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The Rights of People with Disabilities: Areas of Need for Increased Protection

Chapter 1: Introduction

Background
Defining Disability
Origin, Nature and Degree of Disability
Defining Rights
Defining Discrimination
Methodology
Discussion Paper Structure

Background

In June 1988, the National Council on Intellectual Disability (previously AAMR Inc. and herein referred to as NCID) agreed to undertake a preliminary research project for the Human Rights and Equal Opportunity Commission. Two other peak organisations in the disability area, ACROD and Disabled Persons International (DPI), endorsed the project and agreed to co-operate.

In August 1988, NCID appointed a project co-ordinator, and project workers were appointed in each State and Territory. State-based member organisations of NCID were involved in the selection of project workers, and were involved in the process of collecting information.

The aims of the project were:

• to document the areas and instances of discrimination (or denial of rights) as perceived by people with disabilities themselves, their parents, and/or those working with them;
• to identify existing support programs for people with disabilities;
• to review the adequacy of the existing standards for these programs;
• to examine the collated documentation to determine whether legislation or administrative guidelines (or lack thereof) cause this discrimination, and to determine what protection, if any, is currently available; and
• to identify specific areas of need for consideration in any proposed federal legislation or review of administrative guidelines or practices.

Defining Disability

The United Nations Declaration on the Rights of Disabled Persons of 1975 provides that:

the term 'disabled person' means any person unable to ensure by himself or herself wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or no4 in his or her physical or mental capabilities.

The New South Wales Anti-Discrimination Board's 1981 Report on Discrimination and Intellectual Handicap stated that:

Definitions and terminology relating to disability have changed considerably overthe years, along with changes in the understan ding of the variety and nature of the conditions which lie within its scope.

Although defmitions change and will continue to do so, for the purposes of this Discussion Paper it is importan to identify and define three major types of disability. These are:

• sensory
• physical; and
• intellectual.

A sensory disability arises as a result of a reduced level of functioning in relation to sight or hearing. Hence, people have, or develop, hearing impairments or visual impairments.

The South Australian Committee on the Rights of Persons with Handicaps (in 1978) defined a person with a physical disability as 'one who as a result of a physical impairment together with community attitudes and the physical environment is substantially limited in his (sic) opportunities to enjoy a full and active life'.

The New South Wales Anti-Discrimination Board's 1981 Report (cited above) suggests that a person with an intellectual disability is someone 'who, as a result of disabilities arising from intellectual impairment, is substantially limited in one or more major life activities. These major activities include self-care, receptive and expressive language, learning, mobility and self-sufficiency'.

A fourth type of disability is that of psychiatric disability. While it is recognised that people who have (or have had) a psychiatric disability also experience discrimination and the infringement of their rights in many areas, NCID and the Human Rights and Equal Opportunity Commission agreed that the area deserved separate and specific examination. As a consequence, this Discussion Paper concentrates on sensory, physical and intellectual disability and does not address issues specific to psychiatric disability.

Origin, Nature and Degree of Disability

The Federal Government advisor in the field of disability, the Office of Disability, in its document Disability, Society and Change considered the origin, nature and degree of disability.

On origin, Disability, Society and Change states that:

the origin, or causes of disability are many and varied, but it is possible to identify some broad differences and similarities between them. Some disabilities, such as cerebral palsy, deafness or Downs Syndrome may be there from the moment a person is born. Other disabilities can result from illnesses such as multiple sclerosis, polio, asthma, diabetes, epilepsy, which may develop either during adulthood or childhood. Accidents are another major cause of disability.

The nature of the disability describes just what a disability means for a person in his or her everyday life. For example, some disabilities make it difficult, or impossible, for a person to walk or use his or her arms. Other disabilities mean that a person may not be able to see, hear or talk. For some people, learning new things does not come easily or quickly. Still other disabilities mean that a person has difficulty thinking logically or being able to control emotions.

The degree of disability is how much a person's life is affected by the disability. It is a way of describing the levels of difficulty a person experiences and therefore the level of support that may be required. The degree of disability is often described with labels such as 'mild', 'moderate', 'severe' or 'profound'.

In this Discussion Paper we examine the need for the increased protection of the rights of people with physical, intellectual, and sensory disabilities, whatever the degree of disability, and regardless of the origin or nature of the disability.

In this Discussion Paper, reference to people with disabilities means people with any type of disability (excepting psychiatric disability: see above), unless a specific type and degree of disability is mentioned. In many circumstances it has been essential to specify the type of disability because of the difference in certain existing barriers and attitudes. For example, the problems encountered by people with intellectual disabilities in relation to the criminal justice system may not be as pronounced for people with physical disabilities. Similarly, the support required by a person with visual impairment in locating and maintaining employment can be different from that required by a person with an intellectual disability: a person with visual impairment might sit a Public Service entrance examination with appropriate assistance, while a person with intellectual disability might need to enter the Public Service through a special placement program.

