Disability no justification for inequality

As with other human rights treaties, the Preamble of the Disability Convention states that: 'the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination.' It is not possible to weaken or water down one human right because all human rights are universal, indivisible, interdependent and interrelated. (It is equally true that one human right cannot be more important than another.)

The second reason that I feel that legal equality is fundamental to all other human rights is that it establishes a baseline for negotiating compromises for the accommodation of conflicting human rights and for understanding notions of discrimination. Legal equality removes any misconceptions that some people are inheritably more equal than others (in George Orwell's terminology).

Legal equality is also fundamental to legal dispute resolution. Parties to a contract, for instance, must have equality under the law in order for the contract to be free from coercion and undue influence. Moreover, as people such as John Locke have argued, legal equality among adult citizens is critical for the legitimacy of any democratic system of government.

This does not mean, of course, that every single individual within the community will have the same legal rights as everybody else. Rather, it means that if two, or more, individuals find themselves in a very similar legal situation, then the law will be consistent in how it is applied to each individual.

Disability Convention, Article 12 (Equal recognition before the law)

Article 12 of the Disability Convention, as drafted by the General Assembly of the United Nations, recognising that all humans are equal before the law. More specifically, Article 12, paragraph 2, requires state parties to recognise 'persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life'.

Then paragraph 3 requires that state parties take appropriate measures to provide access to the support they may require in exercising their legal capacity'. Paragraph 4 then requires that the appropriate measures employed to assist the person to enjoy his/her legal capacity be specifically tailored to be as minimal as possible, designed to meet the individual's needs, and to be limited to the time that the individual needs the support. These supports are also to be designed to avoid conflicts of interest and the possibility of abuse.

Australia's interpretation of Article 12

In its National Interest Analysis for the United Nations Convention on the Rights of Persons with Disabilities (National Interest Analysis [2008] ATNIA 18 ) (par 17), the Australian Government stated that: Article 12 does not prohibit substituted decision-making arrangements that provide for decisions to be made on behalf of a person with disability where necessary, as a last resort and subject to the safeguards in Article 12(4).

This view is repeated in Australia's Declaration :

Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards

The problem with Australia's interpretative declaration