

• contribution of, and impact on, informal care

• the implications for the health and aged care systems

• the interaction with, or inclusion of, employment services and income support

• where appropriate, the interaction with:

• national and state-based traumatic injury schemes, with particular consideration of the implications for existing compensation arrangements

• medical indemnity insurance schemes.

3. Consider governance and administrative arrangements for any proposed scheme including:

• the governance model for overseeing a scheme and prudential arrangements
• administrative arrangements, including consideration of national, state and/or regional administrative models
• implications for Commonwealth and State and Territory responsibilities
• the legislative basis for a scheme including consideration of head of power
• appeal and review processes for scheme claimants and participants.

4. Consider costs and financing of any proposed scheme, including:

• the costs in the transition phase and when fully operational, considering the likely demand for, and utilisation under different demographic and economic assumptions

• the likely offsets and/or cost pressures on government expenditure in other systems as a result of a scheme including income support, health, aged care, disability support system, judicial and crisis accommodation systems

• models for financing including: general revenue; hypothecated levy on personal taxation, a future fund approach with investment guidelines to generate income

• contributions of Commonwealth and State and Territory governments

• options for private contributions including copayments, fees or contributions to enhance services.

5. Consider implementation issues of any proposed scheme, including:

• changes that would be required to existing service systems
• workforce capacity
• lead times, implementation phasing and transition arrangements to introduce a scheme with consideration to service and workforce issues, fiscal outlook, and state and territory transitions.

The Government will establish an Independent Panel of persons with relevant expertise to act in an advisory capacity to the Productivity Commission and the Government, and report to Government throughout the inquiry.

The Commission is to seek public submissions and to consult as necessary with the Independent Panel, State and Territory governments, government agencies, the disability sector and other relevant experts and stakeholders.

Nick Sherry

Assistant Treasurer

[Received 17 February 2010]

Gendering the National Disability Care and Support Scheme 27

End Notes

1    Commonwealth of Australia (2010) Australia’s Human Rights Framework.      16   Women With Disabilities Australia (WWDA) (2007b) ‘Forgotten Sisters - A

Attorney-General’s Department, Canberra. global review of violence against women with disabilities’. WWDA Resource

Manual on Violence Against Women With Disabilities. Published by WWDA,

2     Cited in: UN Development Fund for Women (UNIFEM), (2008) Progress                                                                                         Tasmania, Australia.

of the World’s Women 2008/2009: Who Answers to Women? Gender &

Accountability, Accessed 2 August 2009 at: http://www.unhcr.org/refworld/     17    Meekosha, H. (2004) Gender and Disability. Entry for the Sage

docid/4a09773a2.html Encyclopaedia of Disability. Available on line at: http://wwda.org.au/ gendis2001.htm

3 Australian Human Rights Commission (2010) Australia’s Implementation

of the Convention on the Elimination of All Forms of Discrimination against       18  WWDA (2007b) Op Cit.

Women (CEDAW). Independent Report to the Committee on the

19   Commonwealth of Australia (2009) Time for Action: The National Council’s       Elimination of Discrimination against Women. Accessed online July 2010 at:

Plan for Australia to Reduce Violence against Women and their Children, http://www2.ohchr.org/english/bodies/cedaw/cedaws46.htm 2009-2021. Department of Families, Housing, Community Services and

4    The Draft NDS was released in late July 2010, and is intended to guide               Indigenous Affairs (FaHCSIA), Canberra.

government activity and future policy initiatives in creating a more socially

20    Cited in: Australian Human Rights Commission (2010) Australia’s       inclusive Australia for people with disabilities More information about the

Implementation of the Convention on the Elimination of All Forms of NDS is available online at: http://www.fahcsia.gov.au/sa/disability/progserv/ Discrimination against Women (CEDAW). Independent Report to the govtint/Pages/nds.aspx Committee on the Elimination of Discrimination against Women. Accessed

5    The Productivity Commission is the Australian Government’s independent            online July 2010 at: http://www2.ohchr.org/english/bodies/cedaw/

research and advisory body on a range of economic, social and cedaws46.htm environmental issues affecting the welfare of Australians. 21 See Preamble [q] of UN General Assembly, Convention on the Rights of

