Response from afds to the Australian Law Reform Commission Issues Paper on Equality, Capacity and Disability in Commonwealth Laws January 2014 Introduction



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47. Australian Federation of Deaf Societies (AFDS)




Response from AFDS to the Australian Law Reform Commission Issues Paper on Equality, Capacity and Disability in Commonwealth Laws
January 2014
Introduction
The Australian Federation of Deaf Societies (AFDS) appreciates the opportunity to respond to the Australian Law Reform Commission Issues Paper on Equality, Capacity and Disability in Commonwealth Laws. Legal recognition before the law and legal capacity are important issues for the AFDS, and for the people who are deaf or hard of hearing that are serviced by Deaf Societies around Australia. This submission focuses on those areas where deaf or hard of hearing are not equally recognised before the law with specific issues and recommendation for the government to consider.
The AFDS supports the Australian Government for their work to continue to be informed and to keep current the ability of its laws to represent people with disability in the changing community in 2014 and the future.
AFDS
The Australian Federation of Deaf Societies comprises the Deaf Societies from around Australia, who work together to improve the opportunities for people who are Deaf and hard of hearing.

With one in six Australian affected by hearing loss, and that number expected to rise to one in four by 2050 (Access Economics, 2006) the work of Deaf Societies continues to be important in working with the Deaf Community to meet the needs of Deaf Australians. 

The members of the AFDS are:


  • Deaf Society of New South Wales

  • Deaf Services Queensland

  • Royal South Australian Deaf Society (Deaf CanDo)

  • Tasmanian Deaf Society (TasDeaf)

  • West Australian Deaf Society

  • VicDeaf

Each member organisation is unique and has grown over the years to provide services that match the local requirements of the individual states. However, there is a lot that is common with each organisation:

  • The strength of purpose and dedication to service that comes from highly committed voluntary boards, down to dedicated staff who have cultural and linguistic understandings of the communities within which they serve,

  • The 100% use of income to enhance and grow services to the community,

  • The many staff who are from the Deaf Community,

  • The sharing and support each organisation is able to give to its peers.

The AFDS vision is ‘To encourage access and equality for Deaf and hard of hearing Australians’ and this statement underlies the following submission. The AFDS supports the right of people who are Deaf or hard of hearing to achieve equality – in the community, in education, of employment opportunities, financially and in regards to equal recognition before the law. Choices of deaf people should be seen just like others that their choices are recognised and supported.



Auslan (Australian Sign Language)
The AFDS believes that the language of the Deaf community in Australia, Auslan (Australian Sign Language) should be seen as a valued human right for deaf people for without recognition, Deaf people’s right to participate in society would be negated. Auslan should be recognised by the Australian Government and the wider community as without Auslan, Deaf people would not be able to speak out, participate and be equal standing citizens of Australia. In fact, the Australian Government recognise Auslan in the private health setting with the employment of a national Auslan booking interpreting service and to an limited extent within the workplace due to the Employment Assistant Fund (EAF) yet Deaf people must continue to advocate to have equal recognition before the law.
Due to the visual nature of Auslan, the language differs to that of English and uses its own grammar and syntax. Those using Auslan can communicate a rich variety of concepts and subtle meanings.
Recognition of Auslan as a language of Australia was also articulated in the concluding observations of the UNCRPD Committee at the 10th Session in September 2013, in which Australia was called to appear before the committee. Such recognition of Auslan would also lead to full participation of Deaf people in the culture and life of Australia, including current barriers that exclude Deaf people from participation and equal recognition before the law. For example, currently Deaf people do not have a right to an interpreter within the legal setting (criminal and civil jurisdictions) and are unable to perform civic duties as state governments will not allow deaf people to sit on a jury.
The AFDS provides the following responses to the Issues Paper, in parallel with the AFDS policy priorities of:

  • Employment – the need for increased employment opportunities for people who are Deaf or hard of hearing, including the removal of barriers to employment, increased access to technology and equipment, and increased funding for Auslan interpreters for employment related activities.

  • Education – increased positive educational outcomes for people who are Deaf or hard of hearing, equitable education, and teacher training for working with Deaf or hard of hearing students.

