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 cooperate. 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 selfsufficiency'. 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.

The Rights of People with Disabilities: Areas of Need for Increased Protection Chapter 2: Employment

Issues Addressed Rights

Denial of Rights and Discrimination Commonwealth Involvement: Introduction Direct Federal Government involvement Disability Services Act Sheltered Employment Allowance Income Support Legislation related to employment conditions The Commonwealth Employment Service (CES) Conclusion Barriers to Open Employment Major Issues and Recommendations

Issues Addressed
This section of the Discussion Paper concentrates on two main areas of employment. Every attempt has been made by project workers to contact people with disabilities who have worked in sheltered workshops, activity therapy centres, a range of open employment situations, and some who have been without employment. The two main matters considered are:

the Federal Government's involvement in the provision of employment for people with disabilities (the existing programs and the policies behind such programs and the interrelationship between such programs, i.e. whether the programs complement or contradict each other); in this context the recommendations and implications of the Social Security Review Issues Paper No.5 - Towards Enabling Policies: Income Support for People with Disabilities ('Towards Enabling Policies'), is also considered; the existing barriers for people attempting to find employment in the open workforce.

The Federal Government's report of the Handicapped Programs Review, New Directions comments that: Society places a high value on vocational activity and income in determining an individual's status. This was reflected in the constant call for paid employment which was seen as a highly desired consumer outcome during the Review. People who have disabilities are just as interested in being employed as people who are not disabled but their employment rate is much lower than that for non-disabled people (30% participation of people with disabilities in the labour force compared to 70% participation for the total population aged 15-64).

Rights
Principle 3 of the United Nations (UN) Declaration on the Rights of Mentally Retarded Persons states that: The mentally retarded person has a right to economic security and to a decent standard of living. He has the right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities. Principle 7 of the UN Declaration on the Rights of Disabled Persons states that: Disabled persons have the right to economic and social security and to a decent level of living. They have the righ4 according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions. The key elements of these two Principles are that people with disabilities have the right to:

economic security; useful, productive work; and be recognised as people with individual capacities and skills.

Further, the first recommendation in the area of employment made by the New Directions report states that: all Commonwealth employment programs (should) be strongly encouraged to move towards integration. It is in the light of this recommendation, and the rights espoused in the UN Declarations, that the following discussion on discriminatory practices in areas of employment has been framed.

Denial of Rights and Discrimination

Commonwealth Involvement: Introduction The New Directions report stated that the following major issues were raised in submissions and consultations:

the fact that the greater part of government funding for people with disabilities has been directed towards sheltered workshops, and these facilities were considered to be inadequate and in need of reform; the unchallenging and inappropriate work frequently found in workshops and the low level of wages; the importance of paid employment for disabled people; the need for greater access to work opportunities, particularly competitive employment;

the absence of real incentives to employers to encourage the employment of disabled people; the apparently higher costs such as increased workers' compensation premiums when employers take on staff with disabilities whether in sheltered or open employment; the problem created by the impact of the Invalid Pension on earnings resulting in disincentives to work; the need for a range of flexible employment options, particularly in integrated settings; the lack of ongoing support for those in competitive employment; the lack of access to work opportunities for those currently excluded; the lack of training for employment service providers; the continuing confusion between the employment roles of activity therapy centres (ATCs) and sheltered workshops; and the design of small business loans or loan guarantees to assist interested persons dependent on income security payments to raise the development capital required to establish businesses.

To date, most of these issues have still not been addressed, and information collected by project workers indicates that people with disabilities still confront the same difficulties. Most of the issues mentioned above need to be addressed at the federal level. The Federal Government has a large and complex role in the provision of employment for people with disabilities. The New Directions report considered two areas of the Federal Government's involvement:

direct government employment; and government assistance towards employment: support services to individuals to make it more likely that they will fmd and maintain employment; and incentives for employees which increase the kinds of employment opportunities made available to people with disabilities.

This Discussion Paper will consider:

direct Federal Government involvement - employment in the Australian Public Service (APS) the Disability Services Act; the Sheltered Employment Allowance; other income support: Towards Enabling Policies;

Federal legislation related to employment conditions; the Commonwealth Employment Service

Direct Federal Government involvement Discrimination in the APS is an example of the inconsistency between policy, implementation, and practice. The Equal Employment Opportunity Survey of the Australian Public Service in 1986 indicated that 7% of respondents reported a disability. Even though most of the disabilities reported were relatively minor, staff with disabilities had not progressed as rapidly as comparable able-bodied staff. The EEO Survey did not ascertain the difficulties that people with intellectual, physical, or sensory disabilities encountered in obtaining employment in the APS. Following the abolition of the Public Service Board, government departments have been expected to take on greater responsibility for implementing Equal Employment Opportunity programs. The newly created Public Service Commission maintains a central monitoring function, but is only able to call for additional information. It has become increasingly easy for departments to produce EEO programs which have little impact, and this greatly affects the prospects of people with disabilities obtaining and maintaining employment in the APS. After the abolition of the Public Service Board, the recruitment functions of 'Special Placement Officers' have been taken over by the Department of Employment, Education and Training. The 'Special Placement System' for people with disabilities has operated since 1971. Applicants must meet the same selection test standards and other appointment conditions as everyone else, but special testing arrangements are available for applicants whose disabilities would affect their performance at a standard test session. In effect these conditions exclude people with intellectual disabilities from employment in the APS. As a result of this discrimination, and in response to Recommendation 22 of the New Directions report, the Public Service Board began the Intellectual Disability Access Program. This program allows ten people with intellectual disabilities to be employed in three Departments (Defence, Administrative Services, ACT Administration) without fulfilling standard entry requirements (i.e. selection tests). Although the range ofjobs that participating departments have identified is limited, there is an attempt to discriminate in favour of the person with an intellectual disability. The program has been in existence for three years, yet it is only now that applicants for the first ten positions are being interviewed. Another entry requirement which could adversely affect people with disabilities is the medical test. Currently a person has to be judged fit to serve for three years. A recruitment review is currently under way. The Human Rights and Equal Opportunity Commission has made a submission to the review requesting the abolition of such a requirement. This Discussion Paper supports that request. If a person with a disability obtains employment in the APS, he or she may experience difficulty in maintaining it. Although the principle of reasonable adjustment exists, many people indicated that they were unable to get the support they needed from individual departments.

Each APS agency is required to make reasonable adjustment for the known physical or intellectual limitations of an applicant or employee unless the agency can demonstrate that 'to do so would impose upon it undue hardship'. 'Reasonable adjustment' actually involves the taking of specific measures in relation to people with disabilities, whenever it is necessary, possible and reasonable to do so. This flexibility of operating or adapting any circumstances or system, with the purpose of extracting the best and fairest result in the most reasonable manner, does not preclude the usual considerations of merit and cost effectiveness. Reasonable adjustment may include:

making facilities readily accessible to, and usable by, people with disabilities; job restructuring; modification or acquisition of equipment or devices; modification of work schedules; provision of ancillary resources, such as readers, deaf language interpreters, note-takers, etc.; appropriate adjustment of examinations, employment practices and policies.

Despite the formulation of Equal Employment Opportunity programs by each department, the existence of Special Placement Officers, the principle and process of reasonable adjustment, and the Intellectual Disability Access Program, employment in the APS remains difficult for most people with disabilities, and particularly for people with intellectual disabilities. Disability Services Act The Disability Services Act nominates two 'employment service types' which the Federal Government is prepared to fund:

'competitive employment training and placement services' are defined as services to assist persons with disabilities to obtain and retain paid employment in the workforce and include: (a) services to increase the independence, productivity and integration of persons with disabilities in the workplace; (b) employment preparation, and employment and vocational training services; and (c) services to assist the transition of persons with disabilities from special education, or employment in supported work settings, to paid employment in the workforce; 'supported employment services' are defined as services to support the paid employment of persons with disabilities, being persons: (a) for whom competitive employment at or above the relevant award wage is unlikely; and (b) who, because of their disabilities, need substantial ongoing support to obtain or retain

paid employment. Clearly, the range of types of employment which can receive funding under these two 'employment service types' is large, and enables the Federal Government to meet some of the recommendations of New Directions. Project workers interviewed and collected information from people with disabilities, parents and advocates and a range of people involved in the employment field. Some of the comments obtained, which relate to services funded under the Disability Services Act, are recorded below, on a state by state basis. Generally the information suggests that many organisations currently providing employment services do not comply with the Principles and Objectives of the Disability Services Act and that sheltered workshops are as inadequate now as at the time of publication of New Directions. The federal Department of Community Services and Health must ensure that adequate mechanisms for transfer are provided, that sufficient funding is available, and that the transition date of 1992 is adhered to by organisations which provide employment. New South Wales The average New South Wales weekly earnings in sheltered employment are $23.35 for men and $19.77 for women. The overall average is $22.09. Rates of pay are often lower than the expense involved in getting to work. These wages are extraordinarily low. Various reasons have been offered as justification for these low rates of pay, including:

pay rates are set so as not to effect the Sheltered Employment Allowance (SEA: see below for more detail) or Invalid Pension (IP); inability of workshop proprietors to pay award wages; profits made are often used to subsidise other services (e.g. residential) and thus cannot be paid in wages; slow working rate and low productivity levels of workers; high supervision rates; longer training periods than for employees without disabilities; employees are retained during periods of no work; provision by management of non-employment services.

The low rates of pay do not accord with the ACTU Disabled Workers Charter of 1981 which provides that 'payment should be commensurate with the work carried out and not dependent on the strict income tests applied to both the IP and the SEA'. it is also in discord with the general Australian principle of 'a fair day's pay for a fair day's work'. Workshops have been criticised for offering very poor personal and industrial conditions to their workers. Many workers complain primarily about the lack of respect with which they are treated by management and non-disabled supervisory staff. For example, many resent having to ask for

permission to leave their station to get a glass of water or to go to the toilet. There have been some complaints of management interference in the private lives of workers, such as the forbidding of intimate or personal relationships between workers in their own time. One Sydney disability worker reported that a woman with an intellectual disability in her late twenties had been threatened with exclusion from both the workshop where she worked and the residence in which she lived if she continued her friendship with a male worker at the same workshop. Other issues of concern include confidentiality of personal information contained in employee records and the refusal by some managements to allow workers to form workers' committees. One workshop is reported to have terminated the employment of a worker with an intellectual disability after she became involved in an advocacy organisation. A complaint that is consistently made is that workers are often treated like children by supervisors and management. Many of these problems could possibly be overcome by the unionisation of sheltered employment and its placement within the normal arbitration system. If it is agreed that people with disabilities working in sheltered employment are employees, then the right to organise industrially must be conceded. Sheltered workers in New South Wales do not currently belong to any union and are thus denied the protection and support that such membership affords. In February 1988, the question of unionisation for sheltered workshop employees was considered by the New South Wales Labor Council (the Council) at its Annual Meeting. The decision of the Council to consider its position was apparently closely linked to recent claims of exploitation and abuse in workshops. For example, shortly before the meeting, allegations of cruelty and physical assault were raised in Parliament against a workshop at Taree in the north of the State. There had also been consistent pressure from some quarters of the disability movement who felt that the union movement as a whole was discriminating against disabled workers by refusing to extend membership and advocacy services to them. it is arguable that abuses (whether financial, personal or physical) can occur in workshops because of their isolation from the community and the normal channels of industrial arbitration. The reluctance of the union movement to become involved in the issue of sheltered employment (and thereby provide some independent observation) must be considered to have exacerbated the situation. At its meeting the Council responded to these concerns with what many see as a compromise position. The Council gave general support to the principles espoused by the Disability Services Act. It also endorsed the concept of equal pay for work of equal value, but stated that it must be recognised that there were difficulties in enacting this principle where workers with a disability were involved. The Council's submission to the Green Paper on Industrial Relations in New South Wales of 1988 basically recommended that there be an investigation and review of the different methods and approaches available to provide access for disabled workers into open employment (but without prejudice to the Labor Council Wages Policy). The Council's fmal position was that it supported the implementation of award conditions and occupational health and safety standards for sheltered workshops, but that any policy on award wages required further study. Thus the proposal of access to existing unions or the establishment of a Disabled Workers Union is not a part of the labour movement's policy in New South Wales. It may well be that until the union movement is willing to become involved in the issue of

sheltered employment, workshops will remain outside the working life of the community and excluded from the protection that such involvement affords. Australian Capital Territory (ACT) The project worker for the ACT reported that, in sheltered workshops:

people with disabilities are referred to as 'employees', while employees without disabilities are 'staff; people with disabilities are paid wages based on productivity and the inherent inhibition of the IP, while staff receive award wages; most people with disabilities are not members of unions, while most staff are members; some staff without disabilities react to people with disabilities in a patronising and intolerant manner; all staff and employees are covered for compensation, and leave conditions (sick, annual) are also the same. Some people with disabilities, however, have not taken up their recreation leave. In one case an employee had accumulated 12 months recreation leave.

