The Rights of People with Disabilities: Areas of Need for Increased Protection
Chapter 7: Conclusion
- Criminal Justice System
- Goods and Services
- Dealing with discrimination
- Advocacy services for individuals and groups
- Adequate resourcing to ensure real choices
- Physical design standards that promote access
- Advocacy within government
This conclusion is provided in two parts. The first part is a consolidated listing of the major recommendations contained in chapters 2-6. It is essential that Federal and State Governments respond appropriately to the discriminatory practices identified. It has been assumed that no single measure will deal with all the types of discrimination which occur. The second part of the conclusion explores a number of the specifically recommended measures in more detail.
To ensure that people with disabilities have the right to economic security, useful, productive work and recognition of individual capacities and skills, and to ensure that they can secure work in the most integrated setting possible, it is recommended that:
- all federal employment programs be strongly encouraged to move towards integration;
- the Australian Public Service strengthen its commitment to equal employment opportunities for people with disabilities, and particularly explore the extension of programs such as the Intellectual Disability Access Program;
- the Disability Services Program of the federal Department of Community Services and Health ensure that all employment services funded under the Disability Services Act comply with the Principles and Objectives of that Act, particularly in view of the widespread discriminatory practices evident in most sheltered workshops;
- the Principles and Objectives of the Disability Services Act be adopted by other federal departments providing funds or services for people with disabilities;
- in view of the report Towards Enabling Policies the federal Department of Social Security consider restructuring the arrangements which provide income support for people with disabilities;
- the legal status of workers in sheltered workshops be determined at law, thereby clarifying the coverage, if any, of such workers under workers compensation legislation;
- Federal and State Governments explore options for providing financial incentives to employers who are to employ people with disabilities;
- official recognition be given to the right of people with disabilities to economic and social security;
- appropriate anti-discrimination legislation be enacted by governments in those jurisdictions without such specific legislation.
To ensure that people with disabilities have the right to an education which will enable them to develop their capabilities and skills to the maximum, and which will hasten the process of their social integration or reintegration, this Discussion Paper endorses and reiterates the recommendations of the report New Directions and recommends further that:
- education, as the first option, be provided in generic school settings;
- existing practices in special schools be monitored by Federal and State Governments to ensure that students with disabilities receive appropriate education in the most suitable setting and location;
- the Commonwealth Special Education Program address the issues raised in the SES Review report in relation to funding arrangements and support services for special education;
- the recommendations of the report TAFE and People with Disabilities be used to address the structural difficulties currently encountered by TAFE in providing services for people with disabilities;
- universities and colleges of advanced education accept the responsibility of encouraging people with disabilities to enrol, and of enabling them to study with appropriate support;
- appropriate anti-discrimination legislation be enacted by governments in those jurisdictions without such specific legislation.
To ensure that people with disabilities have the right to accommodation in the community, with the accompanying right to participate in all social, creative or recreational activities, and to remain out of specialised establishments unless it is indispensable, it is recommended that:
- the Disability Services Program of the federal Department of Community Services and Health ensures that all accommodation services funded under the Disability Services Act comply with the Principles and Objectives of that Act;
- the Principles and Objectives of the Disability Services Act be accepted and observed by other federal departments providing funds or services for people with disabilities;
- the Disability Services Program consider broadening the eligibility criteria for the Attendant Care Scheme so as to include people not resident in nursing homes;
- the Home and Community Care program give practical effect to its policy direction of providing services for younger people with disabilities;
- all State and Territory Housing authorities, as signatories to the Commonwealth-State Housing Agreement, increase the role they play in providing public housing for people with disabilities;
- all State and Territory Governments accept that people with disabilities have the right to live in community based accommodation, and that unnecessary and inappropriate institutional accommodation amounts to an infringement of this right;
- all State authorities involved in the provision of accommodation for people with disabilities accept as guiding principles the principles of normalisation and the least restrictive alternative;
- all State authorities license and monitor carefully the operation of boarding houses;
- the rights espoused in the Intellectual Disability Rights Service's book Rights in Residence (1988) be considered by all State authorities providing accommodation services for people with disabilities;
- discrimination in the private rental market be expressly prohibited, where such laws do not already exist;
- appropriate anti-discrimination legislation be enacted by Government in those jurisdictions without such specific legislation.
