Regulating Restraint and Seclusion in Australian Government Schools: A Comparative Human Rights Analysis

The misuse of restraint and seclusion in Australian primary and secondary schools has received considerable exposure in recent years. Several Australian jurisdictions have recently reviewed laws and policies governing their use in schools. Yet reports about the inappropriate use of these practices remain prominent and raise concerns about whether existing regulatory frameworks do enough to protect the rights of children with disabilities in schools. This paper undertakes the first comparative analysis of existing regulatory frameworks governing the use of restraint and seclusion in Australian government schools, both primary and secondary, and considers whether existing frameworks are compliant with international human rights obligations under the Convention on the Rights of Persons with Disabilities (‘CRPD’) and the Convention on the Rights of the Child (‘CRC’). The paper reveals substantial variation in regulation between jurisdictions, and demonstrates that significant reform is necessary to bring existing regulatory frameworks into alignment with human rights norms.

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Germany

10.1093/oso/9780198786627.003.0006 ◽

2018 ◽

Author(s):

Valentin Aichele

Keyword(s):

Human Rights ◽

International Law ◽

Direct Effect ◽

Federal Courts ◽

International Human Rights ◽

Persons With Disabilities ◽

Public International Law ◽

Monitoring Mechanism ◽

International Human ◽

Human Rights Norms

This chapter analyses the use and interpretation of the Convention on the Rights of Persons with Disabilities (CRPD) in sixty-nine decisions of German federal courts between 2009 and mid-2016. German courts’ failure to be proactive in demonstrating ‘friendliness towards public international law’ when dealing with international human rights norms has been criticised. The National CRPD Monitoring Mechanism addressed problems in the application of the law. This chapter investigates the courts’ understanding of basic CRPD concepts, judicial techniques, interpretation methods and specific CRPD provisions. The importance of the concepts of self-executing provisions and direct effect is discussed. In quantitative terms, German courts have referred to the CRPD more often than any other UN international human rights instrument. Furthermore, in qualitative terms, federal courts have become more receptive towards the CRPD. However, it is clear that much of the potential for courts to use the CRPD in the realisation of the rights of persons with disabilities remains untapped.

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Children with learning disabilities and their participation in judicial procedures – what can disability advocacy offer?

Tizard Learning Disability Review ◽

10.1108/tldr-10-2016-0035 ◽

2017 ◽

Vol 22 (1) ◽

pp. 10-15 ◽

Cited By ~ 1

Author(s):

Gábor Petri

Keyword(s):

Human Rights ◽

Learning Disabilities ◽

Design Methodology ◽

Access To Justice ◽

Self Advocacy ◽

Persons With Disabilities ◽

Content Type ◽

Rights Of The Child ◽

Judicial Procedures ◽

Article 5

Purpose The purpose of this paper is to provide a commentary on the paper titled “The Zone of Parental Control, The ‘Gilded Cage’ and The Deprivation of a Child’s Liberty: Getting Around Article 5”. Design/methodology/approach This paper uses the original article as a jumping off point to assess what aids advocacy organisations and human rights instruments can give to children with learning disabilities who enter legal procedures. Findings Existing human rights laws such as the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities provide innovative principles to reviewing existing policies, but little practical guidance is given to real implementation. Disability advocacy is ambiguous towards the question of representation of children with learning disabilities. Originality/value Literature on self-advocacy and especially on the self-advocacy and self-representation of children with learning disabilities is very limited. Access to justice for children with learning disabilities is similarly under-researched and is rarely addressed in disability advocacy.

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UN decision on Marlon Noble case: Imprisonment of an Aboriginal man with intellectual disability found unfit to stand trial in Western Australia

Alternative Law Journal ◽

10.1177/1037969x17694790 ◽

2017 ◽

Vol 42 (1) ◽

pp. 67-70 ◽

Cited By ~ 3

Author(s):

Fiona McGaughey ◽

Tamara Tulich ◽

Harry Blagg

Keyword(s):

Human Rights ◽

Intellectual Disability ◽

Sexual Assault ◽

United Nations ◽

Western Australia ◽

Current Policy ◽

Australian Government ◽

Persons With Disabilities ◽

Mentally Impaired ◽

Individual Human

On 23 September 2016, the United Nations (UN) Committee on the Rights of Persons with Disabilities found that the Australian government had breached its obligations under the UN Convention on the Rights of Persons with Disabilities. The case against Australia was brought by Marlon Noble, an Aboriginal man with an intellectual disability who was charged with sexual assault but found unfit to stand trial under the Mentally Impaired Defendants Act 1996 (WA). He was imprisoned indefinitely in 2001 and has been held in civil detention in the community since 2012. This article analyses the current policy and legislative context in Western Australia on this issue and reflects on Australia’s previous responses to individual human rights complaints to UN Committees.