  • Communication and access to Auslan interpreters – the provision of quality communication choices to enable increased community, education and employment participation, including quality interpreter choices, communication options such as captioned services, and implementing new technologies to suit communication needs of people who are Deaf or hard of hearing.

  • Mental health and well being – the need for improved mental health support services for people who are Deaf or hard of hearing; increased awareness of mental health needs in the deaf and hard of hearing community, and the provision of specialised provision of mental health services to people who are deaf or hard of hearing.



United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)
The AFDS supports the framework of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and as a signatory Australia must meet its requirements under the convention. AFDS encourages the Australian Government to remove the interpretative declaration to Article 12 of the UNCRPD with the aim to reflect in Australia’s laws the intent which recognises that people with disability have the right to equal recognition as people before the law and with equivalent legal capacity to those without disability.

Responses to specific areas

Supported decision making

The AFDS supports the UNCRPD and in particular Article 12 which acknowledges that people with disability have the right to equal recognition before the law, and with equivalent legal capacity to those without disability. Such equality is a general human rights protection for all people and should not be diminished or restricted to a particular group of people due to a perceived omission of attributes to certain classes of people such as those with an intellectual or cognitive disability. All people with disabilities should enjoy legal capacity in all areas of life on an equal basis as others.

Substituted decision making especially those for intellectual and cognitive impaired and have a psychosocial disability ultimately removes legal capacity and equal recognition before the law. Australia’s Interpretative Declaration on Article 12 removes this right for people with disabilities in Australia.

Deaf people who may not be able to articulate their needs or wants clearly, and deaf people with additional disabilities, have been subjected to substituted decision making processes via state and territory legislative measures such as Guardianship Acts which allows substitute decision making processes to occur for a person’s estate management, guardianship and mental health laws. Substitute decision making as opposed to supported decision making processes also has the potential to be subject to abuse by those who control the substitute decisions for the person with a disability.

At the 10th session of the UNCRPD in which the Australian Government was up before the Committee to report on their compliance of the UNCRPD, the parallel Shadow group along with the UNCRPD Committee raised these issues. The concluding observations of the Committee recommended Australia incorporate all rights under the Convention into domestic law and review its interpretative declarations with a view to withdrawing them.

AFDS supports the removal of Australia’s Interpretative Declaration to Article 12 and encourages the Government to adopt the view of supported decision making as opposed to substituted decision making processes.

Restricting rights of people with disabilities to gaining equal recognition before the law also restricts the ability for people with disabilities to achieve many of the rights that have been set out and afforded to people with disabilities by the CRPD.

Restricting legal capacity also restricts a deaf person’s ability to access the justice system either as a victim, accused or witness and also one that wishes to exercise their civic duties such as serving on juries. To this end, AFDS would like to see a presumption of capacity included in our support for the CRPD and in Australian domestic law, not a presumption of incapacity.



Participation in community

The AFDS advocates for the rights of people who are Deaf or hard of hearing to be recognised before the law as equal, participating community members whose attributes may include Auslan (Australian Sign Language) as their first language, and where possible they can use their preferred means of communication, and to be part of the culturally Deaf community.

Article 21 is the other key principle for people who are deaf or hard of hearing which provides that people with disability are entitled to the freedom to seek, receive and impart information and ideas in an equal manner with others and through all forms of communication. For people who are Deaf or hard of hearing, this article is key in ensuring that they have access to information in appropriate and accessible formats.

Equity of access to communication is a major issue for people who are Deaf or hard of hearing. Access to interpreters, technology and support are all part of the daily life of a deaf person within the workplace or participating in community events. Yet for those Deaf people whose first or preferred language is Auslan they still face difficulty in applying for work, becoming employed and remaining in the workforce. The decision as to cost of these support services and technology consistently falls on the Deaf individual to provide and pay for. It is only when society ceases to place barriers on Deaf people’s participation into life whether that is in the workforce, community or political life will we see that Deaf people are afford equal rights and equal recognition before the law.