A person with disabilities may become exposed to the criminal justice system as a victim of a crime, as a person suspected or accused of a crime or as a witness. This exposure renders any such person particularly vulnerable, especially when the disability is of an intellectual nature. Accordingly, it is recommended that:
- police interview procedures be reviewed to provide that accused persons, especially those with limited short-term memory or conceptual skills, understand clearly what is being asked and the significance of actions such as the surrendering of the right to silence and the signature of a record of interview;
- legal aid systems take particular note of the difficulties experienced by people with disabilities within the criminal justice system and provide support accordingly;
- court proceedings and evidentiary rules in all jurisdictions be reviewed in light of the particular needs of people with disabilities, notably in the areas of provision of sworn and unsworn evidence;
- increased support be given to magistrates and judges in understanding the particular difficulties of people with disabilities, and state authorities act to ensure that a greater variety of sentencing options are available; and
- the right to freedom from physical assault and mistreatment be recognised by authorities responsible for the management of institution systems, and proper investigation and action be taken on any allegation of mistreatment.
A wide range of discriminatory practices occur in relation to the provision of goods and services to people with disabilities. Such practices were identified in areas as diverse as finance and banking, medical treatment, and transport and travel. There is no doubt that these are only the tip of the iceberg. It is recommended that:
- those jurisdictions without anti-discrimination legislation consider discrimination on the ground of disability as an area requiring attention and action;
- stronger federal legislation be enacted to prohibit discrimination on the ground of disability in the provision of goods and services;
- the Federal Government act to ensure that health programs funded by federal monies do not discriminate against people with disabilities, particularly in the area of medically unwarranted tubal ligation and hysterectomy,
- the Human Rights and Equal Opportunity Commission give particular attention to the health problems and needs of Aboriginal people that lead to or exacerbate forms of disability and
- consideration be given to the range of measures proposed in this Conclusion under the section entitled 'Dealing with Discrimination'.
It became apparent to project workers involved in the preparation of this Discussion Paper that discriminatory practices can only be dealt with by a combination of measures. No single measure is adequate. Any combination of measures should include:
- advocacy services for individuals and groups
- adequate resourcing to ensure real choices
- physical design standards that promote access
- advocacy within government
- the role of disability advisers
There should be federal disability legislation stating general principles, noting standards for services to people with disabilities and indicating behaviour that is discriminatory. Such legislation that provides a name and defmition to such practices provides an objective standard as to what is considered fair and just or unfair and unjust. Such a standard is an essential tool for people or their advocates tackling individual issues of discrimination.
Any 'emerging' legislation should be developed as far as possible by people who themselves have directly experienced discrimination as a result of their disability. It has been suggested that some of the problems with existing anti-discrimination legislation exist because such legislation was not drafted by the people who were actually experiencing the problem (e.g. women/ethnic minorities/racial groups). When confronted by the question 'What do you really want any legislation to actually do?', responses included:
I'd like it to stop people patting me on the head and calling me dear; and I'd like people to stop speaking slowly to me because I'm in a wheelchair.
Discriminatory judgments and actions are usually based on what people cannot do. Little attention is paid to actual capacities; perhaps the suggested legislation should be based on people's capacities.
It takes courage, will, anger and knowledge to take on discriminatory practices effectively and get them changed.
Too often a discriminatory practice teaches people that they do not deserve anything different. Conversely people learn that fighting discrimination may risk other gains they may have had. Tackling discrimination as an individual can lead to a sense of isolation and threat; as a single 'I' faces a whole lot of 'You'. Having an advocate provides a lot of the support to counter a discriminatory practice effectively. This Report notes several instances where advocacy services provided the back up, knowledge and training needed to tackle discrimination.