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s.Three Contemporary Applications, 11 Human Rights and Non-Communicable Diseases: Controlling Tobacco and Promoting Healthy Diets

Foundations of Global Health & Human Rights ◽

10.1093/law/9780197528297.003.0012 ◽

2020 ◽

Author(s):

Toebes Brigit ◽

Patterson David

Keyword(s):

Risk Factors ◽

Human Rights ◽

Communicable Diseases ◽

Behavioral Risk ◽

Non Communicable Diseases ◽

Legal Obligations ◽

Healthy Diets ◽

Harmful Use ◽

Laws And Policies ◽

Human Rights Norms

This chapter explores how human rights norms, principles, and mechanisms can be applied to non-communicable diseases (NCDs). NCDs are now responsible for the vast majority of disease and death worldwide. There is widespread recognition that four behavioral risk factors are at the root of the major NCDs: tobacco use, unhealthy diet, lack of physical exercise, and the harmful use of alcohol. It is widely understood that law and policy measures, including bans and price measures, are important tools for implementing structural and risk avoidance strategies, changing unhealthy behaviors. Human rights scholars and practitioners increasingly emphasize the human rights dimensions of the NCD pandemic as a basis to develop laws and policies to address risk factors and prevent disease. This chapter outlines the current human rights dimensions and approaches to NCD risk factors and suggests opportunities to strengthen legal obligations to respond to NCDs, with an emphasis on controlling tobacco and promoting healthy diets.

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Mental health, human rights and social inclusion for adults and children

Mental Health and Social Inclusion ◽

10.1108/mhsi-02-2016-0008 ◽

2016 ◽

Vol 20 (2) ◽

pp. 67-73

Author(s):

Sue Holttum

Keyword(s):

Mental Health ◽

Human Rights ◽

Social Inclusion ◽

National Study ◽

Persons With Disabilities ◽

Content Type ◽

The Third ◽

Rights Of The Child ◽

Adults And Children ◽

The Difference

Purpose – The purpose of this paper is to consider three recent papers relating to human rights and applicable to adults or children given mental health diagnoses. Design/methodology/approach – The first paper discussed how to measure progress in different countries in their policy changes to abide by the UN Convention on rights of persons with disabilities, and discussed how all relevant groups could be involved. The second paper considered the problem of children’s rights being eroded by overuse of the mental health diagnosis of attention deficit hyperactivity disorder (ADHD) when they are restless. The third paper reported on an evaluation of how well advocacy services are enabling people who are sectioned to have a say in their care. Findings – When assessing how well countries are doing in ensuring the rights of people with disabilities, the first paper’s authors concluded that all groups must participate in the evaluation, even though there are many different agendas. The second paper reported on how professionals and parents could come to a shared understanding of how children might be wrongly given a diagnosis of ADHD and jointly suggested some solutions. The third paper illustrated how important advocacy is, and the difference it can make to the lives of people who are sectioned. Originality/value – The first paper’s authors are engaged in ground-breaking research to assess whether disabled people’s rights under the UN Convention are being honoured. The second paper raised vital questions about the misuse of diagnosis, contravening the UN Convention on the rights of the child, and illustrated how parents and professionals can come together in support of these rights. The third paper reported on the first systematic national study on the implementation of advocacy services to defend the rights of people who are sectioned to have a say in their care.

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Human Rights of Children with Disabilities in Israel - The Vision and the Reality

Disability Studies Quarterly ◽

10.18061/dsq.v29i1.172 ◽

2009 ◽

Vol 29 (1) ◽

Cited By ~ 4

Author(s):

Dina Feldman

Keyword(s):