6    The Inquiry is being undertaken by the Productivity Commission. More               Persons with Disabilities: resolution/adopted by the General Assembly, 24

information is available online at: http://www.pc.gov.au/projects/inquiry/ January 2007, A/RES/61/106. disability-support 22 Meekosha, H. (2004) Op Cit. 7 More information about the NDIS, including background, is available online

23    Cited in: Australian Human Rights Commission (2010) Op Cit.         at: http://www.ndis.org.au/

24    Cited in: Australian Human Rights Commission (2010) Op Cit.8    Commonwealth of Australia (2009) The Way Forward: A New Disability

Policy Framework for Australia. Report of the Disability Investment Group.      25    See: Australian Institute of Health & Welfare (AIHW) (2009) Disability

Accessed online March 2010 at: http://www.fahcsia.gov.au/sa/disability/ support services 2007 – 08. National data on services provided under the progserv/people/Pages/DisabilityInvestmentGroup.aspx Commonwealth State/Territory Disability Agreement. Disability series. Cat. no. DIS 56.Canberra: AIHW.9 Commonwealth of Australia (2009) Ibid.

26    Arnade, S. & Haefner, S. (2006) Op Cit.10    See: Productivity Commission (2010) Disability Care and Support:

Productivity Commission Issues Paper. Melbourne, Victoria. Available online at:    27  WWDA (2009) Submission to the National Human Rights Consultation.

http://www.pc.gov.au/projects/inquiry/disability-support WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006. htm11 Department for International Development (2002) Gender Manual:

A Practical Guide for Development Policy Makers and Practitioners. Social        28    Meekosha, H. (2004) Op Cit.

Development Division; DFID, London, UK. 29 WWDA (2008) Submission to the Parliamentary Inquiry into pay equity and

12    United Nations Educational, Scientific and Cultural Organization                       associated issues related to increasing female participation in the workforce.

(UNESCO) (2000) Gender Equality and Equity. A summary review of WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006. UNESCO’s accomplishments since the Fourth World Conference on htm Women (Beijing 1995). UNESCO, Paris, France. 30 O’Reilly, A. (2007) The right to decent work of persons with disabilities.

13    Arnade, S. & Haefner, S. (2006) Gendering the Draft Comprehensive and                 International Labour Office (ILO), Geneva.

Integral International Convention on the Protection and Promotion of the Rights

and Dignity of Persons with Disabilities. Legal background paper. Published by    31    Arnade, S. & Haefner, S. (2006) Op Cit.

Disabled Peoples´ International (DPI), Berlin.                                                                    32    Cited in: Australian Human Rights Commission (2010), Op Cit.

14     Gray, G. (2010 draft) By Women for Women, the Australian women’s health                                                                    33    Cited in: Australian Human Rights Commission (2010), Op Cit.

movement and public policy. (forthcoming). 34 UN Development Fund for Women (UNIFEM) (2008) Progress

15   UN Committee on Economic, Social and Cultural Rights (CESCR), General                                                                                                      of the World’s Women 2008/2009: Who Answers to Women? Gender

Comment No. 16: The Equal Right of Men and Women to the Enjoyment & Accountability. Available at: http://www.unhcr.org/refworld/ of All Economic, Social and Cultural Rights (Art. 3 of the Covenant), 11 docid/4a09773a2.html [accessed 2 August 2009] August 2005, E/C.12/2005/4, available at: http://www.unhcr.org/refworld/

docid/43f3067ae.html [accessed 27 June 2010]                          35    Meekosha, H. (2004) Op Cit.

28 WOMEN WITH DISABILITES AUSTRALIA

36 Arnade, S. & Haefner, S. (2006) Op Cit. 56 WWDA (2009) Parenting Issues for Women with Disabilities in Australia: A

Policy Paper. WWDA, Tasmania. Available online at: http://www.wwda.org.

37    Brady, S., Briton, J. & Grover, S. (2001) The Sterilisation of Girls and Young                                                                                 au/subs2006.htm

Women in Australia: Issues and Progress. A report commissioned by the

Federal Sex Discrimination Commissioner and the Disability Discrimination    57  WWDA (2009) Submission to the National Human Rights Consultation.