Wages in ACT workshops range from 50 cents per hour to $2.00 per hour for employees with disabilities. One of the most alarming features of the wage structure is that even in cases of directly comparable work, employees with disabilities receive non-award wages. In one case, three staff had been appointed to an industrial relations team to provide support, amongst other things, to an 'Employee Representative Committee'. Two members of the team did not have disabilities and were on award wages; the member with a disability remained on sub-award wages. It must be stated that the major service provider in the ACT is working towards a personnel policy 'which reflects typical industry standards and which does not differentiate between employees who have disabilities and those who do not' and that, subsequent to collection of information, action was taken to adjust terminology of 'staff and 'employee'. Notwithstanding this, the service provider believes that: recognition must be given to the capacity of the Association to pay for the removal of those distinctions which are financially based. For this reason the distinctions apparent in remuneration levels will remain pending government intervention; i.e. until the Association is subsidised by government to an extent where it is able to pay realistic wages. In the interim the Association undertakes to provide a minimum wage for a 40 hour week which shall, when added to Social Security payments if applicable, be not less than the currently published poverty line for a single person without dependants. Clearly, the implementation of a non-discriminatory policy which relates to recruitment, induction, conditions, staff development, and industrial relations is difficult in circumstances where attitudes of staff are discriminatory. One interviewee commented: Supervisors can be patronising using phrases like 'good boy' and 'good girl', and often tease employees. These are isolated examples but the prevailing attitude is 'I am better

than you'. An employee with disabilities indicated that 'not getting enough pay' was a major grievance, and another felt that 'not being treated like an adult as an equal' was a big problem. Victoria The project worker cited the following comments from a survey on employment conducted by the Victorian Disability Employment Action Centre: As far as I'm concerned there's absolutely nothing good about the workshops. The low pay is the least of the problems. I'd happily do voluntary work if it was meaningful and I was learning something or doing something useful. The working conditions are often atrocious and there's an institutionalised and ghetto atmosphere that's enough to sap anyone's confidence and destroy your initiative. I was never happy in the workshops, but they (the disability organisation) kept me on there because no one, including me, thought I could do anything else. I found the work terribly boring and meaningless. I'd go there all day, be paid nearly nothing and study at night. They'd expect me to be grateful. It wasn't until I started to believe in myself that I got out. I really, really don't want to work in a workshop. I just feel that if I were stuck in one that would be the end of me. I'd lose all my capabilities and turn into a vegetable. The project worker interviewed another person (who had previously worked in a sheltered workshop) who said of such workshops: They are the worst kind of discrimination. On the one hand you are a worker - when there is work to be done. In every other respect the system treats you like an incompetent child. Rights. There aren't any. Not even the right to leave. A friend of mine who could operate his wheelchair except for the brakes, would be left regularly at his work area with the brakes on. One day he was left like that all day. No toilet, no lunch. When he got mad they called him a 'behaviour problem'. Sheltered Employment Allowance Wages in sheltered workshops are currently paid in conjunction with a government benefit called the Sheltered Employment Allowance (SEA). This allowance is payable to a person with a disability who is engaged in sheltered employment at an approved workshop if she or he would otherwise qualify for an Invalid Pension (IP). This requirement means that the person must be 85% incapacitated for work. It currently pays a weekly rate of $120.05 plus an incentive allowance equivalent to rent assistance of $15. The SEA is paid by the Department of Social Security to the workshop management, and it is then paid by the workshop, along with any 'wage' to the person with the disability. The maximum a person on this benefit is allowed to earn without tapered reductions to the benefit is $40 per week. Extra income which amounts to $81 or more will result in the forfeiture of Pensioner Health Benefits concessions. Such provisions represent disincentives to workers who might otherwise attempt to maximise their income; it also encourages sheltered workshop management to use income test thresholds to determine

maximum rates of pay. This system of payment and the amounts involved have been criticised by the disability movement (e.g. ACROD 1986). An alternative scheme was mooted in Towards Enabling Policies. The suggestion (which has been supported by sectors of the disability movement) is that money equal to the invalid pension should be paid to individuals to represent a minimum wage. The recommendations of Towards EnablingPolicies provided for a person in receipt of low productivity-based wages to receive additional income support subject to the income test. Towards Enabling Policies also discussed a possible eligibility ceiling of earnings of about $150, although no recommendations were made in this regard. New Directions also recommended change; it suggested that the federal Departments of Conimunity Services and Health, and Employment and Industrial Relations establish a productivity based minimum wage for people in long-term sheltered employment. Schemes such as these would give people with disabilities a clear incentive to increase skills which in turn would improve their chances of obtaining and retaining open employment. It would also go some way to ending the poverty trap in which people with disabilities working in sheltered employment often find themselves. Income Support The Department of Social Security's arrangements which provide income support for people with disabilities are comparatively complex. Primarily, income support for people with disabilities is provided through:

the invalid pension; the sickness benefit; and a range of repatriation pensions and allowances.

Other relevant cash payments include:

special benefit; sheltered employment allowance; rehabilitation allowance; carer's pension; mobility allowance; and domiciliary nursing care benefit.

Towards Enabling Policies examined the current structure of social security programs for working age people with disabilities within the context of the changeable Australian demographic structure and labour market, and in community attitudes and expectations.Towards Enabling Policies formulated some of the major issues as follows:

whether it remains appropriate to make the distinction between permanent incapacity for work for invalid pension and temporary incapacity for work for sickness benefit rather than a distinction between long-term and short-term reduced capacity for gainful

employment;

whether there is a more appropriate means by which to establish entitlement to invalid pension than the existing 85 per cent permanent incapacity criterion. More fundamentally, what is the most appropriate formulation to reflect the complex relationship between impairment and reduced capacity for employment and how should this be expressed in legislation and in administrative guidelines; how to restructure income support for people who have disabilities which substantially restrict their workforce potential so as to enable recipients to have economic security and dignity. The objectives of income support arrangements for all recipients must include economic security and dignity; as much for those who are unemployed or caring for children alone as for those whose workforce incapacity arises from a medical condition; the need for income support which provides the conditions for economic security and dignity is especially highlighted where it is likely that a disabling condition will cause workforce incapacity for a long period of time and therefore where time spent in receipt of income support is likely to be of a long duration.

Towards Enabling Policies also attempted to:

assess ways to reformulate income support arrangements so as to reduce barriers to workforce participation and to support movement into a range of employment settings; identify the groups which may require special consideration in the development and administration of disability-related income support payments; evaluate the role of a disability allowance in recognising the additional costs which must be met by people with disabilities, particularly those engaged in employment, education, training, rehabilitation programs, job search, household work and childcare, and other community activities (the Office of Disability's Costs of Disability is an essential reference in this area); evaluate the extent to which income support schemes can be better integrated with labour market programs and employment programs in providing assistance to people with disabilities to enter the mainstream of employment and community life.

The proposals of Towards Enabling Policies have been accepted by sectors of the disability movement. Continuing consultation with people with disabilities is needed to ensure that the recommendations of Towards Enabling Policies are acceptable to those most concerned. Legislation related to employment conditions There is no special law setting out and protecting the rights of workers in sheltered workshops. The relevant areas of law relating to conventional employment include industrial awards, the common law and legislation. The legal status of workers in sheltered workshops revolves around the question as to whether they are employees or consumers of a service. There has been no determination of this question at law.

The usual test of employment status rests on the existence of a contract for service or contract of employment. Such contracts need not be formal, but can be implied from the actions or words of the parties involved. Peter Rozen, in his Pilot Study on Legal Issues in Sheltered Employment (published in 1986 by the Victorian Law Foundation) applied the common law tests and concluded that workers in sheltered workshops were indeed employees within the meaning of the law. This is also the view of the Intellectual Disability Rights Service, a community legal centre based in Sydney. Where a person is an employee the law imposes certain duties on his or her employer and provides certain protections to the employee. Each State has worker's compensation legislation which sets up compulsory schemes for employers to enable them to pay compensation to workers injured in the course of their employment, or travelling from or to work; such legislation covers workers who are employees. Many people working in sheltered workshops could come within the scope of such legislation, but there has been no decision by the courts on this so the situation remains unclear. Industrial awards are agreements that set minimum standards for wages, penalty and over-time rates, sick pay entitlements, rights to information about pay and any deductions made, and many other detailed requirements for work conditions. Awards are the main source of the terms and conditions of work for 90% of 's workforce. There are currently no awards for workers in sheltered workshops; these workers, however, might be able to obtain awards if they joined existing unions or formed a union of their own which then applied to the court for an award. The common law obliges an employer to provide a safe workplace and suitable work as well as reasonable notice of dismissal. The confusion about the legal position of workers in sheltered workshops means that the traditional common law protection and additional legislative benefits are, at least, unsure and possibly unavailable for these workers. Also, different types of work and work arrangements (which vary from workshop to workshop and even from worker to worker) make classification in any of the usual ways difficult. Any future finding that people working in sheltered workshops are employees, or amendments to existing legislation specifically including such workers in the definition of an employee, will clearly have great significance. The Commonwealth Employment Service (CES) The functions of the CES, according to section 6(a) (ii) of the Commonwealth Employment Seivice Act 1978, include the following: to make special arrangements and provide specialfacilities wherever necessary so as to assist such persons who are immigrants orAboriginals, who are young orhandicapped...or who otherwise have special requirements or disadvantages in relation to employment. Information collected by project workers indicated that the experience of people with disabilities suggests a less than supportive role by the CES at the regional level. A recent report released by the Disability Employment Action Centre also suggested that CES users with disabilities were dissatisfied with the assistance provided. Comments included: I went there once and they more or less told me that I was unemployable and not to bother to come back... I felt really disheartened. I found them very discouraging. All they could ever say was that I couldn't do what I

wanted to do because of my disability and lack of experience. On the surface they can be quite friendly andpleasant but in actualfact they just don't care and are incredibly unhelpful. I would like some information on just how many people with disabilities they actually get work. I think they're just hopeless. I find those cards too hard and confusing to read and they just say they don't think any of the jobs would be suitable for me. They never, never ring anyone up for me or actually sit down with me and help me. They're hopeless. In five years I've never got a letter from them saying come in and try for a job. Sometimes they won't let me try for one because they assume I can't do it. I hate them. Generally they're very unhelpful and have a rotten attitude. Once I wanted to do a job search, and they said we're too busy now, come back at 3.00 p.m. So I came back at 3.00p.m. and they still wouldn't do it. That sort of thing happens all the time. I absolutely hate going in there. It's crowded... a horrible place to be. When I rang about jobs on the boards they were always taken. Later, after I ticked 'epileptic 'on the forms, instead of giving me extra help, they just never contacted me again. This Discussion Paper can only highlight the apparently serious inconsistency between policy and practice in the operation of the CES. A more detailed analysis of the denial of the legal right of access to the CES by people with disabilities is needed. Conclusion This Discussion Paper has not examined the role of:

the Commonwealth Rehabilitation Service; or programs administered through the federal Department of Employment, Education and Training such as Skillshare, obstart etc.

The Commonwealth role in funding services for people with disabilities in terms of income support, legislation relating to employment conditions, and in the direct employment of people with disabilities is complex. The inconsistency between legislation, policy and practice is also evident. The possibility of enacting special legislation stating general principles and defining behaviour that is discriminatory should be examined. Legislation that gives a name and definition to such practices at least provides a standard as to what is to be seen as fair and just. It is likely that a person with a disability will be exposed to a substantial range of Commonwealth services during his or her life. This contact could take the form of receipt of cash payments, interaction with departmental personnel, or employment in a program which is presumably guided by the Principles and Objectives of the Disability Services Act. it is important then that the Commonwealth has a consistent philosophy which underpins its service delivery; the Principles and Objectives of the Disability Services Act appear to be a sound starting point.

