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DISABILITY HUMAN RIGHTS CLINICS AS A MODEL FOR TEACHING
PARTICIPATORY INTERNATIONAL HUMAN RIGHTS LAWYERING
Yvette Maker, University of Melbourne, Australia
Jana Offergeld, Evangelische Hochschule RWL (Protestant University of Applied
Sciences RWL), Germany
Anna Arstein-Kerslake, University of Melbourne, Australia
Introduction
The Disability Human Rights Clinic (DHRC) was established at Melbourne Law
School, the University of Melbourne, in 2015. Its supervisors and students conduct
legislative and policy reform projects as well as strategic litigation. The DHRC was
created by Anna Arstein-Kerslake to address a significant lack of resources in
community-based organisations to undertake in-depth legal analysis. It uses an
innovative model of clinical legal education to harness the skills of law students
to fill that gap and to expose a new generation of lawyers to the emerging field of
disability human rights law.1 In this article, we draw on our experiences running the
DHRC to argue that the model it establishes can create significant scholarly output
in the human rights field,
1 Yvette Maker has worked as a Research Fellow with Anna Arstein-Kerslake since the inception of
the clinic in 2015. She assists in leadership, supervision, and teaching. Jana Offergeld is a Research
Fellow at Bochum University of Applied Sciences in Germany and she spent a semester in 2016 as a
Visiting Research Fellow in the clinic. She assisted in supervision and teaching.
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24
direct engagement with the community, and rich doctrinal and experiential learning
for students.
The work of the DHRC is guided by the United Nations Convention on the Rights of
Persons with Disabilities (CRPD).2 The CRPD obliges governments around the world to
respect, protect and fulfil the civil, political, economic, social and cultural rights of
persons with disabilities. The CRPD emerged as a response to persistent and serious
violations of the human rights of persons with disabilities worldwide.3 It does not
create any rights that were not already guaranteed under existing human rights
instruments, including the Universal Declaration of Human Rights,4 the International
Covenant on Civil and Political Rights (ICCPR),5 and the International Covenant on
Economic, Social, and Cultural Rights (ICESCR).6 However, the CRPD does enumerate
them in a novel manner, specifically tailored to the barriers that persons with
disabilities face to the realisation of their human rights.7 The creation and passage of
the CRPD was a victory for the international disability rights movement, with persons
with disabilities and their representative organisations playing a major role in the
2 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3
(entered into force 3 May 2008) (‘CRPD’).
3 Gerard Quinn, ‘The United Nations Convention on the Rights of Persons with Disabilities: Toward a
New International Politics of Disability’ (2009) 15(1) Texas Journal on Civil Liberties & Civil Rights 33–52,
37–39; Paul Harpur, ‘Embracing the New Disability Rights Paradigm: the Importance of the
Convention on the Rights of Persons with Disabilities’ (2012) 27(1) Disability & Society 1–14, 4.
4 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948
.
5 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171 (entered into force 23 March 1976, except art 41, which entered into force 28 March 1979).
6 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December
1966, 993 UNTS 3 (entered into force 3 January 1976).
7 For a discussion, see Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing
the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1, 3–4.
http://www.un.org/en/universal-declaration-human-rights/
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25
initiation and drafting of the instrument.8 The role of persons with disabilities did not
end when the CRPD entered into force in 2008; the CRPD obliges governments to
involve them in all aspects of implementing the CRPD and monitoring the rights and
circumstances of persons with disabilities.9
In this article, we argue that clinical legal education offers a valuable avenue to pursue
the implementation of the CRPD at the local and national level, and particularly to
support persons with disabilities and their representative organisations to advocate
for their rights and participate in the CRPD implementation and monitoring process.
At the same time, it can provide rich experiential learning to students and meet
universities’ goal of engaging more meaningfully with the community. As Evans and
his colleagues note, while traditional clinical legal education in Australia ‘places
students in the role of lawyers representing clients with legal questions or problems’,
the meaning of clinical legal education has evolved in recent decades.10 It now
encompasses a wide range of models that share the ‘common element… [of] “real”
experiences’,11 and the model developed in the DHRC joins this growing range of
innovative approaches that combine ‘student learning, community service,
professional engagement, research and policy development’.12
8 Ibid.
9 CRPD arts 4(3), 31, 33(3).
10 Adrian Evans, Anna Cody, Anna Copeland, Jeff Giddings, Peter Joy, Mary Anne Noone and Simon
Rice, Australian Clinical Legal Education (ANU Press, 2017) 41
/.
11 Ibid.
12 Ibid, 36 and citing Jeff Giddings, Promoting Justice Through Clinical Legal Education (Justice Press,
2013) 39–73.
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Addressing the history of marginalisation using a human rights framework
Disability research is a unique area because it deals with a group of people who are
often marginalised, and research itself has played a role in that marginalisation by, for
instance, treating persons with disabilities as objects of scientific study, supporting or
justifying rights violations like segregation and invasive medical ‘treatment’, and
failing to take into account the priorities and concerns of persons with disabilities in
designing and conducting research.13 A clinic focused on research related to the rights
of persons with disabilities must openly recognise this history of marginalisation and
must structure itself in such a way that combats marginalisation in both its
methodology and the content of its outputs. One of the key ways in which we employ
emancipatory methods is the use of the CRPD as the framework for the curriculum
and projects of the DHRC.