Defining Rights

The human rights which the Human Rights and Equal Opportunity Commission promotes and protects are those set out in certain international human rights instruments which have been ratified or subscribed to by . These instruments include the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women and the Declarations on the Rights of Children and Mentally Retarded and Disabled Persons. Some of these instruments are given effect by being included in certain Federal legislation, such as:

• the Human Rights and Equal Opportunity Commission Act 1986;
• the Racial Discrimination Act 1975; and
• the Ser Discrimination Act 1984

These Acts apply equally to people with or without disabilities. Although it is true that a person with a disability has the same rights as a person without disabilities, certain attempts have been made to provide increased protection for people with disabilities.

The International Covenant on Civil and Political Rights stipulates that all people have the right to:

• privacy;
• marriage and family;
• their own language, culture and religion;
• participation in public affairs;
• freedom of expression, movement, association and assembly;
• protection of their inherent right to life;
• liberty and security of person;
• freedom from cruel and degrading treatment or punishment;
• equal treatment with others under law;
• effective remedies if these rights are violated.

The Declaration on the Rights of Disabled Persons stipulates that people with disabilities have the right to:

• respect and dignity;
• assistance to enable them to become as self-reliant as possible;
• education, training and work;
• family and social life;
• protection from discriminatory treatment.

The Declaration on the Rights of Mentally Retarded Persons stipulates that people with intellectual disability have the right to:

• equal rights, i.e. rights equal to persons without a disability;
• developmental services;
• economic security and work;
• home and community life;
• guardianship;
• the right to legal protection.

The Declaration on the Rights of Disabled Persons states further that:

Disabled persons have the inherent right to respect for their human dignity. Disabledpersons, whatever the origin, nature and seriousness of theirhandicaps and disabilities, have the same fundamental rights as their fellow citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible.

The three instruments detailed above form schedules to the Human Rights and Equal Opportunity Commission Act 1986 (for the full text of the Declarations, see Appendix II). The Commission may investigate complaints about the breach of such rights in certain circumstances. It may then endeavour to conciliate the complaint or conduct an inquiry into a matter.

Neither the Racial Discrimination Act 1975 nor the Sex Discrimination Act 1984 provide for discrimination based on disability.

The Federal Human Rights Commissioner, Brian Burdekin, in an address to the Workshop on Accommodation for People with Severe Physical Disabilities (July 1988), stated:

It is a consistent underlying premise of our Commission's work that we need to evaluate the existing laws and treatment of people with disabilities against the United Nations Declarations on the Rights of Disabled Persons.

He stated further that:

Our Commission is committed to monitoring the areas of discrimination most commonly experienced by people with disabilities and is reviewing the areas of accommodation, education, employment, and the supply of goods and services. On the basis of what we have heard and the complaints we have dealt with, it is time to consider enacting federal legislation to protect and advance the rights of people with disabilities.

The fundamental assumptions underlying this project are that people with disabilities have the same rights as people without disabilities, and that in many instances there is a need for the increased protection of those rights. The rights outlined above serve as the starting point for identi1'ing instances of discrimination in each of the five main areas of life experience considered in Chapters II to VI, namely, employment, education, accommodation, the criminal justice system and the consumption of goods and services.

Additional existing federal legislation, such as the Disability Services Act 1986 will also be discussed. it is worth noting at the outset, however, the first two of the Principles and Objectives of the Disability Services Act 1986. These are:

1. People with disabilities are individuals who have the inherent right to respect for their human worth and dignity.
2. People with disabilities, whatever the origin, nature, type and degree of disability, have the same fundamental rights as all members of Australian society.

Defining Discrimination

Following the Royal Commission on Human Relationships' Final Report of 1977, one of the Commissioners, Ann Deveson, noted:

Our report concluded that discrimination against the handicapped exists in many forms. The problems stem from a failure to treat them as people. Handicapped people are not sub-human and do not want to be treated that way. They ask only that normal social welfare systems be modified to meet their needs. Increased social justice is needed and one of the main ways to achieve this is through integration into the mainstream of society (Deveson, 1978).

The Final Report itself stated that:

We must ensure that handicapped children and adults are not denied their legal and human rights: the right to a stimulating environment, the right to education, the right to work and the rights to lead lives which are as close to normal as possible. To be handicapped and to be deprived of these rights is unjust.

If people with disabilities have the same rights as people without disabilities then discrimination occurs when a person with a disability is treated less favourably than any other person in similar circumstances.

As an example, the Report on Discrimination and Intellectual Handicap identifies two types of discrimination, direct and indirect:

A person directly discriminates against an intellectually handicapped person if on the ground of:
(a) his intellectual handicap;
(b) a characteristic that appertains generally to persons with intellectual handicap; or
(c) a characteristic that is generally imputed to persons with intellectual handicap;
he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person without intellectual handicap.
Indirect discrimination is not so obvious, because it may occur when the same criterion or treatment is applied to everyone, but it may just as effectively disadvantage one group in relation to another.
A person indirectly discriminates against an intellectually handicapped person on the ground of his intellectual handicap if he requires him to comply with a requirement or condition:
(a) with which a substantially higher proportion of people with intellectual handicaps comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the intellectually handicapped person does not or is not able to comply.