Human Rights ◽

Inclusive Education ◽

Children With Disabilities ◽

Community Education ◽

Freedom Of Expression ◽

Equal Opportunities ◽

Font Size ◽

Basic Liberty ◽

Persons With Disabilities ◽

Rights Of The Child

<span style="font-size: 12pt; font-family: Arial; color: black;">The UN Convention on the Rights of the Child, from 1989, and the UN Convention on the Rights of Persons with Disabilities, from 2007, define a vision in which party States ensure the welfare of children with disabilities and their right to enjoy a full and respected life in the community, with their families, in conditions which meet their basic needs and ensure their ability to actualize their potential, enjoy basic liberty, freedom of expression, active and inclusive participation in the community life, based on equal opportunities. Approximately 8.7% of the children in Israel cope with functional challenges, disabilities or chronic diseases requiring constant intervention through medical or non medical care. The aim of the current article is to outline the international vision defined by the Conventions and the situation in Israel regarding the rights of children with disabilities to life, life with family in the community, education, health and accessibility – as legislated and as actually implemented. The article shows that Israel is committed to the international conventions and has invested much in legislation, budget and services for ensuring the social rights of children with disabilities in all areas of life. However Israel still faces the challenges of carrying out the paradigm shift towards the human rights model of disability in practice, by ensuring equal opportunities; by abolishing the poverty and discrimination of the geographical and social periphery; and by implementing inclusive education and accessible public areas and services to all.</span>

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Disability, Deprivation of Liberty and Human Rights Norms: Reconciling European and International Approaches

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v22i2.503 ◽

2017 ◽

Vol 2016 (22) ◽

pp. 76

Author(s):

Eilionóir Flynn

Keyword(s):

Human Rights ◽

Right To Health ◽

European Convention ◽

Font Size ◽

Right To Life ◽

International Human Rights ◽

Persons With Disabilities ◽

International Human ◽

Human Rights Norms ◽

Article 5

<p><span style="font-family: 'Helvetica',sans-serif; font-size: 12pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; mso-ansi-language: EN-GB; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;">Persons with disabilities are subject to unique forms of deprivation of liberty, often justified by reference to the need to protect their right to life, right to health, and to protect the human rights of others. This paper examines disability-specific forms of deprivation of liberty, particularly those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks. It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’ The challenges in attempting to comply with both provisions are illustrated through reference to developments in England and Wales. This paper also seeks to offer a way forward for States Parties to both Conventions, in order to protect the rights of persons with disabilities.</span></p>

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Human Rights and the Deaf Community in Ireland

Journal of Clinical Speech and Language Studies ◽

10.3233/acs-2011-18108 ◽

2011 ◽

Vol 18 (1) ◽

pp. 77-95

Author(s):

Avril Mullane ◽

John Bosco Conama ◽

Robert Fourie

Keyword(s):

Human Rights ◽

United Nations ◽

Special Educational Needs ◽

International Human Rights ◽

Persons With Disabilities ◽

Rights Of The Child ◽

United Nations Convention ◽

International Human ◽

The United Nations ◽

Education Act

Background: Deaf individuals are often subject to legislation expressing deafness in medical or disability terms, which neglects sociolinguistic domains. Objective: To evaluate Irish legislation relevant to Deaf individuals and the recognition of Irish Sign Language (ISL), in light of international human rights obligations. Method: The Equal Status Act (2000), The Equality Act (2004), The Disability Act (2005), The Education Act (1998), and The Education for Persons with Special Educational Needs (EPSEN 2004) were evaluated in the light of the Universal Declaration of Human Rights (UDHR, 1948), the United Nations Convention on the Rights of the Child (1990), and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD, 2008), with particular reference to sociolinguistic issues affecting Deaf communities in Ireland. Results and conclusion: The sociolinguistic rights of Irish Deaf communities are not explicitly safeguarded within current Irish law because lawgivers have failed to adequately consult these communities when constructing legislation.

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Navigating the Tensions: Women’s Rights, Religion and Freedom of Religion or Belief

Religion and Human Rights ◽

10.1163/18710328-bja10019 ◽

2021 ◽

Vol 16 (2-3) ◽

pp. 67-92

Author(s):

Nazila Ghanea

Keyword(s):