The CRPD is one of the most recent United Nations human rights treaties. It
establishes that ‘disability results from the interaction between persons with
impairments and attitudinal and environmental barriers that hinders their full and
effective participation in society on an equal basis with others’.14 These barriers
include a lack of accessible facilities and services, stigma and discrimination, and
insufficient funding of services and supports. Such barriers produce and perpetuate
13 Mike Oliver, ‘Changing the Social Relations of Research Production?’ (1992) 7(2) Disability, Handicap
& Society 101–114 ; Emma Stone and Mark Priestley, ‘Parasites, Pawns and Partners: Disability
Research and the Role of Non-disabled Researchers’ (1996) 47(4) British Journal of Sociology 699–716,
700–701; Jan Walmsley and Kelley Johnson, Inclusive Research with People with Learning Disabilities:
Past, Present and Futures (J. Kingsley Publishers, 2003).
14 CRPD Preamble para (e).
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the marginalisation of persons with disabilities in many spheres of life and contribute
to the high rates of human rights violations of persons with disabilities around the
world. For example, the World Health Organization reports that persons with
disabilities have poorer health outcomes, lower educational achievements, less
economic participation and higher rates of poverty than persons without disabilities.15
Persons with disabilities are frequently subject to exclusion and segregation in many
areas of life, such as education, employment and accommodation.16 The ability of
persons with disabilities to live independently and to be included in the community
is often questioned, especially for persons with cognitive disability.17 Another crucial
issue is the ongoing legal practice in most parts of the world of restricting a person’s
legal capacity on the basis of disability.18 This denial of legal capacity is commonly
coupled with the legitimation of ‘substituted decision-making’ by third parties, for
15 World Health Organisation, Summary World Report on Disability (Report, World Health
Organisation, 2011) 10-12
.
16 See for example Australian Government, Shut Out: the Experience of People with Disabilities and their
Families in Australia (National Disability Strategy Consultation Report, Commonwealth of Australia,
2009) ;
Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Periodic
Report of Montenegro, 18th sess, UN Doc CRPD/C/MNE/CO/1 (22 September 2017) paras 14, 36(c);
Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of
Luxembourg, 18th sess, UN Doc CRPD/C/LUX/CO/1 (10 October 2017) paras 42, 48; Committee on the
Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Serbia, 15th sess, UN
Doc CRPD/C/SRB/CO/1 (21 April 2016) para 13; Committee on the Rights of Persons with Disabilities,
Concluding Observations on the Initial Report of the European Union, 14th sess, UN Doc CRPD/C/EU/CO/1
(2 October 2015) para 22.
17 Jenny Morris, ‘Independent Living and Community Care: A Disempowering Framework’ (2004)
19(5) Disability & Society 427–442, 431–2.
18 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal
Recognition Before the Law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014) para 8. For a discussion, see
Author 2017.
http://apps.who.int/iris/bitstream/10665/70670/1/WHO_NMH_VIP_11.01_eng.pdf/
https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-research/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia
https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-research/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia
Reviewed Article – Clinic, the University and Society
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example, where a person can be involuntarily admitted and treated in a psychiatric
facility on the basis of an assessment of their ‘best interests’, or where a legal guardian
can be appointed to make financial, healthcare, lifestyle, or other decisions on the
person’s behalf.19 Other fundamental civil and political rights, such as the right to vote
or protection from arbitrary deprivation of liberty, are restricted or fully denied
because of impairment in many countries.20
The persistence of these barriers globally, coupled with decades of advocacy and
activism by persons with disabilities, led to the creation of the CRPD to ‘promote,
protect and ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities, and to promote respect for their inherent
dignity’.21 As noted above, the international disability community played a key role
in advocating for a human rights treaty on disability, and a variety of national and
international Disabled Persons’ Organisations (DPOs) contributed to the development
and passage of the Convention. DPOs are civil society organisations controlled and
led by persons with disabilities. They comprise a range of local, national and
international non-government organisations with ‘the aim of collectively acting,
19 Ibid, paras 7, 27, 42.
20 See for example the European Union Agency for Fundamental Rights’ (FRA) reports on the right to
political participation and violence against children: FRA, The Right to Political Participation of Persons
with Mental Health Problems and Persons with Intellectual Disabilities (Report, FRA, 2010)
; FRA, Violence Against
Children with Disabilities: Legislation, Policies and Programmes in the EU (Report, FRA, 2015)
.
21 CRPD art 1.
http://fra.europa.eu/sites/default/files/fra-2010-report-vote-disability_en.pdf
http://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-violence-against-children-with-disabilities_en.pdf
http://fra.europa.eu/sites/default/files/fra_uploads/fra-2015-violence-against-children-with-disabilities_en.pdf
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29
expressing, promoting, pursuing and/or defending a field of common interest’. 22 The
drafting process was driven by active participation of DPOs and other civil society
actors to a greater extent than other treaties.23 The CRPD was adopted in 2006 and
entered into force on 3 May 2008. As of March 2018, 176 States are party to it.24
While the international disability rights movement has emphasised that persons with
disabilities do not ask for special rights, the CRPD addresses specific challenges and
human rights issues that are unique to the situation of persons with disabilities. They
include, for example, equal recognition before the law and the prohibition of all forms
of discrimination on the basis of disability;25 taking appropriate measures to ensure
equal access to the physical environment, transportation, information and
communications technologies, and other systems and facilities;26 ensuring against
unlawful or arbitrary deprivation of liberty;27 realizing the right to inclusive
education;28 and guaranteeing equal enjoyment of political rights, including the right
to vote and be elected.29
22 United Nations General Assembly, Report of the Special Rapporteur on the Rights of Persons with
Disabilities, 31st sess, UN Doc A/HRC/31/62 (12 January 2016) para 36
.