Barriers to Open Employment

Many factors exist which constitute substantial barriers to the ability of people with disabilities to find work in the open workforce. These include the attitude of employers to the employment of people with disabilities, the financial disincentives to open employment, the lack of what can be essential personal care in the workplace, and the indirectly discriminatory policies of some major employers. Some employment officers contacted by project workers felt that a common problem was not unemployment due to disability but underemployment and lack of advancement once in the workforce. Again, employer attitudes may be significant here. New South Wales A 1979 survey of employment agencies conducted by the Anti-Discrimination Board showed that in the experience of the majority of respondents, employers were found to be fairly unwilling or very unwilling to consider an applicant with a disability for a position in the employer's organisation. A total of 15.4% of employment agencies considered employers very unwilling, while a further 25.6% were found to be fairly unwilling. Only 3.8% of respondents considered employers to be very willing to hire an employee with a disability. A similar survey, conducted by the Board of Employers in the manufacturing, retail and service industries in Sydney, suggested negative employer attitudes to be a problem. Only 25% expressed themselves as willing to hire people with a disability. This is borne out by the experience of the Job Support Program, a scheme to place workers with a disability in the open workforce. This program has had some success but has also encountered many rejections from employers who seemed unable to consider an employee with a disability despite the intensive support that the employee would receive from Job Support workers. Whilst Job Support workers could not attribute this to discrimination, employer attitudes must be acknowledged as a significant factor. Partly this attitude is reflective of the general community attitudes towards people with disabilities which seem to derive from a fear and horror of the unknown. Common community attitudes towards people with disabilities include an equation between disability and dishonesty, stupidity and even sexual perversion. Certainly it would be too optimistic to expect employers as a group to be free of the prejudices which are so common in the wider community. It may be that amendments are needed to existing legislation to render these attitudes unacceptable at law, as this does not seem to be the case currently. Negative attitudes about people with disabilities can be attributed in part to factors other than pure prejudice. Misinformation about the relevant issues is often a problem. For example, many employers seem to be swayed by provisions under the Workers Compensation Act 1926 which render an employer liable for the exacerbation of an existing condition in an employee where the employment was a contributing factor to any such exacerbation (s.6(1)). Some employers seem to feel that people with disabilities are more likely to suffer health problems than are other employees, and would thus be a financial liability in terms of workers compensation. The 1980 Anti Discrimination Board report Discrimination and Intellectual Handicap notes the case of a woman with an intellectual disability whose employer required her mother to sign a waiver exempting the employer from liability for workers compensation. Whilst it is impossible in law for an employer to divest him or herself of this liability, this is certainly an example of a person with a disability being subjected to less favourable work conditions than would a non-disabled employee. Employer policies may also play a part in indirectly discriminating against people with

disabilities. The State Public Service may be a major culprit here. While it is recognised this service has or has had affirmative action policies and does employ people with disabilities, it has been suggested that the service's grading policies seem to prevent promotion of people with disabilities. The situation was described by one employment placement officer as 'insidious' and by another as 'a scandal'. A lack of flexibility in grading methods and duty statements seems to be at fault. For example, a Grade 1 Officer with a hearing impairment would be prevented from advancing to Grade 2 by the fact that the duties of a Grade 2 officer include telephone work. This 'problem' could easily be overcome, for example, by an exchange of the particular duty for another duty such as additional written work. This sort of adaptation however, is not permitted. One employment placement officer related the story of a man with a hearing impairment who commenced work in the State Public Service at Grade 1 and has remained there for twenty years without advancement, watching others around him gain continuous promotion. The reason was not a lack of application or ability on the man's part since he had successfully undertaken relevant management courses at a local TAFE college. The real reason for his unacceptable stagnation was considered to be the inflexibility of duties, thus preventing his promotion to Grade 2 simply because he could not use a telephone. Another barrier which operates to discourage workers with a disability from seeking, or remaining, in the open workforce are the many financial disincentives. The most obvious is the loss of government assistance (which is automatic for people with disabilities who become workers). All workers lose their access to the Program for Aids for Disabled People (PADP) benefits when their employment commences. The PADP scheme assists people with disabilities to purchase necessary prosthesis, aids and appliances. Given the often high costs of these items, this assistance can be invaluable. The purchase of a wheelchair alone will amount to approximately $5000. For a person in the workforce (and often on a low wage) these costs, if borne alone, can be prohibitive. Further costs can be added by transport requirements. Many people with a disability need to make use of the Disabled Taxi Service. The Australian Quadriplegics Association estimates that, depending on the distance from home to work, the cost of using this service, even though ubsidised by the State Government, averages $100 per week. This phenomenal amount would present a difficulty to high wage earners; for those on a lower salary, the problem of transport costs must seem insurmountable. For many people with disabilities, the effect of these substantial costs attributable to their disability would mean that they in effect pay for the privilege of working. Many would be fmancially better off to remain unemployed, and in receipt of government benefits and assistance programs. To overcome this anomaly and lessen the extraordinary disincentive to work, the Australian Quadriplegics Association has suggested that the Federal Government establish an interest free loans scheme available to people with disabilities to assist them to purchase major items such as wheelchairs. Smaller items such as bowel and bladder necessities should be available free of charge from a government supplier. For those people who are able to drive to work, parking can be a major and expensive difficulty. Whilst most city and town councils set aside a certain number of Disabled Parking Places at shopping centres and other public places (such as Tertiary and Further Education (TAPE)

colleges) these are too few and often too far away from the workplace to be of use to some employees with a disability. For many, it is necessary to rent a parking place near the workplace. This can be an extremely costly procedure, in Sydney particularly. Inner Sydney parking costs as much as several hundred dollars per month, another financial cost which is often unbearable. Northern Territory The employment situation in both Alice Springs and Darwin is reportedly very tight, with large numbers of transient people applying for all types of employment. A parent in Alice Springs described the employment possibilities for her daughter as equivalent to that in any other country town. Her daughter has participated in work experience through the special unit at high school and believes that employers are not adequately prepared for the placement of a person with a disability; they don't know what to expect. She expressed concern about the limited resources to train employers and particularly the importance of consistency of training and task orientation/work skills, which have been crucial factors in deciding her daughter's future in the workforce. 'Project Employment' in Darwin commenced as a demonstration project under the Commonwealth Disability Services Program. It operates in conjunction with the Community Youth Support Scheme (CYSS) and hence offers its clients the opportunity to participate in mainstream CYSS courses. Statistics on client outcomes indicate the number of placements of people who receive services from this agency and the numbers and reasons for de-registration of clients and any terminations/dismissals from employment. This agency has experienced a reticence to employ people who have a disability, particularly those who have obvious physical disabilities. At times, there is a lack of understanding on the part of some employers as to the capabilities of their clients, which can result in an employee being given tasks beyond their existing capability or being relegated to some other menial job (such as sweeping the floor), for which they were not originally employed. All employees receive award wages for their hours of work and some are union members in areas where compulsory union membership prevails. Although some clients have been placed in full time employment, others are working only part-time and are merely supplementing their pension with the wages earned through open employment. Three clients interviewed provided a history of repeated discontinuations in their employment. The agency expressed concern about attempting to place clients who have some behaviour problems, as they feel that any problems presented to an employer by these people would jeopardise future employment possibilities for other clients. South Australia The forums held in South Australia indicated that the following priorities should be adopted in an endeavour to overcome the barriers to open employment which exist for people with disabilities:

review the processes of agencies involved in placing people with disabilities in employment; community education;

provision of employment information in different forms, not just written formats; affirmative action policies; training programs; advocates in places of employment; federal anti-discrimination legislation.

Western Australia The Discussion Paper by the Working Party on Equal Opportunity Legislation for People with Disabilities A Fair Go for People with Disabilities considered that 'the area in which the greatest need for action was seen as that of employment'. Many of the submissions made to the Working Party emphasised the need for community education, the need to educate employers, and the need for some people with disabilities to change their attitudes. Accordingly, the Working Party recommended: that the Commissioner for Equal Opportunity place priority on the development of an employer-directed community education program designed to dispel the myths about employees with disabilities. The Working Party also felt that it was important to see a greater range of incentives available to employers to take on people with disabilities. The Working Party favoured methods such as tax relief, rebates or grants rather than wage subsidies, because it was considered that wage subsidies could encourage employers to retrench workers when the subsidy period expires. The Working Party also felt that wage subsidies detracted from the principle of evaluating a person on his or her individual merits. The Working Party felt that the greatest need was to encourage employers to take on people with disabilities by alleviating any concerns about extra costs incurred as a result of modifying the workplace, providing aids, special training etc. Other recommendations of A Fair Go for People with Disabilities relate to a range of employment options and practices. Following the Working Party's fmal report, a Bill was introduced into and passed by the WA Parliament during 1988 and the Act to amend the Equal Opportunity Act 1984 to include impairment was proclaimed in December 1988.

Major Issues and Recommendations

The information collected by project workers in NSW, SA, WA, and the NT indicates the substantial barriers that exist for people with disabilities in their attempts to secure open employment. The two key barriers are:

employer attitudes; and financial disincentives.

The three key responses to these barriers are:

community education;

appropriate financial incentives from Federal and State/Territory governments; appropriate anti-discrimination legislation.

To ensure that people with disabilities have the right to economic security, useful, productive work and recognition of their individual capacities and skills, and to ensure that they can secure work in the most integrated setting possible, it is essential that Federal and State governments respond to the discriminatory practices highlighted in this chapter. Accordingly 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 possibility of extending 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, and appropriate anti-discrimination legislation be enacted by Governments in those jurisdictions without such specific legislation.

Chapter 3: Education

Issues Addressed Rights Denial of Rights and Discrimination Commonwealth Involvement

State Education Authorities Legislation State Education Authority Policies Policies in practice Continuing Education TAFE and People with Disabilities (The TPD report) Assistance for Disabled Students in Post-Secondary Education : perception, needs and responses ('The ADSPSE report') Major Issues and Recommendations

Issues Addressed
The focus of the investigation into the provision of education for students with disabilities was threefold:

to examine the Commonwealth Special Education Program which is now the responsibility of the federal Department of Employment, Education and Training; to examine the provision of primary and secondary education for people with disabilities in each State/Territory of Australia, considering each State's legislative provisions; policy directions; and policies in practice; to examine the difficulties encountered by people with disabilities in gaining access to continuing education.

Rights
Principle 6 of the UN Declaration on the Rights of Disabled Persons states in part that: Disabled persons have the right to... education, vocational training and rehabilitation...which will enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration. Principle 2 of the UN Declaration on the Rights of Mentally Retarded Persons states that: The mentally retarded person has a right to proper medical care and physical therapy and to such education, training rehabilitation and guidance as will enable him to develop his ability and maximum potentiaL Article 2 of the Declaration of General and Special Rights of the Mentally Retarded (as adopted by the International League of Societies for the Mentally Handicapped) states that: The mentally retarded person has a right to proper medical care and physical restoration and to such education, training and rehabilitation and guidance as will enable him to

develop his ability and potential to the fullest possible extent. No mentally handicapped person should be deprived of such services by reason of the costs involved. The key rights in these provisions are those of:

appropriate educational provision; appropriate provision of resources; and social integration as an aim of education.

The organisation Queensland Parents of People with a Disability (QPPD) state in their Policy Statement on Education of Children with Special Needs that: ... all students with a disability have the same rights as other students to a free education that caters for them:

academically; socially; emotionally; physically; psychologically,

in the most suitable setting and locality. In addition to the rights espoused by the UN instruments as noted in the Introduction, this Discussion Paper endorses the rights espoused by the QPPD. In acknowledging that people with disabilities enjoy these rights, additional resources and services need to be provided over and above those required by persons without apparent disabilities. The QPPD Policy Statement suggests further that: The education of students with a disability should be valued as highly as the education of students without apparent disabilities. Acknowledging the value of educating students with a disability requires acknowledging that they require options for the type and location of their education ... In order to have any choices at all, students with a disability need a range of services, in a variety of settings relevant to their expressed needs. They will require an investment in human and material resources class for part or whole of their education exceeding that which is applied to that of the average student...