A requirement of comparability is one which many disability organisations raise as a major stumbling block for a person with a disability seeking the protection of the law, as for example in the New South Wales Anti-Discrimination Act 1977. The impairment provisions of that Act, like the Act's other discrimination provisions (relating to the grounds of sex or race), are worded so that a person discriminates against a person with a disability on the ground of his or her impairment only if 'he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not a (physically or intellectually) handicapped person'. This requirement of comparability can be a difficult one for people with disabilities to meet, since there will very often not be a person who does not have a similar disability but who is in circumstances which are the same or not materially different. Comparisons are not always possible for people with a disability.

The assumption underlying the comparability requirement is that all people consume the same services. This is demonstrably not the case. People with disabilities often require very different services or have different methods of doing things that cannot be compared with the needs or methods of non-disabled people. Because people with disabilities use different services there will often not be a non-disabled person with whom to compare themselves, and the treatment received. The requirement of comparability can be a very unrealistic one for people with disabilities to satisfy, thereby representing a barrier to their successful use of the law.

Alternative definitions of direct and indirect discrimination are as follows:

Direct discrimination occurs when a person acts, either deliberately or unintentionally, to discriminate against another on the grounds of stereotyped attitudes or beliefs;

Indirect (covert, systemic) discrimination occurs when policies, practices or rules, although 'neutral' on their face, result in discrimination against a particular group of persons.

Direct and indirect discrimination can occur in a variety of circumstances. These include situations where:

• services are not provided;
• services are not co-ordinated;
• appropriate policies are not formulated;
• inappropriate policies are formulated;
• legislation is poorly framed, anachronistic, or uninformed; or
• legislation is contravened.

In addition to policies and legislation, the acts and practices of people and personnel can also be discriminatory. Consider:

• government personnel who frame, or neglect to frame, policy;
• staff who work in segregated or mainstream settings;
• individual service providers such as taxi drivers, shop keepers, landlords, etc;
• corporations or non-government organisations which neglect to accommodate the special needs of people with disabilities;
• service providers who fail to ensure the 'least restrictive environment' for each individual.

Discrimination does not have a uniform and undifferentiated character. It occurs in many, if not all, areas of the life of a person with a disability, to a greater or lesser degree. It is part of the wider experience of structural disadvantage most people with disabilities experience during the course of their lives.

Methodology

As stated previously, NCID appointed a project co-ordinator, whose responsibilities included:

• the formulation of an initial Position Paper;
• the briefing of State project workers on issues related to information collection, protocol and report writing; and
• the compilation of the final national Discussion Paper.

In most states a project worker was appointed to write a state report. In Western Australia, a 'Local Reference Group' collected relevant information and submitted it together with a summary to the project co-ordinator. In South Australia, three project workers co-ordinated two forums at which a range of people and organisations gave their views on rights and discrimination. These views were summarised and then forwarded to the project co-ordinator.

In those States where a project worker collected information on his/her own, a range of methods were adopted to ensure the analysis was as thorough as possible within the limits of the project's resources. Such methods included:

• telephone interviews;
• personal interviews with key personnel in various organisations;
• meeting with groups of people with disabilities;
• attendance at board meetings, AGMs, committee meetings etc; and
• literature searches.

Personal interviews concentrated on:

• policy directions and shortcomings;
• practices in specific settings;
• instances of discrimination; and
• ways to further protect the rights of people with disabilities.

This approach allowed the project worker to observe the inconsistency between legislation, policy and practice, to identify the areas where rights had been denied or breached, and to thereby recommend ways in which the rights of people with disabilities could be protected further.

Discussion Paper Structure

The five main chapters of this Discussion Paper relate to areas of life experience in which a person with a disability encounters discrimination. These are:

• employment;
• education;
• accommodation;
• the criminal justice system; and
• the provision of goods and services.

Each of the five main chapters begins with a statement of the main issues the chapter is to address. There follows a statement of some of the relevant rights to the particular area of life experience. The rights concentrated on are those of the international United Nations Declarations on the Rights of Mentally Retarded Persons and on the Rights of Disabled Persons.

Generally, the third section of each of the chapters details the ways in which such rights are denied, and the nature of the discrimination encountered. This detail includes consideration of:

• Commonwealth involvement;
• State/Territory Government involvement; and
• policies, and policies in practice.

Examples are provided and generally cited in relation to a specific State or Territory. In many cases, however, similar experiences have been encountered in other states or territories. Each of these chapters concludes by providing an overview of major issues, and certain recommendations, with particular emphasis on the role that Federal and/or State/Territory governments could play in overcoming discrimination.

The final chapter presents a consolidated listing of the major recommendations and proposes a number of measures to deal with disability discrimination. The presumption is that no single measure can deal with all the ways in which discrimination occurs.

This Discussion Paper provides only a glimpse of the discrimination experienced by people with disabilities. It makes no pretence of being an exhaustive study, or of analysing any one area in depth. There is no doubt, however, that the areas identified more than justify a more thorough investigation by the Human Rights and Equal Opportunity Commission.

Go to chapter 2