23 See Kayess and French, above n 7.
24 Office of the High Commissioner for Human Rights, United Nations, Status of Ratification Interactive
Dashboard (13 March 2018) .
25 CRPD arts 5, 12.
26 CRPD art 9.
27 CRPD art 14.
28 CRPD art 24.
29 CRPD art 29.
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session31/Documents/A_HRC_31_62_E.doc
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session31/Documents/A_HRC_31_62_E.doc
http://indicators.ohchr.org/
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30
One of the guiding principles of the international disability rights movement, ‘nothing
about us without us’, demands that all matters affecting persons with disabilities
should involve persons with disabilities in positions of leadership and control.30 The
CRPD reflects this, explicitly obliging States to closely consult with, and actively
involve, persons with disabilities and DPOs in the development and implementation
of the CRPD (art 4), and in monitoring that implementation (art 33).31
This requirement to meaningfully include persons with disabilities applies to research
that assesses the status quo in regard to the human rights situation of persons with
disabilities, analyses relevant legal, political and social structures, and informs
necessary policy and law reform. Historically however, as we noted above, research
on disability has been conducted from a medical and deficit-oriented perspective,
focusing on individual impairments and identifying approaches to ‘fix’ or ‘cure’ them.
This is often referred to as a ‘medical model’ approach to disability.32 While medical
research on impairment and human functioning is of course valuable for some
purposes, the societal barriers facing persons with disabilities are complex and multi-
faceted, and cannot be redressed through medical research alone. In their role as
objects of research, persons with disabilities have often been placed in a position of
30 Kayess and French, above n 7, 12; Paul Harpur, ‘Embracing the New Disability Rights Paradigm:
the Importance of the Convention on the Rights of Persons with Disabilities’ (2012) 27(1) Disability &
Society 1–14.
31 For further information about legal mechanisms for involving and consulting DPOs, see FRA, DPO
Involvement: Indicators on Political Participation of Persons with Disabilities (Background Information
Report, FRA, 2014) .
32 Theresia Degener, ‘Disability in a Human Rights Context’ (2016) 5(3) Laws 35
.
http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparative-data/political-participation/dpo-laws
http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparative-data/political-participation/dpo-laws
http://www.mdpi.com/2075-471X/5/3/35
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silence and dependency and their lived experience has not been considered to be
valuable or relevant knowledge.33 Persons with psychosocial and intellectual
disabilities in particular are often questioned in terms of their ability to provide
relevant and reliable information due to an assumed lack of mental capacity.34 On this
basis, academia has been a particular target of criticism by disability rights scholars
and activists.35
The call for disability research to be participatory and co-produced led to the
formation of disability studies,36 a research field characterised by the idea that persons
with disabilities and their perspectives should have control over research, and
providing them with decision-making powers regarding research questions, design
and dissemination. In disability studies, researchers are held accountable by persons
with disabilities and their representatives, who are involved in the research process
wherever possible, as either academic researchers and/or non-academic partners.37
This requires a questioning of traditional power hierarchies within academia and the
opening of knowledge production to a marginalized social group.38 Disability research
emerges from a variety of disciplines but is always characterized by its aim to
33 Jasna Russo and Peter Beresford, ‘Between Exclusion and Colonisation: Seeking a Place for Mad
People’s Knowledge in Academia (2015) 30(1) Disability & Society 153.
34 See for instance Carol K Sigelman, Edward C Budd, Cynthia L Spanhel and Carol J Shoenrock,
‘Asking Questions of Retarded Persons: A Comparison of Yes-no and Either-or Formats’ (1981) 2(4)
Applied Research in Mental Retardation 347.
35 See above, n 13.
36 Stone and Priestley, above n 13.
37 Gerry Zarb, ‘On the Road to Damascus: First Steps towards Changing the Relations of Disability
Research Production’ (1992) 7(2) Disability, Handicap & Society 125.
38 Rannveig Traustadóttir, ‘Research with Others: Reflections on Representation, Difference and
Othering’ (2001) 3(2) Scandinavian Journal of Disability Research 9.