Denial of Rights and Discrimination

Commonwealth Involvement The Federal Government has direct responsibility in two major areas of education for children with disabilities - early intervention and school age education. New Directions recommends that the Federal Minister consider:

re early intervention:

giving all disabled children below school age access to an appropriate multi-disciplinary early intervention program; rationalising the role of Federal, State and non-government organisations in the provision of early intervention programs; encouraging State Governments to acknowledge their responsibility in this area by cost sharing early intervention programs with the Commonwealth; encouraging State Education Ministers to establish a data base on disabled children to facilitate longer term planning; and further developing home and centre based programs which would include parent education and training. re school age education: ensuring the right to free and appropriate public education for all school aged children, including those with disabilities; ensuring that disabled children are effectively integrated into mainstream schools and classes; providing funding to enable the transfer to State Education Departments of the current non-government sector education programs for disabled children funded through the Schools Commission; and providing funding to enable disabled children to gain access to mainstream schools by upgrading physical accessibility and providing notetakers, support teachers, therapists and other staff, and by developing alternative methods of teaching and assessment.

It should be noted that since the publication of New Directions, responsibility for the Commonwealth Special Education Program has been transferred to the federal Department of Employment, Education and Training. Discussion later in this chapter indicates that most of these recommendations are still in the process of being implemented. The aim of this section is twofold:

to outline the different elements of the Commonwealth Special Education Program; and to draw on the recommendations of the report The Special Education Services Element of the Commonwealth Special Education Program: a Review (The SES Review), which assesses existing funding arrangements for special education and support services such as therapy, transport and equipment relating to schooling for students with disabilities in all States and Territories.

The Commonwealth Programs for Schools Administrative Guidelines for 1988 indicates that the Special Education Program provides assistance to education authorities and non-government voluntary and community agencies to improve the quality and coverage of educational services for children with disabilities, including those living in institutions.

The Commonwealth provides financial assistance for:

Special Education Recurrent Grants: which supplement the operating costs associated with educating children with disabilities in special and regular schools and in centres; Integration Grants: which support the principle that, where possible, children with disabilities attend regular schools; Special Education Services (SES): which provide educational, training and related support services for children with disabilities attending government and non-government schools and centres; Early Special Education: which supports educational services to children with disabilities who are below school age; children in residential institutions: which provides supplementary educational support to broaden the general experience of young people living in institutions for medical, rehabilitation, welfare or correctional purposes; children with severe disabilities: which funds educational programs for children with severe disabilities living in institutions or in their own homes.

The SES Review indicates that many of the uses to which SES funds are put, are similar to those for which other elements of the Commonwealth Special Education Program also provide funds. Consequently, the SES Review addressed three questions:

what is the present role of SES funding and what may such roles hope to achieve in future developments in Australian special education? what is the most appropriate method of distributing funds to the States? what should be the guidelines by which SES funds are distributed?

In relation to the first question, the SES Review concluded that: SES funding is utilised in three ways. First, it supports the direct costs of educational provision (e.g. teachers' salaries or teacher aides) in either special or regular schools, where these are not fully subsidised or provided by state education authorities. Secon it supports the delivery of a wide range of support services, such as therapy, equipment and transport which complement the education program. Finally, it supports a range of community based activities provided by agencies that may have only an indirect association with education. These latter services can be considered as supplementary to the education program. It would appear then that: On the one hand there is emphasis upon recurrent support of the cost of special education provided in non-government special and regular schools. On the other hand there is emphasis upon provision of support services in both restricted settings and in the form of outreach provisions (with the latter being increasingly emphasised). Complicating both of

these paths are conflicting perceptions of the status of integration policy as either regular or special education policy. Is integration the process whereby regular schools accept responsibility for education of an increasing proportion of the student population or does integration represent an expansion of special education into the regular school sphere? Quite different futures are implied for the provision of services depending on which path is selected and if too wide a range of objectives is nominated for the program there is the danger that none will be achieved satisfactorily. In relation to the third question the SES Review argues that the guidelines for SES funding should in part reflect:

an identification of the relevant target population; students whose disabilities give rise to significant educational handicap; and the emerging priorities and structural changes that are occurring in Australian special education, particularly integration and the principle of the least restrictive environment.

The recommendations made by the SES Review could ensure that the SES has a more direct and equitable funding direction, which takes into account the current focus on integration, while at the same time recognising that support services for students in special schools are a Commonwealth responsibility. The objectives of Commonwealth grants for early special education relating to children with disabilities below school age are, amongst other things, to provide for:

the preparation of children for integration into regular schools; the integration of children with disabilities into regular pre-schools; and the involvement of families in the learning processes of young children.

Information collected for this Report indicates that the Recommendations of New Directions in this area have not been implemented, particularly the recommendation which states that all children with disabilities below school age should have access to an appropriate multidisciplinary early intervention program.

State Education Authorities

Legislation
New South Wales

The Education and Public Instruction Act 1987 is the legislation governing the provision of public education in NSW. As this legislation stands, no child in NSW has a legally enforceable right to education. Rather the legislation permits the Minister to do certain things (such as establish schools) but does not impose a duty on him or her to do so. Section 6(a) of the Act provides that schools 'may be established and maintained' at the Minister's discretion. Sections 4(1) and 4(1 )(A) impose a duty on the parents of children and infirm children respectively to send their child to school where there is a school or special school

in the area. There are several defences available to a parent who fails to fulfill this duty, including section 4(4 )(e) which allows a child's temporary or permanent infirmity to be a defence. The extent of the Minister's power to exempt a child from compulsory education is so considerable as to render the concept of compulsory education a nullity. This is especially so in the case of a child who may require special facilities or services which the Minister is not legally obliged to provide, and therefore cannot be compelled to provide. The provisions of the Anti-DiscriminationAct 1977 (ADA), whilst rendering discrimination on the grounds of physical or intellectual disability in the provision of public education unlawful in certain circumstances, do not change the reality of the Public Instruction Act. The ADA does not apply where the student requires services or facilities not required by students who do not have a disability, and which cannot be reasonably provided or accommodated by the education authority (sections 49(J)(3), 49(Y)(3)). Thus it may be discriminatory conduct for a large school appropriate for disabled access and having necessary trained staff to refuse to enroll a child with a disability, where it would not be discriminatory for a small country school without disabled access and without adequate staff resources to refuse to enroll the same child. The ADA would have no effect in any attempt to compel the Minister to provide a service to children with disabilities, since the most common reason for refusal of enrolment is lack of available resources to educate the child - a reason which is acceptable under the ADA.
Victoria

Existing Victorian legislation does not give any child, with or without a disability, a right to an education. It has been argued that the Education Act 1958 implies some rights and there is a community expectation that some rights exist. In fact, existing legislation places an obligation on parents to ensure their children attend school but does not bestow on children a right to an education. Within the legislation, requirements on sending a child with a disability to school are less rigid than those applying to non-disabled children.
Australian Capital Territory (ACT)

The Education Ordinance 1937 and the ACT Schools Authority Ordinance 1976 are the legislative bases for the provision of education in the ACT. While attendance of children between 6 and 15 is generally compulsory ( s.s. 8-9), exemptions exist which may extend to children with intellectual disabilities. An exemption can be obtained if the ACT Schools Authority has issued a s.16 certificate: grounds for issuing a certificate include the situation where 'such conditions exist as make it necessary or desirable that the certificate should be granted'. An exemption from attendance is given if the child has a permanent infirmity. Such exemptions can be construed as an abdication of duty by the ACT lSchools Authority to provide adequate and appropriate schooling for people with intellectual disabilities. There appear to be no enforceable rights to education in general, to a particular standard of education, or to education at a particular school.
Queensland

The legislative base for the provision of education in Queensland is the Education Act 1964-74. S.26 of the Act states that 'Special education may be provided or contributed to by the Minister

for every handicapped child who is of the age of compulsory attendance'. This Act does not demonstrate a commitment to provide the necessary resources and educational service options. QPPD has recommended that the Education Act 1964-74, S.26, should be changed from 'Special education may be provided and contributed to..., to 'Special education will be provided and contributed to..."
Tasmania

The legislative base for the provision of education in Tasmania is the Education Act 1932. No information on exemptions was available at the time of this Report.
Northern Territory

The legislative base for the provision of education in the Northern Territory is the Education Act 1979. While as a general rule attendance of children between 6 and 15 is compulsory, s.8(3) of the Act allows exemptions at the Minister's discretion.
Western Australia

The discussion paper A Fair Go for People with Disabilities pointed out that the Education Act 1928 does not contain provisions ensuring the acceptance of disabled and handicapped children within the education system. Although the Act makes school attendance compulsory for children from the age of six until leaving age, there are various provisions which could allow either the school or the parents to prevent a child from receiving a formal education. For instance, section 14 of the Act enables parents not to send their child to school if the child is sick, there is a danger of infection, or the child has a permanent or temporary infirmity. 'Incorrigible' children (who exhibit immoral behaviour or gross conduct) may be removed from the school situation. Another section of the Education Act (section 20B) gives the Minister the power, on the recommendation of an advisory panel, to prevent a child with a severe mental or physical disability from attending a school. As the compulsory education provisions do not apply to such children, they will not receive any education unless their parents make their own arrangements.
South Australia

Proposed amendments to the Education Act 1972 remain confidential, and it is not known whether these amendments will ensure that a child has a right to an education. State Education Authority Policies
New South Wales

The Department of Education issued its most recent policy on the enrolment of children with disabilities on 4 February 1988. The Department's current policy is one of integrating the student with a disability into the mainstream where possible and practicable, and where it is in the 'best interests of the child'. Statistics do not necessarily bear out the success of this policy. The principal of a school to which a child applies for enrolment is the officer responsible for making or refusing an offer of enrolment. The principal can require the child's parents to

produce a statement describing the child's condition and requirements, including a medical certificate where he or she thinks it will be relevant. This information is not required of a nondisabled child applying for enrolment. it is arguable that to require a medical certificate constitutes a breach of the child's right to privacy (no detail was available on what happens to this information once provided, and on the application of a policy of confidentiality, if any). Where the principal decides to refuse enrolment, his or her decision can be reviewed by the Regional Director on application by the parents. Where the child is permitted to enroll, his or her continuing enrolment will be subject to review and may be terminated at any time. It would not be normal procedure to subject the application of a non-disabled child to such a process.
Victoria

The Ministry of Education policy is based on the recognition of the rights of people with disabilities and impairments to participate fully in community life. Ministry strategies are aimed at the integration of students with disabilities into mainstream educational settings. The impetus for this policy has come from the report of the Ministerial Review of Educational Se ,vices for the Disabled released in 1984. The Review Committee preparing the report adopted five guiding principles, two of which are of particular relevance to this Discussion Paper: Principle 1: that every child has a right to be educated in a regular school. It follows from acceptance of this principle that the Government must ensure that regular schools can provide and have access to a range of education options and services for all children, including those with impailments, disabilities or problems in schooling. It implies an obligation on the part of Government to provide the necessary resources so that schools can effectively and progressively integrate these children. This principle does not require children with impairments and disabilities to be educated in the regular school if this is not their parents' wish. Principle 5: that all children can learn and be taught. This principle departs from earlier assumptions of ineducabiliry and challenges the practices of no educational provision, or limited pro vision, for certain groups of children. The Review made a total of 143 recommendations, and in May 1985 the Victorian Government confirmed its policy on integration as expressed in the Review report. Measures to overcome the discriminatory nature of previous educational provisions to children with disabilities in Victoria has undoubtedly had impact. The existence of the Integration Unit within the Ministry of Education, and Enrolment and Support Groups in each school, which involve parents and parent advocates, are positive steps.
Australian Capital Territory

In November 1986 the ACT Schools Authority (the Authority) produced its Policy for Services to Students with Special Needs. This policy states that: ...the long-term goal of special education is similar to that of the education of all other children. The Authority has a societal commitment to educate all children together as far

as it is practicable. This statement is balanced by: The Authority will not require children with special needs and others to be taught together in circumstances which would educationally disadvantage any of the students involved. The Authority emphasises that the home school should make every attempt to provide the necessary assistance to retain students in mainstream as far as practicable. Resources will be provided as far as possible to facilitate the school's commitment. The clauses 'as far as practicable' and 'as far as possible' allow the Authority to provide education in a range of segregated settings. There are special primary and high schools for people with various degrees of intellectual and physical disability. Despite the Authority's philosophical commitment to mainstreaming, some interviewees reported that lack of resources often left few options. One interviewee responded: ...it's true that every parent has the right to mainstream - but if the choice is made to mainstream there is no right to demand extra support. This would mean, for instance, that if parents decided, against the advice and assessment of the Authority's workers, to send their child to a mainstream school, there might not be any extra commitment of resources.
Queensland

The Department of Education's Policy and Information Statement of February 1986 states that the Department of Education 'supports a policy of integrating handicapped students in regular schools when it is in the best interests of the handicapped students to do so'. Shortfalls in resourcing, however, mean that integration is a difficult ideal to realise, and that some segregated settings are under-resourced. Some resource issues include:

lack of necessary staff in special schools - including physiotherapists, occupational therapists and social workers; lack of a range of special educational options - in each region - as part of the general educational provision; lack of a range of types of settings; physical access to and within schools is often difficult, for example, transport to schools, access in schools including ramps etc, and access in classrooms including allowing for adequate space and design; and the uneven distribution of resources and services across disabilities, across regions, and across the strata of Queensland society.