National Disability Strategy 2010–2020

It is pleasing to see the National Disability Strategy 2010 – 2020 (‘the Strategy’) being developed in response to the requirements of the UNCRPD and focusing on the human rights of people with disabilities. No doubt the Strategy will benefit from being enforced with reportable measures that require definitive action. These need to be developed in partnership between Government agencies and the community to improve outcomes for people with disability. The AFDS would like to see the Strategy as an initiative that can drive reform, and be a catalyst for change within the Government and the community, and to continually improve Australia’s support for people with disability.

Presently the National Disability Strategy categorises what is happening in Government, business and the community but it is not a driver for outcomes, and there is no enforcement. The AFDS would like to see strengthened accountability, more active monitoring and measuring of outcomes, and increased recognition within Government of the Strategy’s value.

The AFDS would like to see the Strategy support and implement accessibility in the workforce for people with disability, from training and workplace training, job applications, accessible workplaces and, most importantly, accessible technology.

The Strategy should be a strong supporting platform for the new National Disability Insurance Scheme (NDIS). The Strategy’s goal of improving the contribution of people with disability to the Australian workforce is in tandem with the NDIS focus on those able to work. In bringing these two initiatives to bear at the same time, it is imperative to enable them to work in collaboration.

Framing principles

An additional principle that could be included with dignity, equality, autonomy, inclusion and participation, and accountability is self-determination. This is the underlying freedom for an individual to be able to make their own decisions whether they are right or wrong, to decide their own life, make their own choices, and to live as they choose with the opportunities afforded to every other people in their community. The enabling of choice and control in a person’s life is a key platform of the NDIS and the underlying vision of the AFDS.



A uniform approach to legal capacity?

The AFDS supports a nationally consistent approach to defining capacity and assessing a person’s ability to exercise their legal capacity. It cannot be affected by state or territory laws, and differing definitions due to conflicting or outdated legislation. The freedom to move interstate which is a guaranteed constitutional right should not impede on the person with a disability to receive and gain human rights.



The role of family, carers and supporters

The role of family, carers and others in supporting a person with disability to exercise their legal capacity should be viewed no differently to any other person, and it is imperative to understand that the role of the family members, carers or others should not replace the support services that is ‘required’ by people with a disability to exercise their legal capacity.

A Deaf or hard of hearing person must be enabled to participate in the legal system with qualified supports so that they can participant equally to any other person. Supports for a deaf or hard of hearing person may include sign language interpreters and or assistive technology such as hearing loops and captioning and augmentative technology. All AFDS members have experienced various scenarios in their state jurisdictions in which they have been informed by or witnessed a family member, carer or others acting as communication aides in court, police and law firm settings. These people who may have some signing skill but this does not equate to accredited interpreters. To prevent these occurrences from being repeated, there should be clear guidelines and processes for all legal frameworks to include appropriate support services that are required.

Safeguards / guardianship

Whilst the issue of supported decision making as opposed to substitute decision making has been addressed previously in this paper, it is imperative to also understand as per paragraph 3 of Article 12, that when supporting of people with disabilities to exercise legal capacity one must respect the rights and preference of the person with a disability and therefore substitute decision making processes should not be considered. The placing of any type of restrictive practice on a person with a disability violates their human rights and dignity and their right before the law.


AFDS members have much varied experienced in dealing with Deaf people with additional intellectual and or cognitive impairments and subject to guardianship orders in the management of their living and financial arrangements. This practice removes the legal capacity of one to make their own decisions as governments continue to restrict the capacity one can make before the law based on will, preference, rights with support of another.
AFDS again strongly urges that Australia remove the Interpretative Declaration and amend subsequent domestic laws of substitute decision making.
General protections provisions and Employment

In relation to employment for people who are Deaf or hard of hearing, the AFDS policy platform on employment advocates for: increased employment opportunities, the removal of barriers to employment, increasing access to technology and equipment, and increasing funding for Auslan interpreters for employment related activities. Recent figures from the Australian Bureau of Statistics showed that the labour force participation rate for people with disability aged 15-64 years was 54.3% compared to 82.8% for people without a disability.1.