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empower and liberate participants and to foster social change on a broader scale. As
the academic arm of the disabled peoples’ movement, disability studies informed the
drafting of the CRPD and provided a theoretical framework for its implementation.39
Most importantly, the CRPD is premised on a ‘human rights model’ of disability,
which is a further development of the social model of disability.40 In comparison to
the social model, the human rights model provides not only an explanation for the
exclusion of persons with disabilities, but also, through the appeal to universal human
rights, a framework for political and legal measures to remedy them. The model
focuses not only on non-discrimination and civil rights, but also on the social,
economic and cultural rights of persons with disabilities. Research that adopts a
human rights-based model definition of disability, and that supports the work of
persons with disabilities and their representative organisations to achieve social
change in a collaborative way, can contribute to the monitoring and implementation
of the CRPD at the national and international level. Student law clinics offer one
means to pursue research that accords with the human rights model of disability and
contributes to the implementation and monitoring of the CRPD. In clinical legal
education programmes, research that pursues these goals can be conducted while also
39 See Arlene S Kanter ‘The Law: What’s Disability Studies Got to Do with It or An Introduction to
Disability Legal Studies’ (2011) 42(2) Columbia Human Rights Law Review 40; Rannveig Traustadóttir,
‘Disability Studies, the Social Model and Legal Developments’ in Oddný Mjöll Arnardóttir and
Gerard Quinn (eds), The United Nations Convention on the Rights of Persons with Disabilities: European
and Scandinavian Perspectives (Martinus Nijhoff Publishers, 2009) 1.
40 Degener, above n 32.
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offering students crucial experiential and theoretical learning. In the next section, we
discuss this second contribution of disability human rights clinics.
Clinical legal education – cause-based lawyering, experiential lawyering, and
engagement
Clinical legal education is increasingly recognised as a valuable – if not essential –
complement to traditional legal education. Student clinics ensure that students
develop valuable professional skills for their future careers as lawyers, including legal
research and analysis, teamwork, client liaison, clear writing, and advocacy. Students
are then equipped with knowledge and skills for lawyering in general, as well as
‘cause-based lawyering’ in the human rights field and beyond.41 Clinics also
contribute to the ‘third mission’ of universities to engage with, transfer knowledge to,
and contribute to the development of, the community.42 This responds to calls by
public and private funding agencies for universities to leave the ‘ivory tower’ and
allow non-academic organizations and individuals to access and actively participate
in research activities.43 Most notably, clinics can increase access to justice for people
who have traditionally been denied this right, for instance, by sharing knowledge,
41 Kris Gledhill, ‘Establishing An International Human Rights Clinic in the New Zealand Context’
(2013) 19 International Journal of Clinical Legal Education 295 .
42 Michael Loi & Maria Chaira Di Guardo, ‘The Third Mission of Universities: An Investigation of the
Espoused Values’ (2015) 42 Science and Public Policy 855.
43 Henk A. J. Mulder and Caspar F. M. De Bok, ‘Science Shops as University–community Interfaces:
An Interactive Approach in Science Communication’ in Cheng Donghong, Jenni Metcalfe and
Bernard Schiele (eds) At the Human Scale – International Practices in Science Communication (Science
Press, 2006) 2.
http://dx.doi.org/10.19164/ijcle.v19i0.31
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skills and resources with community organisations, by providing research support to
community legal centres, or by contributing to reports or communications to law
reform or other relevant bodies.
In the next section, we describe the Disability Human Rights Clinic at Melbourne Law
School, and propose that it has six key features that are necessary for the design and
execution of clinical programs that can achieve these multiple purposes.
Disability human rights clinics as a means to pursue the goals of the CRPD and
clinical legal education
The Disability Human Rights Clinic at Melbourne Law School
While several other disability rights-focused law clinics are in existence,44 the DHRC
was the first project-based clinic that is focused on systemic change, and the first to
incorporate disability studies and disability human rights curriculum. It is offered to
students completing the Juris Doctor (JD) post-graduate law degree. The degree
comprises both compulsory and elective subjects, and the DHRC has been offered as
a semester-long elective or a three week intensive subject. It counts towards students’
academic credit. Students enrolled in the DHRC undertake 12 days of clinical work
(one day per week during semester or four days per week during the intensive). Each
clinic day begins with a 90-minute seminar on international human rights law,
44 For example, the Disability Legal Information Clinic at the National University of Ireland, Galway’s
Centre for Disability Law and Policy (see ) and the Cerebra Pro Bono Research Programme at the University of Leeds (see
).
https://www.nuigalway.ie/centre-disability-law-policy/dlic/
https://www.nuigalway.ie/centre-disability-law-policy/dlic/
http://www.law.leeds.ac.uk/about/extra/cerebra-pro-bono-research-programme
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disability rights law and disability studies. Students spend the rest of the clinic day
working in small teams on a disability human rights-related clinical project, with the
clinic director providing ongoing guidance through informal discussions and
scheduled meetings with each team. Each group works on one major project for the
duration of the course; on the first day of the clinic, students are invited to rank the
projects that most interest them and are allocated to a group on that basis.
As a project-based clinic, students in the DHRC engage in research and/or advocacy
focused on systemic change as opposed to individual client service. Clinical projects
may include law or policy submissions, amicus briefs, research support for strategic
litigation, or other projects that require legal analysis. Most projects have a ‘client
partner’, which is an organisation that needs a specific project to be completed. These
may be documents that are internal to the organisation, such as an inclusion or
diversity policy review, or they may be public documents, such as a public report or
submission. Through the DHRC website45 and the professional contacts of the clinic
director and fellows, project proposals on disability human rights issues are invited
from DPOs, community legal services, state and federal government agencies,
researchers in other faculties at the University of Melbourne, and other stakeholders.
The students work closely with their client partner, seeking guidance when
developing the project and conducting the research, and inviting feedback on drafts.