Northern Territory

The Northern Territory's Department of Education Information Statement of June 1988 states as

its overall approach that: Children who are recognised as having special needs should have access to education programs which are appropriate to those needs. The Information Statement goes on to say that: If it is at all possible for a child to receive an appropriate education in a regular classroom, that is where it should be provided. Only when this mainstream experience is demonstrably not in the best interests of the child should a less integrated placement be sought. When such an alternative placement is arranged, a full range of support setvices should be available. In addition to the shortfalls in resourcing, and the perceived lack of commitment to enforce the above policies, particular problems arise in relation to remote Aboriginal Community Schools. There are no specialist teams to adequately assess children in outlying areas. Children who have more severe degrees of disability often have no other option but to move away from their community and family to receive education in either Alice Springs or Darwin.
Western Australia

The Department's Policy on Children in Need of Special Support is designed to:

increase the capacity of the Education Department to provide 'non- labelled' and 'noncategory-based' individually appropriate educational support services to significant numbers of children in primary and secondary schools who are in need of such support; and enable handicapped children to receive an appropriate education in an integrated setting in regular schools.

The essential elements of the Policy are that:

the mode of support must be systematically sustainable; educational support services are based on the individual student's needs; specialised intensive programming and instructional techniques will be used throughout Special Education (Education Support Branch) facilities and services; the education of children with special needs will take place in the least restrictive environment; the education of children with special needs will be provided as close as possible to their homes; a range of services and facilities will be made available for children in need of educational support; the range of children for whom educational support will be provided will include those who are now eligible for entry into special schools, special classes, remedial units and

remedial clinics as well as some who are not eligible for support under existing criteria;

the primary purpose of assessment of children will be to assist in the design of appropriate educational programs and not for the purpose of determining eligibility for entry into, or exclusion from, labelled categories and groups; Education Support Centres will provide a very significant additional educational resource for regular school students and staff; Education Support Centres will provide systematic support for some children who at present receive their education in segregated settings; this policy will remove the category boundaries between schools for the 'physically handicapped' and those for the 'intellectually handicapped'; children who require the very intensive support of these schools will be able to attend their nearest special school; the transfer of large numbers of children into any one regular school will not occur; all Education Support Centre placements will be on a case-by-case basis and parents of the children concerned will be included in the decision-making process; the design of the integration program will take place after careful consideration of the individual child's ability and needs by the joint Education Support Centre/regular school team.

South Australia

Some of the comments to emerge from the consultations include that:

some of the recommendations of the Integration Report 1985 are meaningless; the new Education Review Unit should consult with people with disabilities in formulating new policies and curricula; three or four reviews of education in recent years had been 'filtered out' (amended) to suit the Department, demonstrating a lack of commitment which is reflected in legislation and policy, principals have their own agendas, which differ from the Department of Education, resulting in some schools not facing the responsibility of integration; schools hide behind policy statements such as 'wherever possible' or 'within reason'; this creates loopholes to enable schools and the Department not to take responsibility or be accountable; the policies therefore become weak, if not meaningless.

The previous section outlined the integration policies of certain State and Territory education authorities (see also Appendix IV). Most authorities also have policies which relate to a range of other issues, including:

enrolment procedures; access to therapy; class sizes; school leaving ages; access; and transport to and from school.

The aim of this section is to consider the evidence provided by interviewees as it relates to these disparate areas of policy. Due to the method by which information was collected, the following discussion of discriminatory practices is far from exhaustive. This discussion will examine segregated and integrated settings, and the range of possible settings in between. The QPPD Policy Statements suggest that the following types of settings should be available to students with disabilities:

to remain in a regular class with special assistance provided by the regular classroom teacher with a continuing review of the child's progress, with teacher aide time to support the teacher; to remain in a regular class using a modified curriculum, with teacher aide time to support the teacher; to receive the support services of an itinerant specialist while remaining in the regular class; to remain in the regular class with provision of specialist help by a resource teacher operating from a special education unit, on a support or withdrawal basis; to attend a special class full-time with increasing participation in regular classes; to attend a special school with some provision for: attendance in a regular class, with provision for support services, or social interaction in the wider community during school hours; where a student is unable to attend school, an education program should be available either at home, in hospital, or respite care facility.

The QPPD Policy Statement goes on to say that For all the above options, teachers should have access to other relevant suppoll services where necessary. For example, teachers of regular classes, who have a child with a significant disability, should be relieved of classroom duties to liaise and confer with otherpersons, such as therapists, visiting teachers and guidance officers, involved with the education of the student.

Although project workers differed in their focus, a number of general statements can be made concerning practices of state education authorities in segregated and integrated settings. Although all State and Territory education authorities have written policies which to a greater or lesser extent promote the integration of students with disabilities into regular school environments, these policies are often not supported with the allocation of appropriate resources. In most States, the lack of resources effectively means that many students with disabilities are denied the right to education in a regular school, even where this is the most appropriate setting. Some general issues included the incapacity to resource:

a range of professional personnel; non-professional personnel; physical access to and within schools; access to relevant curricula; special equipment; and access to electronic technology.

In most States, as well, people with disabilities, parents and advocates reported practices which effectively worked against the process of integration. Education authorities themselves are committed to integration 'as far as it is practicable', or 'while recognising the needs of nondisabled children'. Such clauses would not appear to deny a child with a disability access to appropriate education, but the use of such clauses by education authorities, even against the express wishes of parents, is pronounced. Because of this inadequate allocation of resources, and the lack of commitment to implementation of integration policies, special schools, in segregated settings, remain a major focus of educational provision for children with disabilities. Given that this Discussion Paper has defined educational discrimination as occurring when a child with a disability is denied free, appropriate education in the most suitable setting and location for that individual, then special schools need not be discriminatory in themselves. The practices of some education authorities, however, suggest that students at special schools are not valued as highly as their non-disabled peers in regular schools, and that the existence of special schools promotes discrimination. Such practices as:

delayed admission; differing school leaving ages; disciplinary measures; response to non-attendance at school; and

the lack of early intervention programs

indicate that education authorities have not accepted that all members of a community should grow up together, learning to accept each other as persons with rights, and to value each other as participants in the whole society. It is important that students with disabilities have the same access as other students to a free education in the most suitable setting and locality. Areas in which project workers identified discriminatory practices that deserve closer scrutiny include:

in New South Wales early intervention programs enrolment procedures progression to secondary school transport access to therapy school leaving ages in Victoria delayed admission attitudes of school principals school to work transition in the Australian Capital Territory non-attendance at school school leaving ages transport discipline in Queensland physical access to and within schools differentiated curricula isolated areas in Tasmania parental participation in decision making

physical access school leaving ages in the Northern Territory persons in isolated communities in South Australia access to therapy services transport to and from school limited information to parents location of school.

Continuing Education
The focus of this chapter has been on primary and secondary education. Only a few interviews were conducted with people with disabilities involved in continuing education, and with people involved in the provision of continuing education. This section of the chapter concentrates on two main matters:

a brief analysis of the report commissioned by the federal Department of Community Services and Health entitled TAFE and People with Disabilities a brief analysis of the project and report entitled Assistance for Disabled Students in Post- Secondaiy Education Perception, Needs and Responses.

TAFE and People with Disabilities (The TPD report) The TPD report endeavours to provide information and advice on:

how TAFE could best meet the needs of people with disabilities, and how TAFE could offer relevant training to people who will be working with disabled people in the community.

Although the TPD report's surveys and research indicated considerable activity in the training of people with disabilities, the report found that: resources are very thinly spread, programs are overly dependent on the individual efforts of some teachers, most special courses do not have vocational outcomes, linkages between schools at one end of the spectrum and job placement and support at the other end are poorly developed, funding is unreliable, inadequate and insufficiently focussed, initial teacher training is minimal and in-service staff development generally absent and evaluation of college peifonnance in the disability field generally non-existent (including an absence of data on fundamental factors, such as the number of students with disabilities). Basically disability is an ad hoc, poorly resourced, low priority issue, in

which performance is unable to match the rhetoric of the TAFE policy documents. If these major structural difficulties are to be resolved, then the recommendations of the TPD report need to be implemented. The intent of the recommendations is to ensure a clear, predictable and ongoing basis for the development of programs and to overcome the existing ad hoc approach caused mainly by funding inadequacies. Although the TPD report is not a document which details discriminatory practices, it does set an agenda for the better provision of continuing education for people with disabilities. Assistance for disabled students in post-secondary education: perception, needs and responses (The ADSPSE report) The ADSPSE report was intended to assist in the assessment of the adequacy of support for tertiary students with disabilities and to develop policies that would more effectively ensure that disabled young people are able to take full advantage of educational opportunities. The ADSPSE report covers issues such as the nature of disability, available sources of fmancial assistance for students, approaches and attitudes adopted by institutions and the support provided by government and non-government organisations. The ADSPSE report raises the question of the responsibility which both institutions and government agencies may need to accept and discusses the need for the development of appropriate policies. The ADSPSE report points out that disabled people have traditionally tended to be confronted with restrictions in terms of the options for post-secondary education available to them. Although it is generally accepted that people with disabling conditions have an equal right to post-secondary education, these rights are rarely pursued. There are very few universities or colleges of advanced education which publicise, specifically, the possibilities of educational participation to disabled persons. The report, as a result, emphasises the need for more affirmative action. In spite of the diversity that exists among students with disabilities there are some common characteristics:

many students with disabilities proceed through courses of study at a slower rate because handicapping effects place constraints upon the semester load that can be carried; in order to reduce the handicapping effects of disability, students commonly incur types and levels of expenditure not faced by students without disabilities; many students with disabilities delay entry into post secondary education for a variety of reasons; many students experience a shock in the transfer from school to post-school education because of the significant differences in resource and support provided (generally, schools are perceived as being more appropriately resourced than the post-secondary sector); for some students with disabilities the purposes of post-secondary education differ considerably from those of students without disabilities, for example, post-secondary

education is often significant as a social site where people with severe disabilities may engage in a form of rewarding activity, hence their participation may not be temporary as is the case for students without disabilities. The ADSPSE report identifies three of the different types of inaccessibility for disabled students to post-secondary education. These are physical inaccessability, inaccessability due to the teaching process, and fmancial inaccessability.
1. Physical inaccessibility

This includes problems of physical access to buildings, the overall layout of the relevant institution/s, ramps, sign posting, special toilets, special parking or set-down arrangements. It also relates to access maps which often fail to consider the time required to travel routes between buildings or the effect of wet weather on both the route and the traveller: for example, an uncovered route may render it inaccessible in wet weather as well as providing the person with disabilities no other option but to get thoroughly wet. The lack of covered waiting bays at taxi ranks also has the same effect. Inaccessibility may also occur if lifts become inoperative preventing students from attending classes or other necessary areas within the institution.
2. Inaccessibility due to the teaching process

The main two contributing factors are the lack of equipment and service aids and the negative attitudes sometimes expressed by teaching staff. Disabled students often have a need for more specialised equipment, materials and services.These may include visual aids, high powered tape recorders, word processors, readers, scribes or personal care assistants to help the student with mobility, eating and going to the toilet. Thoughtlessness on the part of staff members also contributes to this form of inaccessibility. Insensitive staff members may be unwilling to make recordings of lectures or to provide copies of lecture notes or overhead transparencies. Staff members often fail to recognise the additional time that disabled students need to travel between buildings, to rest between activities and to complete their work. Staff may even show undisguised hostility towards disabled students because they see inappropriate vocational outcomes.
3. Financial inaccessibility

Many disabled students incur extra costs in order to undertake some form of post- secondary education. In addition to the extra equipment that they may require, most disabled students rely heavily upon a photocopying service. Also, many such students are compelled to use a taxi service as the main mode of transport to and from the institution. The lack of special funds or programs for disabled students in post secondary institutions often renders such opportunities inaccessible. In trying to reduce some of the recognised inaccessibilities, the ADSPSE report found that the universities and colleges of advanced education addressed these issues in three stages along a continuum of institutional adaptation. These are:

a concern for modifications of buildings and facilities to allow some access by disabled people; a subsequent shift in emphasis on the provision of specialised equipment and educational aids for disabled students (this stage also includes some potential for the modification of

assessment procedures);

an emphasis on greater consultation with and participation of students with disabilities on committees where the issue of access for people with disabilities is central, for example, course modification to make the 'interaction of disability and educational environment less handicapping'.