One of the aims of the NDIS is to assist people with disability to achieve their goals and aspirations, and which should include opportunities for employment and social inclusion. The economic benefits of employment for people with disability are clear, and the figure for the economic benefits to the Australian economy has been conservatively quoted at improving employment rates by one-third for people with disability, and could result in a cumulative $43 billion increase in Australia’s GDP in ten years.2

This information from the Australian Network on Disability:

Employment of people who are deaf can be beneficial for employers, who often will have a consistent and loyal employee, who if supported and trained will be long-term employees that bring the benefit of difference to a workplace However, Australian (Deakin University 2002) and overseas studies have found that workers with disability are no more likely to be injured at work than other employees and there are no differences in performance and productivity. It was also identified that employees with disability actually have fewer scheduled absences than employees without disability as well as increased tenure. On average, employing people with disability does not cost any more than employing people without disability. Assistance with the cost of making workplace adjustments is available through the Australian Government funded Employment Assistance Fund.

The principles of employment are the same for people with disability as those without disability. The main focus should be on the skills, talents and capabilities the person with disability can bring to the workplace.3

Therefore support for people to achieve employment should be a key priority to increase the participation of people with disability in the workforce. Employee Assistance Funding, supports through employment services, application processes, accessibility, increased knowledge of anti-discrimination practices, and promotion of benefits will all be required to give people with disability improved employment opportunities.

The National Disability Insurance Scheme

The National Disability Insurance Scheme (NDIS) legislation must work in parallel with state laws, other Commonwealth legislation, and Government agencies. Consideration of its legislation and the inclusion, access and provision of services to people with disability is a key concern for the AFDS. To date the needs of people who are Deaf or hard of hearing have not been assured of being participants in the NDIS. There have been cases of inequality in the provision of services depending on a person’s disability. For example, the Victorian Deaf Society (VicDeaf) has to work together with a client who is profoundly deaf to provide him with a $10,000 hearing aid. Alternatively, if a person who is deaf, and may have other disabilities, is accepted as a participant in the NDIS, this cost would be covered by the scheme. The AFDS continues to work positively with the National Disability Insurance Agency on this issue.

There are however many discrepancies between services presently provided by the Government, eg, Australian Hearing services provides free hearing aids for deaf and hard of hearing people up to age of 25, or on a pension or retired, but not for those in the working age group and this gap therefore means in person's opportunity in the workplace and access to work is limited due to their own inability to pay for this expensive device.

Another issue is private insurances, as many Deaf people are in the low income bracket and cannot afford private health insurance which might assist them to purchase hearing aids.


Citizenship rights, public service and board participation and public life

People with disability should not be automatically excluded from participating on a jury or in jury service. Assessments for this role should be competency based, and there could be advantage in involving people with disability in cases in which people with the same disability are involved either as a defendant or a victim. The jury should reflect the community, and given the high rate of people with disability in the community they should be reflected in the legal system.


Jury service is a privilege, and some community members have the privilege removed eg prisoners. It is inappropriate to treat people with disability in the same way. The AFDS is pleased to see some progress. For example, in January 2014, the Perth District Court in their usual processes summonsed Drisana Levitzke-Gray, a deaf person, for jury duty. This person attended the jury process (with interpreter) but was not randomly selected through the ballot system, however if selected this person would have been able to serve in the Jury like her peers. It is the understanding of the Western Australian Association of the Deaf Inc that she is the first Deaf sign language user in Australian history to have completed their civic duty as a member of Australian society, moving through the jury selection summons and selection process in the same way hearing people would expect to. Australia can now join the United States of America and New Zealand as part of only a handful of countries in the world that have permitted Deaf people to potentially be selected as a juror for a criminal trial or to serve on a jury.
However prior to this development Deaf people have been systemically discriminated against by having this right to perform this civic duty removed on the presumption that they could not perform this as individual person. The mere fact that they require a support service such as an interpreter does not negate their capacity to perform. Preconceived ideas and assumptions as to the ability of the Deaf individual should not occur.
Equally important is the deaf individuals right to participate in the board room and in public life, and this participation should not be limited due to issues of cost for the access to occur or the issue of presumptions as to capacity of the deaf individual. The mere provision of a support service such as interpreter does not negate the intelligence nor the capacity of a deaf person to contribute to these important services in Australia. As civic duties can relate to individual state jurisdictions such as the rights to serve on juries, it is suggested that a uniform approach to redress this issue be considered here.