At the end of semester, students deliver their research findings to the partner and
45 See
http://law.unimelb.edu.au/students/jd/enrichment/pili/subjects/disability-human-rights-clinic
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36
(where appropriate) to the academic and wider community, through both written
papers and oral presentations or seminars.
Based on our experiences in the DHRC, we propose that clinics must have six essential
features in order to fulfil the tripartite mission of human rights implementation,
engaging with the community, and providing rich experiential learning for students.
We propose that these features can also offer useful guidance to human rights clinics
concerned with other groups of rights-holders such as refugees and asylum seekers,
women and older persons.
Six essential features of disability human rights clinics
1. Conduct projects that share the objectives of the CRPD
Disability human rights clinics should have an overarching objective of improving the
human rights situation of persons with disabilities through legal analysis, research
and/or investigation of the legal, political and social barriers to the realization of the
rights enshrined in the CRPD. Using the CRPD as a framework for disability human
rights clinics ensures that the research being conducted is underpinned by a set of
principles and values that have been determined by the disability community itself.
This places the clinic in the best position to co-produce research that meets the needs
of that community.
The DHRC operates under the human rights-based model. It uses the CRPD as a
framework for its curriculum as well as a basis for the legal analysis within each
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37
clinical project. Within that framework, it accepts and adopts a social model of
disability that recognises that social barriers and law reform can be altered to meet the
needs of persons with disabilities. The DHRC rejects the concept that disability is a
burden or that it is deficient in the individual. It also rejects the notion that disability
is something that inherently needs to be ‘cured.’ Instead, in following with the CRPD
and the social model, the DHRC celebrates diversity and strives to remove socially
constructed barriers to full participation and equal rights for persons with disabilities.
Projects may encompass ‘traditional’ legal research, such as the preparation of legal
submissions, amicus briefs or information for public interest litigation, but also more
advocacy-focused endeavours such as assisting non-profit organisations to draft
shadow reports (which offer an alternative perspective to official State reporting) to
the CRPD monitoring body, the Committee on the Rights of Persons with Disabilities,
or the development of training materials for self-advocates and other stakeholders
(like judges and disability service providers) on the legal implications of the CRPD.
For example, projects completed by DHRC students have included research for
strategic litigation being contemplated by the Australian Centre for Disability Law, a
Specialist Community Legal Centre based in Sydney, and contributing to the annual
report of Catalina Devandas Aguilar, the United Nations Special Rapporteur on the
Rights of Persons with Disabilities, to the Human Rights Council and General
Assembly.
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Project-based clinics are particularly well-suited to human rights subjects46 because
human rights advocacy is often based on reporting, strategic litigation, and
submissions to human rights bodies.47 There are other benefits to project-based clinics.
They allow the students to work on broader social issues48 and to play a role in
strategic litigation and law and policy reform efforts. There are also practical
advantages of this structure. As long as the projects do not involve the provision of
specific legal advice,49 there is usually no need for student practice orders or for the
supervisor to have a practicing certificate or admission to the local bar. In jurisdictions
that do not have student practice orders, this is a significant benefit. This also allows
international guests or partners to engage more heavily with clinic projects.
2. Partner with DPOs (and, where appropriate, other organisations whose activities
have implications for the rights of persons with disabilities)
It is vital that disability human rights clinics focused on the rights or needs of
marginalized communities engage with relevant non-government organizations
(especially Disabled Persons’ Organisations) and community groups. This ensures
46 See Deena R Hurwitz, ‘Lawyering for Justice and the Inevitability of International Human Rights
Clinics’ (2003) 28(2) Yale Journal of International Law 505
.
47 For a discussion of human rights clinics, see Arturo J Carrillo, ‘Bringing International Law Home:
The Innovative Role of Human Rights Clinics in the Transnational Legal Process’ (2003) 35 Columbia
Human Rights Law Review 527
.
48 For a discussion, see Katherine R Kruse, ‘Biting Off What They Can Chew: Strategies for Involving
Law Students in Problem-solving Beyond Individual Client Representation’ (2002) 8 Clinical Law
Review 405 .
49 The definition of ‘legal advice’ varies based on jurisdiction and should be verified in any
jurisdiction where a project-based clinic is running.
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1221&context=yjil
https://www.law.gwu.edu/sites/www.law.gwu.edu/files/downloads/IHRC_article_AC.pdf
https://ssrn.com/abstract=2172346
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that they are up to date with the specific needs of the communities that they are
working with. In order to meet the requirements of the CRPD in regard to the
involvement of persons with disabilities in implementing and monitoring the
Convention, clinics of this kind should also strive to respond directly to the needs of
the specific community that they are working with. In practice, this means clinical
programs should invite persons with disabilities and DPOs to propose clinical projects
that will provide what they need to pursue disability human rights issues arising in
relation to the CRPD.
Project-based clinics can fill a gap in the DPO community’s resources.50 These bodies
are often under-funded and under-resourced with little capacity for writing and
analysis, while project-based clinics have a student group that has designated time
specifically for these tasks. Juris Doctor and other graduate students are usually
particularly well suited to this type of work because they are post-graduate students
with well-developed research and writing skills. Collaboration between project-based
clinics and NGOs can often produce the best results because they combine the
grassroots knowledge of the NGOs with the research and writing skills of the students
and the resources of the university clinic.
