Despite the existence of the United Nations Convention on the Rights of Persons with Disabilities (UN, 2006), which has been signed and ratified by the Australian Government, major challenges remain for people with intellectual disability in realising some of their most fundamental human rights. The rights to self-determine a wide range of life choices (including place of residence, choice of co-residency, choice to access the legal justice system, choice in service providers and many fundamental day-to-day life choices) are enormously restricted for many people with intellectual disability.
From the theoretical perspective of the ‘social model’ of disability, it is society’s response to disability that denies the human rights and self-determination of people with intellectual disability. In other words, it is not the person’s disability that causes their exclusion and its associated injustices, but rather the way that a society or community responds to people with intellectual disability (and the extent to which this response values their rights and needs as community members). The lens of this ideology encourages questioning about the fundamental changes that need to be made in the practice of individuals, and on a societal scale.
The former Australian Federal Human Rights Commissioner and Disability Discrimination Commissioner Dr Sev Ozdowski OAM (2002) explains:
This social dimension of rights is particularly clear for rights for people with disabilities. A person with an intellectual disability may have more difficulty understanding information. But whether they can succeed in understanding may depend on the social context – how information is provided and what assistance is available – rather than being a purely personal issue of level of impairment. Why should we accept that this is just another instance of ‘unmet needs’ instead of naming it for what it is – a lack of sufficient action to ensure the human rights which as a nation we claim to be committed to. Of course there are limits to government resources. And calls for expansion of the welfare state are very much out of fashion. But we are not really talking about welfare here. We are not only talking about ‘unmet needs’. We are talking about resources to enable people to enjoy free and equal citizenship. To participate in society. In fact, in many cases we are talking about resources to enable people to contribute and be productive, rather than being dependent on more passive forms of welfare assistance.
In reality, many of the challenges that are apparent in the ‘lived experience’ of people with intellectual disability are the result of a lack of recognition and commitment to upholding the human rights of people with a disability. For example, Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (UN, 2006) states that:
Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others … in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
The over-representation of people with intellectual disability as victims of crime and as suspects, defendants and offenders within the criminal justice system is testament to the inaccessibility of justice for people with intellectual disability in Australia (French, 2007). People with intellectual disability are often limited in their capacity to benefit from the instruments of law and the protections that it provides due to the fundamental structures of the legal system which (inadvertently or otherwise) fail to understand and accommodate the needs of people with intellectual disability as citizens.