Human Rights ◽

Women's Rights ◽

Freedom Of Religion ◽

Women’S Rights ◽

International Human Rights Law ◽

International Treaties ◽

Advocacy Groups ◽

Rights Of The Child ◽

Women's Equality ◽

Human Rights Norms

Abstract Despite the normative integration between freedom of religion or belief (FORB) and women’s equality, these synergies are difficult to discern and there is a common misperception that women’s rights to equality and FORB are clashing rights. This is compounded by the extensive religiously phrased reservations by states upon ratification of international treaties that amplify this misperception that FORB serves to restrict women’s rights to equality. The advocacy groups supporting these rights, and also their normative sources in international human rights law instruments, are largely distinct. However, general non-discrimination provisions do address both, and General Comment no. 28 captures both rights holistically. The correctives to these misperceptions lie in reflecting upon the universality, indivisibility, interdependence, and interrelatedness of all human rights norms. They also lie in the realization that FORB is a right like any other. FORB is neither a right of “religion” as such nor an instrument for support of religiously phrased reservations and limitations on women’s rights to equality. This is particularly the case with harmful practices, as elaborated in the joint general recommendation/General Comment no. 31 of the Committee on the Elimination of All Forms of Discrimination against Women and no. 18 of the Committee on the Rights of the Child however, the core principles also extend to other infringements of women’s rights to equality. It is essential to (re)vitalize the synergies between FORB and women’s equality in order to advance each of these rights, to be able to address overlapping rights concerns, and to adequately acknowledge intersectional claims. Furthermore, the relevant advocacy groups and human rights mechanisms need to give further attention to this as a priority matter.

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The Right To Work in Article 27 Of The Un-Convention On The Rights of Persons With Disabilities: Towards An Inclusive Employment

Negara Hukum Membangun Hukum untuk Keadilan dan Kesejahteraan ◽

10.22212/jnh.v9i2.1024 ◽

2019 ◽

Vol 9 (2) ◽

pp. 235-252

Author(s):

Yeni Rosdianti

Keyword(s):

Human Rights ◽

Social Inclusion ◽

Modern Human ◽

Structural Barriers ◽

United Nation Convention ◽

Persons With Disabilities ◽

Right To Work ◽

Human Rights Norms ◽

The Right ◽

Inclusive Society

Work is essential for every human being, not only in economic meaning, but also in the sense of dignity. It guarantees to sustain life and also a tool of inclusion as a vital social relationship in a society. Dignity outlines the principle of equality to form an inclusive society. Thereunto, a social inclusion is an objective whereby disadvantaged groups are fully respected yet enjoying their maximum equal participation in the society. Social inclusion is the ultimate goal of disability movements. In this respect, human rights play its crucial roles to acknowledge the rights of persons with disabilities which centered on an equality and non-discrimination principles. United Nation Convention on the Rights of Persons with Disabilities (hereinafter CRPD), that has been ratified by Indonesian Government in 2011, draws the enormous attention specifically on the protection of the persons with disabilities within a broad application of general human rights norms. This treaty is considered as a modern human rights model of disability. With respect to work and employment for persons with disability, article 27 elucidates a development of the right to work of persons with disabilities to aim an inclusive employment. For this reasons, CRPD acknowledges the positive measures to be applied as the vigorous means in removing structural barriers to date. Abstrak“Bekerja” memegang peranan penting dalam kehidupan umat manusia, tidak hanya dalam arti ekonomi namun juga bermakna pemuliaan martabat manusia. Bekerja, selain dapat menjamin penghidupan, juga merupakan alat pencapaian inklusi dan partisipasi setara dalam relasi sosial. Martabat manusia menjadi landasan prinsip kesetaraan untuk membentuk masyarakat inklusif dimana kelompok rentan secara penuh dihormati hak-haknya hingga dapat berpartisipasi secara maksimal di tengah-tengah masyarakat. Hak Asasi Manusia (HAM) memegang peranan penting dalam hal ini, khususnya terkait dengan pemajuan hak-hak penyandang disabilitas dalam kerangka prinsip-prinsip kesetaraan dan non-diskriminasi. Konvensi Persatuan Bangsa-Bangsa tentang Hak-hak Penyandang Disabilitas (Atau selanjutnya disebut CRPD) yang telah diratifikasi oleh Pemerintah Indonesia pada tahun 2011, meletakkan dasar yang kokoh bagi perlindungan hak-hak penyandang disabilitas dalam penerapan kaidah-kaidah dasar HAM. Konvensi ini dianggap sebagai model disabilitas terkini yang mengacu pada pendekatan HAM. Terkait dengan hak atas pekerjaan khususnya untuk penyandang disabilitas, pasal 27 CRPD meletakkannya dalam rangka mencapai dunia kerja yang inklusif dan setara. Untuk itu, CRPD mendorong langkah-langkah positif (positive measures) sebagai sarana menyingkirkan hambatan struktural yang dihadapi oleh penyandang disabilitas selama ini.

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