While partnerships with persons with disabilities and their representative
organisations should be prioritised, projects with or for other stakeholders may also
50 For a discussion of the need for clinics to be responsive to community need, see Sameer Ashar, ‘Law
Clinics and Collective Mobilization’ (2008) 14 Clinical Law Review 355.
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be appropriate and consistent with the overarching objectives of disability human
rights clinics. In particular, clinic students can offer training, advice and detailed
analysis of the human rights implications of laws, policies and practices to
government bodies, disability service providers and other organisations that may not
otherwise adopt a human rights lens. Clinical projects of this nature can contribute to
raising awareness about the rights of persons with disabilities (as guaranteed in article
8 of the CRPD) and increasing access to justice for persons with disabilities (article 13),
among others. For example, students in the inaugural DHRC partnered with the
Administrative Appeals Tribunal, an independent statutory body that decides
appeals on certain administrative decisions made by the Australian government
under Commonwealth laws. Its mandate includes reviewing decisions about
individuals’ access to the National Disability Insurance Scheme (NDIS), a new
national scheme designed to give persons with disabilities access to individualised
funding to purchase disability-related supports. The first object of the legislation
establishing the NDIS is to ‘in conjunction with other laws, give effect to Australia’s
obligations under the Convention on the Rights of Persons with Disabilities’.51 In light
of this, the DHRC students developed and presented a toolkit to assist Tribunal
members to make decisions that are compliant with the CRPD.
In cases were person with disabilities and their representative organisations are not
the primary project partners, it is especially crucial to ensure that the voices of the
51 National Disability Insurance Scheme Act 2013 (Cth) s 3(1)(a).
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disability community still guide the research. For example, research projects will only
be selected if their goals are consistent with the CRPD and the statements of DPOs,
the Committee on the Rights of Person with Disabilities or other United Nations
mechanisms and agencies. In the DHRC, students are expected to make contact with
relevant DPOs during the course of their projects, in order to seek their perspective
and guidance on the issue and to invite their input. Ideally, students will also share
their research outputs with interested DPOs, and produce versions of their materials
that may be useful to that group. For example, one group of DHRC students who
conducted comparative research on Australian and German guardianship laws for
partners at the Bochum Centre for Disability Studies (BODYS) at the Protestant
University of Applied Sciences RWL (Germany) also ran a workshop on Victorian
guardianship laws and sought feedback on their research from the leadership group
at VALiD, a Victorian organisation run by and for persons with intellectual disability
and families.
The DHRC uses several methods to engage with DPOs and other potential partners.
The DHRC website (hosted by Melbourne Law School) invites DPOs and persons with
disabilities to propose research topics and collaborate with students and researchers
to investigate those topics and produce research outputs. The clinic director and her
colleagues also refer potential partners to the clinic when they are approached or
otherwise hear about suitable projects. Information about human rights violations and
issues of concern are also sought from other stakeholders, such as domestic
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government bodies, non-DPO civil society organisations, disability service providers,
and United Nations mandates and mechanisms (including members of the CRPD
Committee and the Special Rapporteur on the Rights of Persons with Disabilities),
although these voices are always considered to be secondary to those of persons with
disabilities.
3. Participatory research methodology
Partnerships with DPOs in disability human rights clinics should not be restricted to
commissioning clinical projects and taking receipt of research outputs. Rather,
individuals and organisations should be involved as co-designers and co-producers
of the research, in-keeping with the principles of participatory and emancipatory
research developed in disability studies and reinforced in the CRPD. This means that
research topics must designed on the basis of concerns raised by, or direct research
requests from, the disability community. It also requires students and researchers to
discuss and agree on the design and conduct of the research project with these
partners, hold regular meetings to discuss and refine the research process, and
incorporate feedback from community partners before finalising their research reports
or other project outcomes, including identifying accessible ways of disseminating the
reports (discussed further below).
This ongoing engagement has several advantages. Research outcomes are not dictated
by the initial research question but also by decisions made with the partners during
the research process itself, for example regarding the operationalisation of research
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questions and the selection of methods. This enables partners to understand and to
actively take part in the necessary decisions-making processes.52 Intensive
participation in the research process can be empowering for community partners who
themselves gain new knowledge and skills, for example, by learning how
international and national law work and how they can be useful for their own
advocacy and action. At the same time, DPO involvement secures the student
researchers’ access to relevant stakeholder knowledge. The two-sided knowledge
exchange ensures that research outcomes can be a tool for change – on one side,
students are informed by needs or problems identified by the affected community,
and on the other side, partnering organisations are supported by rigorous legal
research and analysis.
Clinic students profit just as much from working closely with the community partners,
gaining career-relevant contacts and developing their skills in project design and
management, client liaison, legal and social research, advocacy, teamwork,
responsiveness and communication. For example, students in the DHRC have formed
working relationships that could lead to future work experience and employment,
including peak national DPOs, community legal centres, United Nations mechanisms,
and statutory authorities like the Victorian Office of the Public Advocate and Victoria
Legal Aid. The project-based format enables students to gain lawyering skills that they
52 See Vivien Runnels & Caroline Andrew, ‘Community-based Research Decision-making:
Experiences and Factors Affecting Participation’ (2013) 6 Gateways: International Journal of Community
Research and Engagement 22.