It is clear from the ADPSE report that individuals with disabilities are assisted or impeded in their studies by the nature and degree of the relevant institution's response. As stated earlier, very few post-secondary institutions publicly encourage people with disabilities to participate in their programs. Many institutions do, however, permit disabled students to enrol on an integrated basis. The ADSPSE report's survey of students with disabilities indicated that such students expect institutions to demonstrate their responsibility and commitment in this area by removing the additional and significant handicapping obstacles which can, and often do, operate to reduce such students' chances of success on the basis of merit. That is toy, if such a student is accepted for enrolment in a given course, he/she should be afforded a reasonable opportunity to:

attend lectures, tutorials, other classes and required activities; gain access to the library and its services; and to gain access to any other required facilities and support services.

Obviously, the educational institution should be required to make a more meaningful response than the mere acceptance of students with disabilities. If people with disabilities are to gain access to the teaching process of, and physical and fmancial access to, universities and colleges of advanced education, then such tertiary institutions need to specify the nature and extent of the responsibility they are undertaking at the time they enrol a student with a disability.

Major Issues and Recommendations

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, it is essential that the Federal and State Governments respond appropriately to the discriminatory practices highlighted in this chapter. As was stated at the beginning of this chapter, New Directions recommended that the federal Minister for Education (now the Minister for Employment, Education and Training) should consider:

ensuring the right to free and appropriate public education for all school aged children, including those with disabilities; ensuring that children with disabilities are effectively integrated into mainstream schools and classes;

providing funding to enable the transfer to State Education Departments of the current non-government sector education programs for children with disabilities funded through the Schools Commission; and providing funding to enable children with disabilities to gain access to mainstream schools by upgrading physical accessibility and providing notetakers, support teachers, therapists and other staff, and by developing alternative methods of teaching and assessment.

Since New Directions some of these recommendations have been achieved in part, and some have not been addressed. it is believed that:

because of exemption clauses in the legislation which governs the provision of education in most States and Territories, children with disabilities do not have a right to an education, and in many instances have been excluded from all educational services; the policies of State and Territory education authorities are at odds with the practices of those authorities, particularly in relation to commitments to integration; a basic premise of education is that all members of a community should grow up together, learning to accept each other as persons with rights, and to value each other as participants in the whole society.

Accordingly, it is recommended that:

education, as the first option, be provided in generic school settings; existing practices in special schools be monitored by the 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 the appropriate support; appropriate anti-discrimination legislation be enacted by Governments in those jurisdictions without such specific legislation.

Chapter 4: Accommodation

Issues Addressed Rights Denial of Rights and Discrimination Commonwealth Involvement Introduction Disability Services Act Home and Community Care (HACC) program Commonwealth/State Housing Agreement State Government Involvement Major Issues and Recommendations

Issues Addressed
This chapter concentrates on four main areas of accommodation. Project workers made contact with a range of people, including those with disabilities who live in the family home, in homes of their own, or in boarding houses, as well as people who are accommodated in either hospitals, nursing homes or staffed and non-staffed facilities such as group homes or hostels. The main questions to emerge include

what is the Commonwealth's involvement in the provision of accommodation for people with disabilities? what programs exist, what are the policies of these programs, and do these programs complement or contradict each other?

. what is the impact of deinstitutionalisation? . what discriminatory practices occur when people with disabilities attempt to purchase their own homes, or locate accommodation on the private rental market? For people with disabilities, access to suitable accommodation is generally limited. Many people are still inappropriately accommodated in institutions, often because of the lack of other options. Access to private sector housing is often limited by cost. Access to public housing is becoming more difficult, and taking longer to obtain, for all applicants. In some instances, the policies of the relevant State or Territory Housing Authority, or the attitudes of landlords or agents, directly discriminate against people with disabilities. It is against this backdrop (of limitations and unsuitability) that project workers have attempted to identify ways in which the right to appropriate accommodation could be better protected.

Rights

Principle 4 of the UN Declaration on the Rights of Mentally Retarded Persons states that: Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life. Principle 9 of the UN Declaration on the Rights of Disabled Persons states that: Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive therefrom. If the stay ofa person in a specialised establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age. The key elements of these two Principles are that people with disabilities should be able to:

participate in community life; and live in the least restrictive environment possible.

The concentration in both these Principles on living with families is particularly relevant to children with disabilities. An arguable corollary is that adults with disabilities have the right to live in the community, with appropriate supports ensured. Principle 2 of the Principles and Objectives attached to the Disability Services Act 1986, states that: People with disabilities, whateverthe origin, nature, type and degree of disability, have the same fundamental rights as all members of Australian society. Those interviewees who had lived in staffed facilities, including institutions and group homes, endorsed the Statement of Principles put forward in the Intellectual Disability Rights Service's book Rights in Residence. The Principles follow.

Self-Determination: Each resident has the right to make his or her own decisions and choices in all aspects of his or her life. Freedom of Movement: Each resident has the right to move freely both inside and outside the residence. Freedom from Abuse: Each resident has the right to be free from physical, sexual, emotional and verbal abuse. Money Management: Each resident has the right to have full access to and control over his or her own money. Personal Possessions: Each resident has the right to have and use personal possessions.

Privacy and Confidentiality: Each resident has the right to personal privacy, privacy in communications and confidentiality of personal records and information. Relationships and Sexuality: Each resident has the right to a range of relationships of his or her choosing. This extends to the right to express his or her sexuality and to be counselled about the practical, emotional and social aspects of sexual behaviour. Residency Agreements: Each resident (and his or her advocate, if applicable) has the right to be clearly and fully informed of the conditions of residence and the services to be provided. These conditions should be fair and capable of being enforced. Household Decisions: Each resident has the right to participate meaningfully in the decision-making of the household. Complaints: Each resident has the right to express personally or through an advocate his or her complaints without fear or reprisal, and to have them investigated and resolved quickly and fairly.

Denial of Rights and Discrimination

Commonwealth Involvement: Introduction New Directions states that the major problems associated with the provision of accommodation and related support services for people with disabilities include:

the lack of community based accommodation, especially for people with intellectual disabilities; the unduly fragmented organisational arrangements for the Federal and State Governments' accommodation and related support service programs; the significant variation in funding provisions across Commonwealth programs providing accommodation assistance to people with disabilities. (This has two adverse effects: it creates incentives for the establishment and operation of institutionalised rather than community based accommodation and it results in inequitable access to Commonwealth financial resources provided for accommodation programs); the poorly developed capacity for strategic service planning; the need for improved accountability for and equity of access to accommodation programs; the extremely limited involvement by disabled people in the design, management and review of accommodation facilities and related support programs; and the lack of measures such as bond and establishment loans to assist people moving from institutions into the community.

Since New Directions was published, some of these problems have been addressed. Other problems remain, and of particular concern is the lack of community based accommodation. During 1988 the Australian Housing Research Council published a discussion paper entitled

Housing Impact of Deinstitutionalisation Policies. The paper defined deinstitutionalisation to refer to current moves away from providing accommodation and services for people with disabilities in large, segregated facilities (hospitals, training centres, nursing homes) in favour of community based supported living arrangements in ordinary houses in ordinary neighbourhoods. It focuses on the impact of such deinstitutionalisation policies on the demand for housing, particularly public housing, by people with disabilities. Despite its title, it is not concerned solely with accommodation needs of people currently in institutions, but extends to identifying appropriate housing options for people already in the community (many of whom have never been in institutions). It is also concerned with the links between housing supply and provision of personal and domiciliary support services. The study covers the full range of disability groups people with intellectual, sensory, physical or psychiatric disabilities (or any combination of these). The Commonwealth is involved in the provision of accommodation for people with disabilities in five different areas:

programs funded through the Disability Services Program of the Federal Department of Community Services and Health, and the Disability Services Act; the Commonwealth State Housing Agreement, and the effect this Agreement has on the policies of State Housing Authorities; programs funded through the Home and Community Care Program of the federal Department of Community Services and Health; the provision of capital grants under the Aged or Disabled Persons Homes Act 1954 to local government or non-profit organisations for provision of self-contained units, hostel or nursing home accommodation for aged or disabled people; sixty-nine Special Purpose Nursing Homes, which have been transferred from the Aged Persons Residential Program to the Disability Services Program. Twelve hostels which cater predominantly for younger people with disabilities have also been identified. In addition, there are approximately 1800 younger people with disabilities in nursing homes for the aged, and 450 people in subsidised hostels for the aged.

This section concentrates on the first three areas of Commonwealth involvement.

Disability Services Act

Two of the Principles and Objectives of the Disability Services Act have been referred to in the Introduction. The Disability Services Act nominates two accommodation service types which the Commonwealth is prepared to fund:

Accommodation Support Services: defined as 'services to assist persons with disabilities to develop and maintain suitable residential arrangements in the community'; Respite Care Services: defined as 'services for relief or assistance, for a limited period of time and whether on a planned or unplanned basis to:

the families of, and other persons who provide care for or assistance to, persons with disabilities living in the community; or ... persons with disabilities living in the community'.

The range of accommodation types which can receive funding under these two categories is large, and enables the Commonwealth to meet some of the recommendations of New Directions. Information collected, however, from people with disabilities, parents and advocates, suggests that many organisations which provide accommodation services do not comply with the Principles and Objectives of the Disability Services Act. It will be important for the Disability Services Program to ensure that the transition date of 1992 is adhered to by rganisations which provide accommodation services. The Attendant Care Scheme is also funded through the Disability Services Program. Project workers collected information which suggested that some people with physical disabilities found the eligibility criteria too restrictive. There was particular concern regarding the necessity to have been permanently resident in a nursing home, or a long stay patient in a hospital, before being eligible for attendant care services. Some interviewees felt as well that the maximum number of hours per week (28) of personal care precluded some people from utilising the Scheme. As mentioned above, project workers interviewed a range of people from the States and Territories. Some of the interviewees' comments, which relate specifically to services funded under the Disability Services Act, are recorded below.
Australian Capital Territory

A number of services in the ACT provide group accommodation for people with disabilities. The danger with any such staffed facilities is that they become in fact 'mini-institutions', as one interviewee commented. He further commented: Staffing restrictions, exploitation - they remain the same. It just happens in the community. The challenge of staffed group accommodation then is to promote integration by accompanying a physical move to the community with individualised programs, freedom of sexual expression etc. One interviewee commented: The houses are poorly furnished. Residents are swapped from house to house. And they work for the same organisation that provides accommodation. Despite policy commitments to normalisation and the principle of the least restrictive alternative, major service providers offer group accommodation which is restrictive and not integrated.
South Australia

Comments which emerged from the public forums include:

properly supported accommodation is equally as expensive as institutions, thus services are constrained when government expenditure is cut back; people with high support needs have no housing choices because of costs: therefore

families who resist institutionalisation of their family member bear the full responsibility, which often creates great family distress;

some accommodation for people with intellectual disabilities in the community is still isolated from the rest of the community, both by the distance between the houses and by staff attitudes that create dependency; many people in the community still hold fears and uncertainties about people with very visible disabilities. (Attitudes are often inflamed because of the lack of resources to support such people in the community and to re-educate the wider community). The 'harmless but different' behaviour, less conspicuous in the community at large, could be changed or modified if adequate training existed.

