Observing legislative processes: implementation of UNCRPD

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) came into effect on May 3, 2008 (United Nations 2013). In September 2008 Austria ratified the UNCRPD (Federal Law Gazette III 47/2011). One of the leading principles of the UNCRPD is to ensure the right of self-determination which includes that people with mental disabilities are assumed as capable of claiming their rights and making decisions based on their own free and informed consent. Article 12 UNCRPD guarantees the full equal recognition before the law. In order to create accordance with the UNCRPD the Austrian Ministry of Justice is revising the regulations on legal guardianship (Sachwalterschaft). The duration of the process was named by the Ministry of Justice with February 2014 to February 2016. Working groups with representatives of several interest groups will evaluate which (legal) changes are needed and will develop reform draft. The working groups will not only include legal experts but as the UNCRPD requires the inclusion of people protected by the Convention within all matters by which they might be concerned they need to be part of the revising and reforming process. Within the proposed research project the whole genesis of the legal reform of the Austrian legal regulations concerning legal guardianship shall be monitored. Suggestions on what can be improved within the revising and reforming process itself in order to efficiently fulfil the requirements of the UNCRPD within the legislative procedure shall be developed. The (self-)representation of persons with disabilities within the observed legislative process shall be evaluated and compared with their (self-)representation within the implementation process of the UNCRPD in New Zealand and Germany. As New Zealand was one of the leading countries regarding the self-representation of persons with disabilities during the development of the UNCRPD on national and on international level (e.g. Moriarity/Dew 2011) the evaluation of the inclusion of persons with disabilities in legislative processes can be expected for giving fruitful insights for other countries. Germany was chosen as the legal system and regulations on the legal guardianship are comparable to the Austrian ones. The main research questions which should be answered within the proposed project are: How must a legislative process be designed in order to fulfil the requirements of the UNCRPD? To what extent were these requirements met by the observed legislative process? Which indicators can be identified with respect to the evaluation of the final outcome? To answer these questions a set of different research methods including traditional legal approaches, interview techniques and participant observation are to be applied. Using these methods allows creating necessary empirical evidence on a qualitative base. The project proposed may be classified as basic research.

The research of the University of Innsbruck deals with the participation processes pursuant to Article 4 (3) and Article 33 (3) of the Convention on the Rights of Persons with Disabilities (CRPD). These provisions allow for persons with disabilities and their representative organizations to be involved, not only in the preparation of laws and other political programs, but also in the national monitoring mechanism of the Convention. In Austria (ratification in 2008) the Federal Chancellery developed a practice guide called "standards of the public participation", which received, however, little recognition. On different occasions, types of participation and involvement of civil society varied considerably. In Austria, the process of reforming the guardianship law was examined specifically. During the period from the end of 2013 to June 2016, a participation process of people with disabilities and their representative organizations took place. Small and large working groups were held by the Federal Ministry of Justice. In general, this process has been positively evaluated although some criticized it for being not transparent enough and for lacking a corresponding financial support for the participants. Overall however, the participants were satisfied with their participation. The National Monitoring Committee was set up to monitor implementation of the Convention.In Germany, researchers supervised the origination process of the Federal Law on Participation concurrently. This is where disabled organizations participated actively. However, participation of disabled persons in national legislative procedures is also not a consistent and standardized process. The establishment of an interdisciplinary working group and the organization of regular working meetings were welcomed, with the financial aspect, among others, being a problem though. Germany founded an alliance to observe the implementation of the Convention. It consists of disabled persons organizations and different civilian actors in the disabled area. This alliance drafted the parallel report for the German state examination. The German Institute for Human Rights is the home of the National Monitoring Centre and is very dedicated to involving stakeholders.New Zealand (ratification in 2008) began organizing state institutions in compliance with the Convention early on. The commitment of the government and other government agencies through the Rules of Engagement was a particular achievement. These guidelines were meant to ensure a structured and comprehensive co-operation between government agencies and disabled organizations. Yet New Zealand law is not fully in line with the Convention. The independent monitoring mechanism and the participation of Disabled Person's Organizations can be mentioned as a positive example of the implementation of Article 33 (3) CRPD.Australia (ratification in 2008), like Austria and Germany, does not have a uniform approach to involve people with disabilities in the participation process. Disability organizations from all over the country were involved in the development of the Australian "Shut Out Report" (2009). In 2014, the state funding of disability organizations was amended. The leading organizations formed an alliance. Organizations of people with disabilities participated actively in the legislative process on the National Disability Insurance Scheme (NDIS). All in all, there are many positive examples of the initial implementation of the participatory provisions in legislation and monitoring areas in all countries that were compared. However, serious work needs to be done in order to resolve various issues and problems concerning the active participation of people with disabilities.