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may not have the opportunity to develop in their other studies. Working with other
students, supervisors and community partners requires high-level teamwork and
interviewing skills, and students are supported to develop these skills throughout the
clinic teaching period.
4. Produce accessible and useful outputs
Law students and lawyers have long been criticised for failing to ensure that their
written communications are clear and accessible to lay clients.53 The issue of
accessibility is of particular relevance for persons with disabilities, as they commonly
face exclusion from accessing information due to communication barriers. This very
much applies to academic publications, with journal articles, research reports and
scientific conferences rarely being provided in accessible formats. Another crucial
component of a disability human rights clinic is therefore to create outputs in shared
ownership that are accessible and tailored to the needs of the community partners.
DHRC students are encouraged to identify the most useful and accessible formats for
their research outputs early in the project planning process and in consultation with
the partner organisation. For example, several groups of students have developed
materials in ‘easy-to-read‘ format, which they have utilised in workshops with
persons with intellectual disability or their representative organisations.54 The
53 See for example Ros Macdonald and Deborah Clark-Dickson, Clear and Precise Writing for Today’s
Lawyer (Queensland Law Society, 2000).
54 Misako Nomura, Gyda Skat Nielsen and Bror Tronbacke, Guidelines for Easy-to-Read Materials (IFLA
Professional Reports No 120, International Federation of Library Associations and Institutions, 2010)
.
https://www.ifla.org/publications/guidelines-for-easy-to-read-materials
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DHRC’s research outputs, such as written reports and videos of presentations, are
published in multiple formats on the (accessible) Melbourne Law School website,
including screen-reader accessible reports. The accessibility of presentations and
seminars is also considered, with wheelchair accessible venues, sign-language
interpretation, and other accessibility considerations factored into event planning.
This is a work in progress, with future plans to develop more easy-to-read outputs
and accessible events.
Where appropriate, disability human rights clinics can also provide advice and
support to partner organisations to utilise the research outcomes to pursue social
change by, for instance, linking them with legal services to pursue strategic litigation,
or providing guidance on pursuing formal redress through a communication to the
Committee on the Rights of Persons with Disabilities or other domestic or
international bodies. This can also contribute to the realisation of the right to access to
justice guaranteed in article 13 of the CRPD. Finally, to maximise the reach and impact
of the research findings, partners are invited to share the research outputs with their
members and networks. Permission is sought from the students and the partners prior
to this dissemination.
5. Combine disability studies and human rights education
A detailed background in disability studies and human rights education is essential
for students engaged in disability human rights clinics. The DHRC includes a teaching
component – a 90-minute seminar or lecture at the beginning of every clinic day – to
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equip students with a detailed knowledge of disability studies and disability human
rights law and practice. Seminars address the key aspects of disability studies and
teach students about the central ideas and shift of perspective that the emergence of
this interdisciplinary research field brought to the scientific discussion of disability.
This is particularly important for students in many universities that do not have
disability studies or disability law programs.
Topics addressed in the seminars include the medical and social models of disability;
discrimination (including intersectional discrimination); legal capacity; and
accessibility. Other seminars deal with general human rights principles, theory and
law, including the history and enforceability of international human rights, and the
universal rights guaranteed in the ICCPR and the ICESCR. The application of these
rights specifically to persons with disabilities in the CRPD, the implementation of
disability human rights in domestic law in Australia and other parts of the world, and
the mandates and activities of international human rights monitoring mechanisms,
are also addressed. In the DHRC, we have very intentionally ensured that the
substantive curriculum that we teach also includes knowledge of the history of
marginalisation of persons with disabilities and the role that research has played. We
also include an overview of new methods that have been proposed to shift research
from marginalising to participatory and emancipatory.55 Finally, we ask the students
55 See for example Stone and Priestley, above n 36.
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to explore how participatory and emancipatory methodologies can be employed in
their work in the clinic and how the clinic as a whole uses those methodologies.
Lectures and seminars on disability studies and human rights (and associated
readings and exercises) provide students with the background material that is
essential to their ability to produce useful and legally sound research outputs for their
partner organisations, and to develop essential legal knowledge for future lawyering
and advocacy work in the national or international human rights fields. While
students’ learning is assessed primarily through a research report (or other output)
produced for the partner, they are also required to complete a short exam at the end
of the semester. This ensures that students have engaged with the full breadth of
relevant materials, and not just the specific subject matter involved in their clinical
project.
Importantly, the DHRC director and lecturers are aware of the sensitivity of some
matters that arise during lectures and discussions, particularly because many of our
students and lecturers are persons with disability themselves. Trigger warnings are
provided for students regularly throughout the course of the clinic. Students meet
individually with the director to ensure that there is adequate space for all students to
express themselves, including when they are having a difficult time and experiencing
anxiety or are particularly impacted by the sensitive issues such as violence and
discrimination that arise in this area.
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6. Ensure that the clinic and educational experience is accessible to all
In addition to making sure that the research outputs of disability human rights clinics
are accessible, clinics (and all aspects of legal education) must also be accessible to
students. This means ensuring that classrooms, learning materials and
communications between lecturers, supervisors, students and partners are accessible.
Frances Gibson has proposed that all clinical legal programs should follow a number
of guidelines to ensure that clinics adhere to the requirements of the CRPD.56 These
include mandatory skills-based disability training for staff and students, contributing
to policy-making and activities to increase the enrolment of students with disabilities
in law programs, encouraging students with disabilities to enrol in clinics, teaching
critical analysis of the law’s approach to disability, and promoting employment of
staff with disabilities.
