Making the case for a convention on the human rights of older persons

ABSTRACT

Andrew Byrnes’s work has furthered the critical analysis of older persons’ human rights within domestic and global contexts. This article examines his significant contribution to scholarly and advocacy discourse in older persons’ human rights and the impact of that work. By reviewing Byrnes’s work across the last decade, this article locates his contribution within the field. The article observes that Byrnes’s approach provides options to reignite a stalled debate and provides a necessary catalyst for re-conceptualising ageing and human rights towards a convention on the rights of older persons.

KEYWORDS:

• Older persons
• ageing
• human rights
• convention
• lawyer
• legal scholar

Acknowledgements

I am very grateful for the insight and assistance of those who reviewed the early drafts and for the support of the editorial team in finding the right balance in this paper. Like many of Professor Byrnes’s colleagues in the older persons’ rights space, I am grateful to be the beneficiary of his technical expertise, patient mentoring and guidance, and genuine humility in supporting the movement towards a CROP.

Disclosure statement

In accordance with Taylor & Francis policy and my ethical obligation as a researcher, I am reporting that I do not have any interests that may be affected by the research reported in the enclosed paper.

Notes

1. Actors include Member States, National Human Rights Institutions, Non-government Organisations and United Nations agencies.

2. In respect of Resolution 67/139, the vote on Draft resolution II was adopted by 54 votes to 5, with 118 abstentions: See https://undocs.org/en/A/67/PV.60.

3. Herro and Byrnes (2021, 280) suggest that ‘normative gap’ is a contested definition and both a conceptual and semantic exercise.

4. Andrew Byrnes was consultant to the Office of the High Commissioner for Human Rights in the preparation of the 2021 Analytical Update.

5. The United Nations ‘Open-ended Working Group on Ageing for the purpose of strengthening the protection of the human rights of older persons’ is also called the ‘Open-ended Working Group on Ageing’ or ‘UNOEWGA’.

6. It is critical to note that my description of ‘Byrnes’s work’ includes his work with co-researchers and co-authors – including those cited within this paper and not cited.

7. Byrnes was engaged as external legal adviser to the Joint Committee on Human Rights between November 2012 and September 2014. Between 2012 and 2104, the Joint Committee’s workload had considerable volume – 20-25 Bills per week and significantly more instruments (Byrnes, 2014a, 4).

8. In its second cycle Universal Periodic Review (UPR), Australia committed to promoting and protecting the rights of older people internationally by modelling and advocating better use of existing United Nations human rights reporting mechanisms, including a dedicated section on the rights of older Australians in all relevant human rights treaty and universal periodic review reports and in United Nations resolutions and to encourage existing Special Rapporteurs to consider the application A/HRC/31/14 30 of their mandate to older persons in close collaboration with the Special Rapporteur on the enjoyment of all human rights by older persons (United Nations Human Rights Council 2016, 29).

9. Byrnes was part of the Asia Pacific Forum’s delegation to the UN General Assembly Ad Hoc Committee on the Elaboration of a Disability Convention between 2004 and 2006.

10. Mandates include: A/RES/65/182: Follow-up to the Second World Assembly on Ageing; A/RES/67/139: Towards a comprehensive and integral international legal instrument to promote and protect the rights and dignity of older persons; A/RES/70/164: Measures to enhance the promotion and protection of the human rights and dignity of older persons.

11. Byrnes assisted the UN Department of Economic and Social Affairs (UNDESA) in the lead-up to the Tenth Working Session of UNOEWGA by collating substantive inputs in the form of normative content for the development of a possible international standard on the focus areas “Autonomy and Independence” and “Long-term and Palliative Care” (United Nations Department of Economic and Social Affairs 2019).

12. Recommendation 2: Rights of older people receiving aged care

The new Act should specify a list of rights of people seeking and receiving aged care, and should declare that the purposes of the Act include the purpose of securing those rights and that the rights may be taken into account in interpreting the Act and any instrument made under the Act. The list of such rights should be:

a. for people seeking aged care: i. the right to equitable access to care services

ii. the right to exercise choice between available services

b. for people receiving aged care

i. the right to freedom from degrading or inhumane treatment, or any form of abuse

ii. the right to liberty, freedom of movement, and freedom from restraint

iii. the right of autonomy, the right to the presumption of legal capacity, and in particular the right to make decisions about their care and the quality of their lives and the right to social participation

iv. the right to fair, equitable and non-discriminatory treatment in receiving care

v. the right to voice opinions and make complaints

c. for people receiving end-of-life care, the right to fair, equitable and non-discriminatory access to palliative and end-of-life care

d. for people providing informal care, the right to reasonable access to supports in accordance with needs and to enable reasonable enjoyment of the right to social participation.

13. The Letters Patent are available at:

https://disability.royalcommission.gov.au/publications/commonwealth-letters-patent

Additional information

Notes on contributors

William John Mitchell

William John Mitchell was admitted as a lawyer in 1992. He is Principal Lawyer at Townsville Community Law and Adjunct Associate Professor of Law with JCU’s College of Law, Business and Governance. Bill received the Australian Human Rights Commission Law Award in 2008, the Law Council of Australia’s President’s Medal in 2019 and a Medal of the Order of Australia in 2020. He has represented Community Legal Centres Australia in the Open-ended Working Group on Ageing and other United Nations forums since 2013.