Commissioner; Human Rights and Equal Opportunity Commission, Sydney, WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006. Australia. Available online at http://www.wwda.org.au/brady2.htm htm

38  WWDA (2009) Parenting Issues for Women with Disabilities in Australia: A      58     Ibid.

Policy Paper. WWDA, Tasmania. Available online at: http://www.wwda.org.

59    International Labour Office (ILO) (2000) ABC of women workers’ rights and      au/subs2006.htm

gender equality. ILO, Geneva. 39 Steele, L. (2008) Making sense of the Family Court’s decisions on the non

60   As defined in Article 1 of CEDAW. UN General Assembly, Convention on       therapeutic sterilisation of girls with intellectual disability; Australian Journal

the Elimination of All Forms of Discrimination Against Women, 18 December of Family Law, Vol.22, No.1. 1979, 34/180, United Nations, Available at: http://www.unhcr.org/refworld/

40    Meekosha, H. (2004) Op Cit.                                                   docid/3ae6b3970.html

41    Cited in: Australian Human Rights Commission (2010), Op Cit.              61   See para 7 of CEDAW General Recommendation 25: Article 4, paragraph 1,

of the Convention (Temporary Special Measures). 42 Committee of Ministers of the Council of Europe (2009) Declaration:

Making gender equality a reality. 119th Session of the Committee of           62  UN Committee on Economic, Social and Cultural Rights (CESCR), General

Ministers, Madrid, 12 May 2009. Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Art. 3 of the Covenant), 11

43  WWDA (2009) Submission to the National Human Rights Consultation.                                                                                 August 2005, E/C.12/2005/4, available at: http://www.unhcr.org/refworld/

WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006. docid/43f3067ae.html [accessed 2 June 2010] htm 63 Association for Women’s Rights in Development (2004) Gender

44  WWDA (2010) ‘Women With Disabilities & The Human Right to Health: A                                                                                        Mainstreaming: Can it work for women’s rights? Spotlight, Number 3, Nov.

Policy Paper’. WWDA, Tasmania. Available online at: http://www.wwda.org. 2004. au/subs2006.htm 64 International Labour Office (ILO) (2000) ABC of women workers’ rights and

45     O’Reilly, A. (2003) ‘Employment Barriers for Women with Disabilities’ in The                                                                                       gender equality. ILO, Geneva.

Right to Decent Work of Persons with Disabilities; IFP/Skills Working Paper No.

14, International Labour Organization (ILO).                            65    Son, J. (Ed) (2010) Gender & Development Glossary, 3rd Edition. Inter Press

Service (IPS), Thailand. 46 WWDA (2009) Submission to the National Human Rights Consultation.

WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006.     66    Son, J. (Ed) (2010) Op Cit.

htm 67 Hannan, C. (2003) Overview on Gender Mainstreaming. In: United Nations

47    Cited in: Australian Human Rights Commission (2010), Op Cit.                     (2003) Economic and Social Commission for Asia and the Pacific

(ESCAP) Putting Gender Mainstreaming into Practice. United Nations, ST/

48    Australian Human Rights Commission (2010), Op Cit.                                                                            ESCAP/2254.

49  WWDA (2009) Submission to the National Human Rights Consultation.                                                                    68    United Nations Educational, Scientific and Cultural Organization

WWDA, Tasmania. Available online at: http://www.wwda.org.au/subs2006. (UNESCO) (2000) Gender Equality and Equity. A summary review of htm UNESCO’s accomplishments since the Fourth World Conference on

50   See for eg: Curry, M. et al (2001) Abuse of women with disabilities: An          Women (Beijing 1995). UNESCO, Paris, France.

ecological model and review. Violence Against Women, Vol. 7, No. 1.                                                                    69    Australian Human Rights Commission (2010) Australia’s Implementation

51   See for eg: Carlson, B. (1997) Mental retardation and domestic violence: An             of the Convention on the Elimination of All Forms of Discrimination against

ecological approach to intervention. Social Work, Vol.42, No.1. Women (CEDAW). Independent Report to the Committee on the Elimination of Discrimination against Women. Accessed online July 2010 at: http://

52   See for eg: Crawford, D. & Ostrove, J. (2003) Representations of Disability            www2.ohchr.org/english/bodies/cedaw/cedaws46.htm

and the Interpersonal Relationships of Women with Disabilities. Women &

Therapy, Vol. 26, No.3/4.                                            70   See for eg: the UN General Assembly, Universal Declaration of Human