The critical analysis of the law’s approach to disability is the centrepiece of the DHRC.
In addition, students are invited to note any accessibility requirements in their
application to enrol in the clinic, and to attend a meeting with the clinic director prior
to the commencement of the course if they so desire. Classes are conducted in an
accessible room, and materials (such as the course outline and electronic versions of
assigned reading materials) are provided in multiple formats as required. If requested,
the director and fellows also provide support to students in their interactions with
56 Frances Gibson, ‘“The Convention on the Rights of Persons with Disabilities”: The Response of the
Clinic’ (2011) 15 International Journal of Clinical Legal Education 11
.
http://dx.doi.org/10.19164/ijcle.v15i0.53
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university services (such as the Student Equity and Disability Support service at the
University of Melbourne) to make alternative exam arrangements and so on. Staff
involved in the DHRC all have a background in disability rights law. They are
involved in other disability rights-related research and activities within the University
of Melbourne, including consultation on disability policy and student inclusion.
The multi-directional benefits of disability human rights clinics
The six principles outlined above emphasise the role of disability human rights clinics
in both supporting the mission of community organisations (especially DPOs) and
offering valuable experiential and traditional learning to students. Disability human
rights clinics have obvious appeal for law schools and universities. They are relatively
low cost – supervisors do not generally require a practising certificate for project-
based clinical work, partner organisations mainly provide in-kind support rather than
requiring funding, and the widespread availability of information and
communication technology like video-conferencing reduces the need for travel to
meet with partners or deliver research outputs.57 Like other forms of legal clinics, they
offer ‘work-integrated learning’, meaning they provide students with valuable,
relevant work-experience that relates to their studies and their career aspirations, and
results in new learning.58
57 See Gledhill, above n 41.
58 Melinda Shirley, Iyla Davies, Tina Cockburn and Tracey Carver, ‘The Challenge of Providing Work-
integrated Learning for Law Students – the QUT Experience’ (2006) 10 Journal of Clinical Legal
Education 134, 135-6 .
http://dx.doi.org/10.19164/ijcle.v10i0.81
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By sharing knowledge, and the means of knowledge and research production, with
the community specifically for the purpose of supporting human rights realisation,
disability human rights clinics also contribute to universities’ ‘third mission’ of
engagement, as well as the so-called ‘fourth mission’ of establishing long-term
university-community partnerships.59 This can have wider flow-on effects for
academia – civic engagement in research can help to rearrange traditional power
structures in research and enable participation of stakeholders who traditionally have
not been able to have a say, despite the fact that they are often significantly impacted
by research activities and outcomes.
Conclusion
Disability human rights clinics can be a valuable addition to clinical legal programs in
law schools worldwide. Where they have the six features identified in this paper, these
clinics meet each of the three key ‘motivations’ for clinical legal education identified
by Kris Gledhill.60 First, they ensure that students develop valuable professional skills
for their future careers as lawyers, including legal research and analysis, teamwork,
client liaison, clear writing, and advocacy. Secondly, they can increase access to justice
for people who have traditionally been denied this right, for instance, by sharing
knowledge, skills and resources with community organisations, by providing
59 On the third and fourth missions, see Jill Chopyak and Peter N Levesque, ‘Community-based
Research and Changes in the Research Landscape’ (2002) 22(3) Bulletin of Science, Technology and
Society 203; Gregory Trencher, Masaru Yarime, Kes B McCormick, Christopher N H Doll and Steven B
Kraines, ‘Beyond the Third Mission: Exploring the Emerging University Function of Co-creation for
Sustainability’ (2014) 41 Science and Public Policy 151.
60 Gledhill, above n 41, 297.
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research support to community legal centres, or by contributing to reports or
communications to UN monitoring bodies. Finally, disability human rights clinics can
contribute to social change by supporting the disability community in its pursuit of
the realisation of the human rights of persons with disabilities at the local and
international levels.
The model proposed here could also provide the basis for human rights clinics
concerned with other groups of rights-holders, such as refugees and asylum seekers,
women, and older persons. For example, the principles relating to participatory
research and the accessibility of research outputs, and of the clinic itself, are relevant
for all areas of research and advocacy. While the CRPD is the only human rights
instrument to place such explicit emphasis on the participation of the affected persons
in the implementation and monitoring of human rights, Deena Hurwitz explains that
all human rights advocacy
is fundamentally participatory and equitable. That is, it requires active
collaboration between lawyers, advocates, and those affected by the work (who
may or may not be the clients).61
The DHRC model exposes student to this participatory methodology. Students who
have completed the clinic have often commented that their perspectives of disability
and human rights have shifted. They often see human rights as much more connected
to their daily lives than they had previously realised, and often begin to see disability
61 Hurwitz, above n 46, 521.
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as something to celebrate in appreciation of the joy of human diversity. Through the
humble platform of clinical legal education, the DHRC model has had a significant
impact on the students as well as the many and varied partners that have been our
clients – the United Nations Committee on the Rights of Persons with Disabilities, the
United Nations Special Rapporteur on Disability, the Australian Disability
Discrimination Commissioner, and others.