Multicultural Council of the Northern Territory

The Multicultural Council of the Northern Territory

Comments on the Exposure Draft

Australia’s National Human Rights Action Plan

The Multicultural Council of the Northern Territory Inc

PO Box 299

Karama NT 0813

29th February 2012

Introduction – the Multicultural Council of the Northern Territory

Established in 1977, the Multicultural Council of the Northern Territory (MCNT), based in Darwin, is the local peak body for multiculturalism as well as a service provider for individuals and families from culturally and linguistically diverse communities with many members and clients from non-English speaking backgrounds. For more than 30 years as a socially aware NGO, the MCNT has acted as a key liaison agency at the interface between migrant and refugee communities, the government and the wider community.

The MCNT receives operational funding from the Northern Territory Government through the Office of Multicultural Affairs and project funding from the Commonwealth Government: the Department of Immigration and Citizenship (DIAC) and the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) to facilitate self-reliance and participation for recently-arrived migrants and refugees and encourage their settlement, inclusion and integration within the Australian economy and society.

Background to these comments on the Exposure Draft

The MCNT has a strong commitment to community development, social justice and empowerment with the primary aim to identify and address barriers to cultural inclusion and social and economic participation for our new settlers. The MCNT celebrates cultural diversity and invites project stakeholders and engages the wider community to identify and address social cohesion issues that are generic as well as Territory-specific.

The MCNT consults regularly with community leaders and representatives and maintains dialogue with national peak bodies to identify human rights issues and to ascertain evolving and emerging settlement needs for our clients from culturally and linguistically diverse (CALD) background, particularly recently arrived humanitarian entrants. Over a number of years the MCNT has developed close working relationships in Darwin with various emerging African communities and more recently the Bhutanese, Burmese-Karen, Burmese-Rohingya and Afghan-Hazara refugee communities.

The MCNT’s original submission to the Attorney-General’s Department for the National Human Rights Action Plan Baseline Study Consultation Draft on Friday 16th September 2011 focused on three human rights issues impacting on the MCNT’s CALD clients and relevant to Chapter 3.10: Refugees, asylum seekers and migrants: the Citizenship Test, Income Management and culturally appropriate aged care in the Consultation Draft.

Invitation for Public Comments to the Exposure Draft of Australia’s National Human Rights Action Plan

The MCNT welcomes the opportunity to respond to the Exposure Draft of Australia’s new National Human Rights Action Plan which was launched for public consultation on Friday 9th December 2011 and applauds the general direction of the Human Rights Plan. The MCNT is concerned however that there is discrimination exercised against people of CALD backgrounds with disability within Australia’s Refugee and Humanitarian Program, as well as with CALD background people and within the migration program more generally.

The MCNT’s comments in this submission focus on human rights issues for Australians fromCALD backgrounds with disability and are largely based on human rights issues highlighted in the June 2010 report from the Joint Standing Committee on Migration: “Inquiry into the Migration Treatment of Disability: Enabling Australia” and relevant recent advocacy from three peak bodies: the National Ethnic Disability Alliance (NEDA), the Refugee Council of Australia (RCOA) and the Federation of Ethnic Communities’ Councils of Australia (FECCA).

It has long been an expressed aim of the MCNT “to achieve a truly inclusive multicultural society where diversity is celebrated and where there is no discrimination and disadvantage based on race, gender, sexual orientation, disability, religion, culture and language”. The MCNT’s national peak body FECCA aims to “address myths, misconceptions and negative stereotypes in the general community and from within some migrant communities through community education programs and a disability awareness campaign which give a positive image and portrait achievements of ethnic people with a disability”.

Migration, Disability Discrimination and Human Rights

Specifically the MCNT is concerned that disability discrimination for Australians from CALD backgrounds results through the on-going application of the exemption of the Migration Act 1958and Migration Regulations 1994from section 52 of the Disability Discrimination Act 1992. This exemption, apparently implemented as a safeguard against “excessive social and economic costs” resulting from a non-discriminatory Australian immigration policy, effectively ensures that migrants and refugees with disability are considered a cost burden and not offered the same protections from discrimination as other Australian residents and citizens that apply to other areas of Australian law.

The section 52 exemption in effect has a number of impacts on undermining fundamental human rights of CALD background people with disability. Potential migrants and refugees to Australia are subject to a health assessment in order to determine their eligibility for settlement. Many migrant and refugee families supporting a person with disability are either excluded from entry to Australia or need to make the difficult decision to leave behind a family member in order to build a new life in Australia.

Furthermore migrants with disability granted visa status (except for those immigrating on humanitarian grounds) must also wait ten yearsbefore being eligible for the Disability Support Pension (DSP). These eligibility constraints impose on migrants for the DSP affects eligibility for other programs and benefits from a range of essential disability services and equipment that are available to other Australian residents with disability.

As NEDA asserts – with the backing of legal advice released in July 2008 – that the ten year qualifying period for the DSP is in conflict with Australia’s obligations from ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPR).In NEDA’s view, the ten year qualifying period for the DSP is both unfair and discriminatory.

It is clear that section 52 of the Disability Discrimination Act 1992 exempts migration laws, regulations,policies and practices, from the effects of the Act, leading to negative impacts and decisions for CALD background people with disability residing in Australia.

The Joint Standing Committee in its report of June 2010 recommended “that as part of its proposal to amalgamate Australian discrimination law, the Australian Government review the Disability Discrimination Act 1992 (Cth) with particular reference to the section 52 migration exemption, to determine its legal implications for migration administration and conduct expert consultations on its impact on people with a disability”.

The MCNT notes that this exemption and its implications are not referred to in the Human Rights Exposure Draft, and furthermore that the section from page 43 “Refugees, asylum seekers, migrants and people from culturally and linguistically diverse backgrounds” does not specifically refer to people from CALD backgrounds with disability.

It has been estimated that by NEDA that there are at least 1 million people from CALD backgrounds with disability in Australia – a considerable constituency. FECCA, from various social determinants, classifies disability as manifesting “multiple disadvantage” for its constituency in terms of social inclusion and access to culturally appropriate and competent service provision. In particular, FECCA has identified women from multicultural backgrounds with disabilities as experiencing “multiple disadvantages” and discrimination in Australian society “with a corresponding degree of vulnerability in the workplace”.

The MCNT’s Recommendations about Australian Migration Law and Disability

The MCNT believes, along with FECCA and NEDA in terms of the CRPD and the Disability Discrimination Act 1992 that “it is a fundamental human right for people with disability not to be discriminated against on the basis of their disability”.

The MCNT would urge consideration by the Attorney-General’s Department of the human rights issues outlined in this submission and ensure that all people have access to the inherent rights guaranteed by the CRPR.

It is the MCNT’s view that the current perception and social construct of people from CALD backgrounds with disability as a significant “cost burden” to the wider community should be replaced by a rights based and socially inclusive approach that recognises the positive contributions of migrant and refugee individuals and families to Australia.

The MCNT recommends that the Migration Act 1958, Migration Regulations 1994 and the Disability Discrimination Act 1992 be appropriately amended to ensure greater scope for decisions based on compassionate and compelling grounds and that the principles of equity and non-discrimination apply to all aspects of migration law, policy and practice for migrants and refugees residing in Australia.