Access to justice, evidence and federal offences

The Australian justice system has an over-representation of people with disability, and in some states the statistics show prevalence for people who are deaf or have a hearing impairment in incarceration and on an indefinite basis. One example is 2012 research that shows that of Aboriginal people in the justice system in the Northern Territory 9 in 10 Aboriginal inmates in that territory’s correctional facilities suffered significant hearing loss (from a study and testing of 134 Aboriginal inmates aged between 20 and 60) 4 . It stated that persistent ear disease during childhood damages middle ear structures, resulting in permanent mild to moderate conductive hearing loss amongst many Aboriginal adults, and that early onset hearing loss contributed to exacerbating communication issues and language acquisition.

There needs to be training and education for anyone working with people with disability, and in particular about particular disabilities. Those working in the justice system and elsewhere must be able to recognise if a person is Deaf, has a hearing impairment, has communication or comprehension difficulties. They must be able to engage and work with assistance staff such as Auslan interpreters. It may also be a cultural understanding of how some words or phrases are used or understood. These are important for courts, for programs such as for diversion or youth courts, and pre-courts.

Also, we see a need to develop a national assessment standard so whenever person with disability enters the justice system, they are automatically assessed for disability and support services prior to entering the court, and this aligns with, or the justice system recognises, the NDIS assessment.

As mentioned above, and stated in paragraph 197 of the Issues Paper, it is essential that for people who are deaf in court there needs to be recognition of the right to use Auslan. We would like to see evidence laws clarified. For example while they do include interpreters for witnesses, their provision or use is ambiguous. The law states that interpreters can interpret 'sufficiently', which is not appropriate as this could mean that a court might see family members who can interpret 'sufficiently' as meeting the requirements of the law. The use of interpreters must be qualified through the National Accreditation Authority for Translators and Interpreters (NAATI). Accreditation is made to Professional Levels which is recommended for the justice system.

Further it is suggested that the law should not recognise just witnesses within the court setting but also recognise the use of Auslan interpreters for all aspects of the court service including both criminal and civil jurisdictions. In Australia there is no inherent legislation apart from the Commonwealth Evidence Act that addresses the use of an interpreter in court and will be at the discretion of the Judge. This means that a deaf individual must request leave of the court to have an interpreter present. Whilst it is common practice within the criminal jurisdiction that all jurisdictions provide and cover the costs of an interpreter based on the right to a fair trial, within the civil jurisdiction the cost of an interpreter is borne by the deaf person who is either the litigator or has been summoned within this jurisdiction. This is akin to asking a person in a wheelchair to pay for their ramp or the lift to access the building. Without this being addressed deaf people will continue to not have their rights recognised before the law.



As mentioned in clause 197 of the Issues Paper, the description of ‘deaf and mute witnesses’ is outmoded and must be reviewed and updated to current terminology that conveys deaf individuals that may not use their voice to communicate as soon as possible.

1 Survey of Disability, Ageing and Carers”, Australian Bureau of Statistics, 2009

2 Deloitte Access Economics, The economic benefits of increasing employment for people with disability, 2011

3 Business Benefits of Hiring People with a Disability, from Australian Network on Disability, http://www.and.org.au/pages/business-benefits-of-hiring-people-with-a-disability.html

4 Massive prevalence of hearing loss among Aboriginal inmates in the Northern Territory, 2012; T. Vanderpoll and D. Howard,

http://www.ilc.unsw.edu.au/sites/ilc.unsw.edu.au/files/articles/ILB%207-28%20Hearing%20Loss%20-%20Vanderpoll_Howard.pdf

Disabled Justice, The barriers to justice for persons with disability in Queensland, Queensland Advocacy Incorporated, 2007



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