Rights, 10 December 1948, 217 A (III); UN General Assembly, International

53   See for eg: Chang, J. et al (2003) Helping Women with Disabilities and                Covenant on Civil and Political Rights, 16 December 1966, 2200A (XXI); UN

Domestic Violence: Strategies, Limitations and Challenges of Domestic General Assembly, International Covenant on Economic, Social and Cultural Violence Programs and Services. Journal of Women’s Health, Vol.12, No.7. Rights, 16 December 1966, 2200A (XXI); UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 1854 See for eg: Calderbank, R. (2000) Abuse and Disabled People: vulnerability December 1979, 34/180; UN General Assembly, Convention on the Rights of or social indifference? Disability & Society, Vol.15, No.3. the Child, 20 November 1989, 44/25; UN General Assembly, Convention on

55  WWDA (2007b) Op Cit.                                                            the Rights of Persons with Disabilities, 24 January 2007, A/RES/61/106.

Gendering the National Disability Care and Support Scheme 29

End Notes

71   See CEDAW, Article 2.                                             84   See Article 6 [Women With Disabilities] of UN General Assembly,

Convention on the Rights of Persons with Disabilities: resolution/adopted by

72  UN Committee on Economic, Social and Cultural Rights (CESCR), General                                                                                      the General Assembly, 24 January 2007, A/RES/61/106, available at: http://

Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of www.wwda.org.au/hrcore1.htm the Covenant), 14 December 1990, E/1991/23, available at: http://www.

unhcr.org/refworld/docid/4538838e10.html [accessed 22 June 2010]        85    United Nations Office of the High Commissioner for Human Rights (2007)

From Exclusion to Equality: Realizing the rights of persons with disabilities.

73   The nine core human rights treaties are: International Convention on the                                                                      Handbook for Parliamentarians on the Convention on the Rights of

Elimination of All Forms of Racial Discrimination (ICERD); International Persons with Disabilities and its Optional Protocol. United Nations, Geneva. Covenant on Civil and Political Rights (ICCPR); International Covenant on

Economic, Social and Cultural Rights (ICESCR); Convention on the Elimination    86   See Preamble [q] of UN General Assembly, Convention on the Rights of

of All Forms of Discrimination against Women (CEDAW); Convention against Persons with Disabilities: resolution/adopted by the General Assembly, 24 Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment January 2007, A/RES/61/106. (CAT); Convention on the Rights of the Child (CRC); International Convention

87  UN Committee on Economic, Social and Cultural Rights (CESCR), General      on the Protection of the Rights of All Migrant Workers and Members of Their

Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of Families (ICRMW); International Convention for the Protection of All Persons the Covenant), 14 December 1990, E/1991/23, available at: http://www. from Enforced Disappearance (not yet in force); Convention on the Rights unhcr.org/refworld/docid/4538838e10.html [accessed 22 June 2010] of Persons with Disabilities (CRPD). Australia is a party to seven of these

treaties (the exceptions being ICRMW and International Convention for      88   See para 18 of CESCR General Comment 16: The equal right of men and

the Protection of All Persons from Enforced Disappearance). women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights).74 See para 4 of CEDAW General Recommendation 25: Article 4, paragraph 1,

of the Convention (Temporary Special Measures).                          89   See para 19 of CESCR General Comment 16: The equal right of men and

women to the enjoyment of all economic, social and cultural rights (art. 3 of75 See para 7 of CESCR General Comment 16: The equal right of men and the International Covenant on Economic, Social and Cultural Rights). women to the enjoyment of all economic, social and cultural rights (art. 3 of

the International Covenant on Economic, Social and Cultural Rights).         90   See para 21 of CESCR General Comment 16: The equal right of men and

women to the enjoyment of all economic, social and cultural rights (art. 3 of76 See para 8 of CEDAW General Recommendation 25: Article 4, paragraph 1, the International Covenant on Economic, Social and Cultural Rights).. of the Convention (Temporary Special Measures).