Advocacy services have begun to educate people both as to their rights and their responsibilities under the law. The need for the education of the general community and of special groups within it, such as police, architects, city engineers and administrators of housing, educational and employment services, has been constantly mentioned. Education by anyone other than those affected or their advocates would be unthinkable, given the number of well meaning 'mistakes' encountered when those directly affected have not been involved.
Advocacy services must be more than 'buddy services. They must be able to advocate not only for individuals, but also for changes to the systems that are 'going wrong'. Such services must be able to train individuals to be their own advocates. There is a clear responsibility on the part of such services to ensure that public opinion is on side and supportive, so that the political system can perceive that there is a general public will that discrimination should be tackled. Such services should have the independence to cover all areas of government or public action.
The role for advocacy groups is clear and constant. No matter how perfect the system, new people coming into it will not automatically know how it should work. Good legislation makes the job of advocacy services a lot easier; good legislation without advocacy services would be an ineffective mockery.
There should be adequate resourcing of people experiencing extensive discrimination. Any form of dependency, such as that which results from age, impecunity or disability, invites discrimination.
Much of the discrimination experienced is related to a person's lack of economic or other power to make choices within our systems. For people with disabilities, adequate resourcing means there would be the opportunity to make choices. People can make choices, either by having sufficient income so that they can determine their priorities, or at least by having services that meet their needs (such as personal care in time to get to work, or the recognition by the tax system of the additional cost of disabilities for people in employment).
The implementation of New Directions by the federal Department of Community Services and Health represents a start in this direction, as do the social justice strategies of some State Governments. However, recent cutbacks, such as the restructuring of the Program of Aids for Disabled People, will exclude many working people from assistance and eventually force such people to give up work in order to seek and obtain greater support and security by way of pensions.
Environmental discrimination continues to be one of the most constant, pervasive, and demeaning forms of discrimination experienced.
People with disabilities are still being excluded from education, employment, the freedom of assembly and association (by way of clubs and recreational venues), because of the lack of certain basics: safe entry and access to buildings and public places, and reasonable access to toilets, transport and communication facilities.
Most of our houses, shops, streets, footpaths, telephone boxes, public toilets, and vehicles are still only designed for able-bodied adults, unencumbered by young children, pushers or any other loads. This situation either excludes, or makes additional demands on, children, frail older people, and people with any form of physical disability. Such people are precisely the people who are meant to be the target of public transport and telephone services, and who are the most excluded because of poor or thoughtless design.
On a daily basis, shops and public buildings continue to be approved and built with either no appropriate access at all (due to steps and narrow doorways), or with demeaning, hard to find access (of the 'around the back' genre) which is often rendered inaccessible anyway by a thoughtlessly placed delivery truck or rubbish bin. The current vogue for cobbled sloping footpaths will no doubt reap its toll in overturned chairs and strained backs. Too often the only access between shops, offices and parking space is gained by moving along the middle of a busy commercial street.
Well meaning attempts to fix the problem are stymied by the number of authorities involved; local councils are responsible for kerbs and gutters, and building owners are responsible for building entrances. Failure to consult people with disabilities about access for each system or building renders many attempts at access an ironic joke.
There is a crucial need to monitor and point out the cumulative impact of changes in any government procedures and regulations on the lives of people with disabilities.
There is a further crucial need to make administrators conscious of the ways that their departments contribute to discrimination. This is a long-term educative process.
Having someone on the 'inside' and thus privy to all the information and openness that does exist within both the State and Federal public services is essential. Disability advisers working within the public service, who have access to Ministers and senior public servants across all departments, are well placed to influence certain policy development. However, as with women's advisers, the person in the job can experience a great deal of stress when confronted by the contrast between the number of areas they ought to be influencing, and those that they actually do influence. Further, such advisers are often unfairly held accountable by consumers on the 'outside', for every government action that still promotes or perpetuates discrimination.
At the federal level, the only body capable of monitoring the effect of policy and feeding the results back to government on behalf of consumers, not government departments, is the Office of Disability. The Office of Disability has achieved credibility with consumers as an accurate advocate at the federal level. At a time of hasty cutbacks, such a national monitor is essential. The Office of Disability should be retained as a key element in any anti-discrimination process.