91    International Covenant on Civil and Political Rights (CCPR) General77   The United Nations Committee on the Elimination of Discrimination

Comment 28, Equality of rights between men and women (article 3); against Women (CEDAW) is an expert body established in 1982 and is CCPR/C/21/Rev.1/Add.10, General Comment No. 28, 2000. composed of 23 experts on women’s issues from around the world. It’s

role is to monitor performance of States parties in aligning national laws      92  UN Committee on the Rights of the Child (CRC), General Comment No.

and practices with CEDAW provisions. 9 (2006): The rights of children with disabilities, 27 February 2007, CRC/C/ GC/9, available at: http://www.unhcr.org/refworld/docid/461b93f72.html78 UN High Commissioner for Refugees (2009) Displacement, Statelessness [accessed 3 March 2010] and Questions of Gender Equality under the Convention on the Elimination of

All Forms of Discrimination against Women, August 2009, PPLAS/2009/02,       93    Each of the UN human rights treaty-monitoring bodies periodically

available at: http://www.unhcr.org/refworld/docid/4a8aa8bd2.html publishes documents known as General Comments or General [accessed 18 June 2010]. Recommendations, which provide guidelines for States Parties on the interpretation of specific aspects of the human rights treaty of concern79 See para 12 of CEDAW General Recommendation 25: Article 4, paragraph to the particular committee. General Comments clarify the content of 1, of the Convention (Temporary Special Measures). Covenant rights in more detail, may outline potential violations of those

80   See para 38 of CEDAW General Recommendation 25: Article 4, paragraph              rights and offer advice to states parties on how best to comply with their

1, of the Convention (Temporary Special Measures). obligations under the treaties.

81  UN Committee on the Elimination of Discrimination Against Women         94  UN Committee on the Rights of the Child (CRC), General Comment No.

(CEDAW), CEDAW General Recommendations Nos. 16, 17 and 18, adopted 9 (2006): The rights of children with disabilities, 27 February 2007, CRC/C/ at the Tenth Session, 1991 (contained in Document A/46/38), 1991, GC/9, available at: http://www.unhcr.org/refworld/docid/461b93f72.html A/46/38, available at: http://www.unhcr.org/refworld/docid/453882a322. [accessed 3 March 2010]. html [accessed 2 May 2008] 95 UN Committee Against Torture (CAT), General Comment No. 2:

82  UN High Commissioner for Refugees (2009) Displacement, Statelessness              Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/

and Questions of Gender Equality under the Convention on the Elimination of GC/2, available at: http://www.unhcr.org/refworld/docid/47ac78ce2.html All Forms of Discrimination against Women, August 2009, PPLAS/2009/02, [accessed 3 June 2010] available at: http://www.unhcr.org/refworld/docid/4a8aa8bd2.html

96   The Beijing Declaration and Platform for Action was adopted by member      [accessed 18 June 2010].

States at the Fourth World Conference on Women, held in Beijing from 4

83    Stubbs, D. & Tawake, S. (2009) Pacific sisters with disabilities: At the                     to 15 September 1995.

intersection of discrimination, Suva: UNDP Pacific Centre.

30 WOMEN WITH DISABILITES AUSTRALIA

97 United Nations (1998) Integrating the gender perspective into the work of 110 The six key policy areas identified in the NDS are: 1) Inclusive and

United Nations human rights treaty bodies. Report by the Secretary-General. accessible communities; 2) Rights protection, justice and legislation; 3) HRI/MC/1998/6, United Nations, Geneva. Economic security; 4) Personal and community support; 5) Learning and skills; and 6) Health and wellbeing. 98 See paras 52 & 53 - - United Nations General Assembly (2000) Resolution

adopted by the General Assembly: Further actions and initiatives to implement     111   Council of Australian Governments (2010) 2010–2020 National Disability

the Beijing Declaration and Platform for Action. Twenty-third special session, Strategy. Accessed online July 2010 at: www.alp.org.au/agenda/more-- A/RES/S-23/3. policies/draft-national-disability-strategy/

99    United Nations Economic and Social Commission for Asia and the           112  The Sex Discrimination Commissioner leads the work of the Australian

Pacific (ESCAP) (2002) Biwako Millennium Framework for Action towards Human Rights Commission to address gender-based discrimination, sexual an Inclusive, Barrier-free and Rights based Society in Asia and the Pacific. E/ harassment and other barriers to gender equality in Australia. See: www. ESCAP/APDDP/4/Rev.1. hreoc.gov.au/sex_discrimination/index.html

100   United Nations Economic and Social Commission for Asia and the Pacific     113   Broderick, E. (2008) Gender equality: What matters to Australian women and

(ESCAP) (2007) Biwako Plus Five: Further Efforts Towards an Inclusive, men. The Listening Tour Community Report Available online at: http://www. Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and hreoc.gov.au/sex_discrimination/listeningtour/index.html the Pacific. As adopted by the High-level Intergovernmental Meeting on

114    Broderick, E. (2010) Gender Equality Blueprint 2010. Australian Human      the Midpoint Review of the Asian and Pacific Decade of Disabled Persons,

Rights Commission, Sydney. 2003-2012, on 21 September 2007. E/ESCAP/APDDP(2)/2.

115  The new National Women’s Health Policy (NWHP) is due to be released101  The International Labour Organization (ILO) is devoted to advancing

in late 2010. More information on the NWHP is available online at: http:// opportunities for women and men to obtain decent and productive www.health.gov.au/womenshealthpolicy work in conditions of freedom, equity, security and human dignity. Its

main aims are to promote rights at work, encourage decent employment     116  Roxon, N. (2009) cited in Commonwealth of Australia (2009) Development

opportunities, enhance social protection and strengthen dialogue in of a new national women’s health policy: Consultation discussion paper. handling work-related issues. For more information, go to: http://www.ilo. Australian Government Department of Health & Ageing. Canberra. org/global/About_the_ILO/lang–en/index.htm 117 Commonwealth of Australia (2009) Development of a new national

102   International Labour Organization (ILO) (2006) Gender Equality and Decent          women’s health policy: Consultation discussion paper. Australian Government

Work: Selected ILO Conventions and Recommendations Promoting Gender Department of Health & Ageing. Canberra.

Equality. Bureau for Gender Equality and International Labour Standards

Department, ILO, Geneva.                                          118    Ibid.

103   International Labour Organization (ILO) (2009) Remove the obstacles! On     119  The Council of Australian Governments (COAG) is the peak

the right track to equality. Background brochure of the ILO public awareness intergovernmental forum in Australia. COAG comprises the Prime Minister, raising campaign on “Gender equality at the heart of decent work”. State Premiers, Territory Chief Ministers and the President of the Australian Accessed online at: http://www.ilo.org/public/english/gender/index.html Local Government Association (ALGA). The role of COAG is to initiate, develop and monitor the implementation of policy reforms that are of

104  Commonwealth of Australia (2010) Promoting Gender Equality through                 national significance and which require cooperative action by Australian

the Millennium Development Goals. Australian Agency for International governments. Development (AusAID), Canberra. 120 Council of Australian Governments (COAG) (2009) COAG Communique.

105   McClelland, R. (2010) Sex Discrimination Amendment Bill 2010: Second                Council of Australian Governments’ Meeting, 7 December 2009.

Reading. House debates [House of Representatives] Thursday, 24 June Accessed online March 2010 at: http://www.coag.gov.au/coag_meeting_

2010. Accessed on line July 2010 at: http://www.openaustralia.org/ outcomes/2009-12-07/index.cfm?CFID=575817&CFTOKEN=12861573 debates/?id=2010-06-24.15.1 121 Commonwealth of Australia (2009) Time for Action: The National Council’s

106   Cited in: Standing Committee on Legal and Constitutional Affairs (2009)               Plan for Australia to Reduce Violence against Women and their Children,

Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination 2009-2021. Department of Families, Housing, Community Services and and promoting gender equality, Commonwealth of Australia, Canberra. Indigenous Affairs (FaHCSIA), Canberra.

107  KPMG (2010) Review of the Equal Opportunity for Women in the Workplace     122   See: Office for Women: Whole of Government Influence, at: http://www.

(EOWW) Act 1999 Consultation Report. Department of Families, Housing, fahcsia.gov.au/sa/women/overview/ofw/Pages/WogInfluence.aspx Community Services and Indigenous Affairs (FaHCSIA), Canberra.

108 Commonwealth of Australia (2010) Australia’s Human Rights Framework. Attorney-General’s Department, Canberra.

109 Ibid.

Gendering the National Disability Care and Support Scheme 31

www.wwda.org.au

SEVENTYFIVE

DESIGN