Some suggestions for change which emerged from the forums include:

service organisations should enter into residential contracts with tenants, similar to those now required of retirement villages and those being developed for other services providing personal care services for elderly people (for example, see the Commonwealth Standards for Nursing Home Care); such contracts should state a tenant's rights to: a minimum standard of care; minimum standards of physical space, both private and communal; accountability for their care; accountability of residents to each other; security of tenure; move out, with adequate supports; appeal mechanisms that are consumer friendly and guaranteed access to an advocate or legal friend during proceedings.

Home and Community Care HACC) Program

The federal Home and Community Care Act 1985 attempts to provide realistic levels of support to help aged and non-aged people with disabilities to remain living in their own homes, and provides for cost-shared programs to do this, recognising the traditional role of both Commonwealth and State/Territory Governments. Project workers identified some key concerns with the HACC Program. These included: . although the target group includes younger people with disabilities, this group appears to be missing out in most States because of a bias towards home and community care services for the aged;

existing services are poorly coordinated;

younger people with disabilities who are Aboriginal or from non-English speaking background are particularly marginalised; the guidelines for the Attendant Care Scheme state that rejected applicants 'if appropriate...should also be advised of the availability of HACC personal care services in their State/Territory'; however, there are very few HACC funded services providing attendant or personal care; the practice of funding service models directly does not allow any differentiation between an individual's capacity to manage his or her own affairs and appears to conflict with the Disability Services Act Principle that: ...every person with a disability has the same rights as other members of Australian society to realise his or her individual capacity for physical, social emotional and intellectual development.

Commonwealth/State Housing Agreement

The information in this section covers two main areas:

the report on the views of public tenants and community groups about the implementation of the 1984 Commonwealth-State Housing Agreement (the CSHA): Consumers Views on the CSHA, 1987; and, the material collected by project workers in each State/Territory, both from housing authorities and people with disabilities.

The CSHA is an agreement between the Commonwealth and the States and Territories. it is an agreement about housing policies, programs and funding arrangements. The current agreement was signed in 1984 and will run for ten years. One question posed by Consumer Views on the CSHA was:

what is the extent to which the State/Territory Housing Authorities (SHA) have succeeded in implementing the CSHA principle that relates to the access of people with disabilities to public housing?

The general answer to this question is stated as follows:

The mainstream public housing system has scarcely begun to adapt to the needs of people with disabilities (physical, intellectual or psychiatric). All States claim to modify dwellings for tenants with physical difficulties when requested to do so, but few States have actively modified their policies to facilitate access for people with other forms of disability. In order to maximise the flexibility of stock and hence minimise the costs of one-off modification, the SHA's should build in certain design features when constructing or renovating dwellings.

Given that most people with intellectual or psychiatric disabilities are on low incomes and hence eligible for public housing, the SHA's have a potentially large role as housing providers. Progress will depend on the rate at which the State health and welfare authorities implement programs of deinstitutionalisation and normalisation. In Victoria, where some progress has been made, the

failure in the recent past to tackle the question of housing has led to serious problems: large numbers of people have been discharged from state institutions into private sector boarding houses (Special Accommodation Houses) where neglect and abuse have been rife. The problem is now at least beginning to be addressed, and the Ministry of Housing has developed a number of programs to provide dwellings managed by community groups. However, there is too much emphasis on group living. Specific comments in the situation on each State or Territory are given below.
New South Wales

The Department of Housing policy is a general policy which supports increased access to public housing for people with disabilities. In practice this has resulted in some increase in access for those with physical disabilities. Advocacy groups for people with disabilities would like to see a specific allocation of public housing stock targeted to the disabled (5%). The Department's policy at present on the eligibility of people with disabilities to public housing sets out no conditions relating to ability to live independently, but there is a need to better coordinate support services. Generally, there is a lack of appropriate housing stock for people with disabilities, but the Department has been undertaking spot-purchasing of appropriate properties when an application by such person/s has reached the top of the list. The lack of long term housing is creating problems in short and medium term housing, as people stay much longer than necessary through lack of alternative housing. At present, very few community housing organisations house people with disabilities, but there is a need to better coordinate the housing that is available. A central register which is regularly updated would be a good way of making this information available.
Victoria

The question of access for people with disabilities (physical, intellectual or psychiatric) is now being taken seriously by the Ministry. In addition to the constraint imposed by the overall shortage of stock, other constraints include the lack of suitable dwellings (especially for singles) and the question of resourcing and management models. Access can be obtained either through the general waiting list or through special programs. When an applicant reaches the top of the waiting list, either a suitable dwelling is allocated or special modifications are made to the dwelling available. Community groups (e.g. the Housing and Disability Working Group) strongly support the principle of open access, which implies the continuation of allocations via the general waiting list rather than only through special programs. A recent policy paper from the Housing and Disability Working Group Open Access Housing Policy (1986) argued that most people with disabilities do not need a group to act as an auspice i.e. they can have a direct tenant - landlord relationship with the Ministry of Housing. People with disabilities have the right to access the type of housing stock they desire. This includes houses, fiats, units, rooming houses and granny flats. It should not be assumed that all people with disability need/want to live in a group household. However, the Ministry of Housing's Group Housing Program is currently the major avenue for

access to public housing. Dwellings are spot-purchased and leased to community groups to manage. The 1985-86 budget was $2 million and in 1986 some thirteen management groups were given allocations (out of forty-two groups that applied). The Group Housing Program should be considered in the context of the Victorian Government's policy on the deinstitutionalisation of services for people with disabilities. Hence the initiative lies with service providers who are prepared to act as management committees to both apply for dwellings and provide support services to the residents. The question of the optimum role (if any) for these management committees has not yet been resolved. According to the Housing and Disability Working Group one possibility is that committees simply have a tenant support role, with all the tenants having a direct lease with the Ministry of Housing. In such a case a number of issues would need clarification:

support versus intrusion; security of housing tenure versus transitional independence training programs; membership of the committee - extent of resident involvement; who actually provides the support: the committee itself or the community services which the committees would link tenants into?

At the moment, the local management committees lease their houses from the Ministry of Housing and are responsible for rent collection, tenant selection (and eviction) and tenant support. The rent formula is such that tenants on a statutory income pay 20% in rent, but the Ministry collects 15% less than the household's combined rent, allowing the management group to apply the difference towards vacancies. One rental housing cooperative has been set up to cater for people with disabilities; they live in separate (not shared) households. The cooperative has emphasised tenant participation but has found this to be a demanding task. The Ministry of Housing also spot-purchases houses to be used by the Community Residential Unit (CRU) program of the Office of Intellectual Disability Services (OIDS). A high level of staffmg is provided (not by the Ministry of Housing) and some of the people housed have had serious disabilities. Largely because of the staffing costs, there are now concerns that the Government will not proceed with the rate of expansion previously planned. Some 150 CRUs have now been set up. Recently, work has begun towards a policy on the better coordination of support services for disabled people living in public housing. The Ministry of Housing, OIDS, AMIDA and the Western Region Housing Council are currently investigating the possibilities. The Housing and Disability Working Group has set up a sub-committee, convened by AMIDA, and the North East Office of OIDS has appointed a Housing Liaison Worker. The aim is to ensure that a disabled person has access to relevant services, such as Home Help and other domiciliary services, or the specialist services provided by OIDS. According to one model, the Ministry of Housing would accept responsibility for coordinating the delivery of these services, perhaps through a regional liaison officer, or by convening periodic meetings of the relevant service providers.

Project workers also sought the responses of people with disabilities to public housing policies, and a number of these comments are noted below.
New South Wales

The report by David Tait commissioned by the Disability Council of New South Wales entitled A Little Bit of Support Here and There cited one man's experience of life on the waiting list: I've put my name on the waiting list of the Housing Commission and I've got nowhere. I've been on there for quite a while, because there's not enough Housing Commission places built yet, that's why. That's the sort of question. I had been on the special allocations housing list because I was bashed one year. And roughly about March they took me off that list because they don't think I am in a hurry for a Housing Commission...I felt sorry for those who wait and wait and wait and can't ever get a Housing Commission flat...like myself. 'Cos I'm on the pension it makes it damn bloody hard because you've got electricity bill, phone bill, you name it. And it stinks.
South Australia

The first thing to emerge from the public forums was the general acknowledgement that the South Australian Housing Trust (SAHT) had a very good record as far as flexibility and landlord/tenant relations went. The following changes were suggested, however, to further improve the SAHT's services:

that the Commonwealth/State Housing Agreement take note of the Costs of Disability paper produced by the Federal Office of Disability, and use it to determine an allowance for such costs when assessing rent; that the SAHT develop housing suitable for multiple tenancies, especially for people with disabilities who wish to live in either small groups of 2-3 or with 2-3 other tenants without disabilities who can provide some support for independence; . that the administrators of Home and Community Care Services and disability accommodation funding programs address the need for reliable and predictable independent living services to back up people with disabilities living in SAHT accommodation.

Queensland

In practice, it has been difficult for people with disabilities to gain public housing because:

the Housing Commission focuses on Home Purchase Plans, as opposed to public rental housing, and this often precludes people with disabilities; in many regional areas, the Housing Commission has not provided housing for community groups; and the Housing Commission focuses on family units in its provision of public rental housing, often to the disadvantage of single people with disabilities.

State Government Involvement

As well as the State/Territory involvement in the provision of public housing, a range of State

Departments are involved in the direct provision of residential services for people with disabilities. In most States, Health Departments still provide institutional care, with accompanying moves to community accommodation to a greater or lesser extent. New South Wales The historical perspective on accommodation for people with a disability has been to place them in an institutional setting hidden away from the rest of the community and isolated from friends and family. The role and value of institutions remain an issue at the centre of much protracted and bitter debate in New South Wales. The Richmond Program was launched under the previous State administration to transfer people with disabilities who did not require constant medical attention, out of institutions (generally Schedule V hospitals) and into staffed homes in the community. The program was given wide support by members of the disability movement and formally endorsed by such prominent organisations as Disabled Peoples International and the NSW Council for Intellectual Disability. They felt it to be in line with a more enlightened philosophy of accommodating people with disabilities in an atmosphere as close to normal as was feasibly possible. The present State Government has announced the abandonment of the Richmond Program and the retention of large psychiatric hospitals that were earmarked for closure under the Richmond Program. This policy has been welcomed by some sectors of the community and roundly condemned by others. At the very least it is out of step with the now widely accepted policy of 'normalisation' for people with disabilities, and accommodation in the 'least restrictive environment'. Institutional living could never be considered 'normal'. People who have spent a lifetime in a large hospital may not know what a kitchen looks like, let alone what it is used for, or what uncooked food looks like; they may never have had a place to be alone, always having had to share a room with several other people. In some instances private possessions might have been disallowed, extending even to there having been a communal stock of clothing. Even more worrying is the fact that the isolation from the general community may leave such people vulnerable to exploitation and abuse in an environment from which there will be no escape. One young man was placed for respite care in an institution whilst his parents took a vacation. He returned home without fingernails. An ombudsman investigation was unable to accept a staff explanation that the boy's fingernails were 'flicked' off by another resident. The present government policy of institutional care could be interpreted as a denial of the rights of people with disabilities to live in the community like everyone else. It could be seen as a discriminatory segregation of a particular group of people. An example is the Government's closure of several community homes due for occupation by people with disabilities on the New South Wales Central Coast. This is despite the fact that individuals had already been advised of their relocation from a large and archaic institutional facility, and that all were looking forward to the move. The justification offered was that the local community did not want people with disabilities living amongst them (in fact, a strenuous misinformation campaign was carried out concerning the effect of the cottages on real estate values and the alleged sexual perversion of the proposed

residents). A policy of capitulation to the worst kind of prejudice is a deplorable policy for a government to endorse. Residential facilities in New South Wales are run privately (usually by charitable organisations) or by the Department of Health. The Department of Health homes in particular have been developed in accordance with strong rights oriented policies which stress the right of residents to self determination. The extent of the application of these policies, however, varies in practice, with some services being more rights conscious than others. There may be some practical problems which need to be corrected - although in most cases, services are well aware of the difficulties and are striving to correct them. One situation which disability workers frequently report is a lack of privacy for residents and the effect this has on maintaining intimate relationships. Most services have policies which seek to support the development of personal relationships, but some will not be able to offer a private place for couples to go. Some houses have shared bedrooms and few have bedrooms that lock. This obviously makes it difficult to develop and maintain a relationship. Another concern expressed by some disability workers and people with disabilities is the lack of security for residents. Residents in group homes are licensees only, and do not have the protection of a tenancy. This leaves them vulnerable to eviction and fee increases without notice. An example of this is the recent increase in rent and lodging fees announced by the State Government. Fee increases which occur without notice (and which can even be back-dated) could be avoided by tenancy status being accorded residents. Victoria In 1984 the Victorian Minister for Health (then responsible for the majority of govermnent services for people with intellectual disabilities) stated: The Government has for some time considered that a community-based service system is the best method of providing services for intellectually disabled people. All people, whether or not they are intellectually disabled have a right to enjoy a quality of life which is as close as possible to that of any other citizen. Therefore, the Government's aim is to develop services for disabled people that are designed to encourage each individual to maximise his or her potential. In 1986 the Intellectually Disabled Person's Services Act was introduced. This legislation promotes the idea that people with intellectual disabilities should have the same rights as other members of the community particularly in relation to accommodation. For many years the Victorian Government has been working towards the provision of community-based accommodation for people with disabilities. There is, however, a disturbing gap between government intent and service practice. There are currently 2,800 people presently residing in large Government institutions. An unknown but not insignificant number of people live in nursing homes, hostels and special accommodation houses. In May 1988 a report was released following a visit by 'community visitors' to Caloola Training Centre at Sunbury which houses 549 residents. The report of the visit states:

Most Caloola residents, when asked said they wanted to get out of Caloola. This matter is urgent. Residents in Caloola cannot simply be placed on hold until the government gets around to them. In many cases their conditions are actively deteriorating. The Intellectual Disability Services Act says (s. 18) that a person may be admitted to an institution only if, inter alia, 'admission....provides the best possible choice of services for enhancing the person's independence and self-sufficiency and is least likely to produce regression, loss of skills, or other harm to that person'. In Caloola this is a cruel joke. People who could communicate only by using communication boards find that the staff have not got enough time to stand around and watch them spell; after a few years without any opportunity to practice these skills, they lose them (Michael used a communication board at Special School but staff at his unit refused to use it because boards could get lost or stolen). People who were able to keep themselves clean lose their motivation (when he went to Caloola Bruce could shower and wash himself; now the staff hose him down). People who come in being able to feed themselves normally are never given a knife again. People who could walk become confined to wheelchairs (Shirley is losing her ability to walk because all she ever does is sit). People who could use their hands only with difficulty stiffen into permanent deformity (George had a twisted foot which made it difficult to walk; it could have been corrected with calipers, or he could have had a walking frame, but the staff thought he was too old for it to be worthwhile). People who are said to be without speech in the wards sing at school. Many can read, but there is no reading matter available. People lose their social skills; they masturbate, eat out of rubbish bins, or piss in their pants because nobody expects anything better of them. These things need not happen. They can be changed. They must be changed. We have been horrified by the conditions we have found at Caloola. As community visitors we are [concerned that] Caloola does not meet community standards in any particular, and the community should not tolerate Australian citizens being held under these conditions any longer. Australian Capital Territory The Intellectual Disability Services section of the ACT Community and Health Services has a philosophy of care which states: all the services, both clinical and residential, are based on the central ideology of 'normalisation'. This philosophy emphasises the development of skills and activities that enhance the image and competency of the person with disabilities and has implications for:

planned living environments; patterns and routines of daily life; and

the rights of people with disabilities.

The Intellectual Disability Services section administers:

Bruce Hostel (40 places in 4 villas); Melba Hostel (10 places for children/adolescents); John Knight Hostel (40 places in 4 houses); Ward 1OA at Woden Valley Hospital (12 places for people with profound disabilities of all ages); Group Housing (3 houses with 6 residents each).

Interviews with residents and advocates indicate a number of deficiencies in the hostels. These include:

some people with disabilities have been inappropriately placed in such accommodation, often because other options do not exist; allegations of physical and sexual abuse were raised; freedom to make choices in relation to diet, clothing, activities, possessions is often restricted; rights related to privacy, sexual expression, freedom of movement, and money management are sometimes breached.

Ward 1OA at Woden Valley Hospital provides accommodation for 12 people with profound disabilities. For a number of years alternative accommodation has been available for these people in the form of a hostel in a suburb of Canberra. Although the Hospital is arguably the most restrictive environment possible for the residents, staffing disputes between the ACT Community and Health Services and the Royal Nurses Federation have precluded any move to the new hostel. For a government agency which espouses 'normalisation' as a guiding principle, the continued accommodation of people in Ward 1OA is untenable. (Note: shortly after the preparation of the ACT report people resident in Ward 1OA were finally relocated to the Chapman Hostel.) Queensland The Intellectual Handicap Services (IRS) Section of the Department of Family Services and Housing Welfare is the relevant State authority. Currently, IHS accepts the principle of normalisation, has adopted the concept of the least restrictive alternative and is moving towards community integration and independent living strategies. IHS currently operates three centres:

Basis Stafford at Wacol;

Challinor Centre at Ipswich; and Sandgate Centre at Sandgate.

These centres accommodate approximately 570 people with intellectual disabilities. These centres, in theory and in practice, are antithetical to the stated policies of the IHS. Many people, too, are moved from all other regions in the State to these centres, because of the lack of appropriate accommodation in regional and isolated centres. Northern Territory The NT Department of Health and Community Services does not appear to be involved in the direct provision of accommodation services for people with disabilities. This is a major cause of concern and is the subject of considerable public comment and controversy. Western Australia The purpose of the Home Services Program of the Authority for Intellectually Handicapped Persons is to ensure 'that all people with an intellectual handicap have access to a positive home environment which best meets their individual needs'. The Operational Plan of the Program states that the key features of a positive home environment include:

a safe haven and shelter; opportunities for personal growth and development; a strong social network of mutual dependency and personal involvement; a balance of rights and responsibilities to protect the interests of individuals and the household.

Other service principles specific to this program are:

self determination: peoples' right to pursue their own preferences and aspirations; dignity and value: services should enhance the dignity and social value of people; tailored services: services should meet the unique and specific needs of individuals.

The current program costs $33.lm per annum to operate of which $30m is spent on 800 residents in full-time care - n average of $37,000 per person per year, while $3.lm is spent to support 3,300 people in the community - an average of $1,000 per person per year. The key problem is that there is not enough to go around, in particular:

the community-based support services are inadequate, resulting in extensive demand for residential care; most of the residential facilities are below acceptable standards but cannot be closed due to the extensive demand for residential care;

policies and practices inadvertently encourage residential care as a primary solution to community-based problems.

Community-based support services require the following common elements:

home support to help families cope with the additional burdens of the disabled member; home training to develop independent living skills; specialist intervention to control inappropriate and anti-social behaviour; supported community living to assist independent living in the community ( e.g. 'Plus One' to provide a substitute family home for children and juveniles); employment and leisure options to provide constructive activities during the day.

A Facility Plan exists to replace 16 sub-standard hostels accommodating 470 residents with 74 group homes and duplexes in the community over an 11 year period. Total capital costs of $18m are involved, including the necessary employment options, of which $9.8m can be recouped by the sale of facilities as they close. Operating costs are estimated to increase by $1.lm including $9.6m for 'Plus One' foster care of children. Implementation would be overseen by a steering committee with consumer, trade union and management representation. South Australia Comments raised at the forums include:

there are still large numbers of people with intellectual disabilities living in institutions in situations that deny privacy, choice and freedom of association; the service industry often assumes an attitude of 'ownership' towards its consumers; this ownership extends to choices of accommodation and to handling of consumers' money both agency and government accounting requirements perpetuate the practice of the service taking all the consumer's money directly and possibly paying out a bit of 'pocket money' - there is no individual accounting to consumers as to where their money has gone or what it has been spent on; residents of institutions are often at risk of attack from other residents because of the clustering of a lot of people with behavioural difficulties, because of the design of the facilities and because of the pressures and culture of institutional life itself.

Quite a few people with long standing psychiatric disabilities or intellectual disabilities are caught in the vicious circle of discharge and admission. They feel they are constantly getting started. On discharge, they have no goods for setting up house in the community: no kitchen ware, no bedding, few clothes, no furniture, radio, and television set. Setting up house takes a lot of energy and running around - even if it is to Salvation Army stores or garage sales (usually by bus, because they have neither a car nor friends with cars). Lack of support and easy access to crisis advice is often a contributing factor to breaking down in the community. Short-term stay and deinstitutionalisation policies as well as the persons own

desire to get on with life in the community are reasons for early departures from institutions. There is nowhere to store goods cheaply and safely if a person is hospitalised. If this occurs quickly as a result of a crisis, often the person's goods have been disposed of by other residents of the boarding house or landlords.

Major Issues and Recommendations

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 essential that Federal and State Governments respond to discriminatory practices highlighted in this chapter. Accordingly, it is recommended that:

the Disability Services Program of the Federal Department of Community Services and Health ensure 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; appropriate anti-discrimination legislation be enacted by Government in those jurisdictions without such specific legislation; discrimination in the private rental market be expressly prohibited, where such laws do not already exist.

Chapter 5: Criminal Justice System Issues Addressed Rights Denial Of Rights And Discrimination Introduction Criminal Activity: as Suspect or Accused Police procedures The right to silence and the caution The interview Giving evidence Sentencing Victims of Criminal Activity: Case Studies Consultations in South Australia Major Issues and Recommendations

Issues Addressed

Because of the variability of the information collected by project workers in each State/Territory, this chapter on the criminal justice system takes the form of a general discussion of the situation in , with details of specific State or Territory practices provided where possible. Considerable use has been made of New South Wales examples, due to the detailed contribution received from that State.

The Proceedings of the Seminar on Intellectually Disabled Offenders ('the Proceedings': held between 22-24 April 1987 at the Australian Institute of Criminology) presents a number of viewpoints on how the criminal justice system needs to learn and develop appropriate ways of dealing with people with intellectual disabilities in the event of such people breaking the law, witnessing criminal events or being victims of crime.

In his address at the Seminar entitled 'A Normalised Approach to Supporting Intellectually Disabled Offenders', Mr Paul Gannon presented the following as a

lineal description of the criminal justice system: Pre-arrest questioning* decision to arrest/charge Arrest bail legal advice* court appearance* jurisdiction

Court hearing plea of guilty* summary trial * committal hearing* jury trial*

Sentencing options* discharge without conviction bond probation community service fine fine/option prison/probation prison

(* procedures in which persons with an intellectual disability are most seriously disadvantaged).

This chapter will consider a number of the steps in the above process, drawing on the information collected by project workers and on the Proceedings.

Many of the issues identified in this chapter do not appear to constitute a problem for people with a physical disability. This is perhaps attributable to two factors. Firstly, people with a physical disability seem to be under-represented in the criminal justice system rather than over-represented as is the case for people with intellectual disabilities. People with physical disabilities seem to be less likely to offend, and less likely to receive custodial sentences. It has not been possible to find any data on this.

It may be that the physical disability itself is prohibitive of criminal activity. The lack of data could also of course be indicative of a hidden problem. The second factor is simply that of understanding. Many of the issues arise primarily because of the low level of understanding of people with an intellectual disability. Where the comprehension of a person with a physical disability is unaffected, he or she may not face such difficulties. For these reasons, and the simple lack of information on the subject, this chapter relates almost entirely to people with intellectual disabilities.

Mr Ben Bodna, the Public Advocate for Victoria, pointed out in his address at the Seminar, entitled People with Intellectual Disability and the Criminal Justice System', that it is clear that people with disabilities were in some fundamental sense a 'problem' to the criminal justice system, whether in their contact with police, courts, welfare agencies or within prisons.

Mr Bodna remarked further that:

Police felt that they were unable to access resources to help them resolve crisis situations involving people with intellectual disability, magistrates were disturbed at having no options available to them other than prison sentences for convicted individuals with intellectual disability where a community based order was not appropriate, and prison officials and welfare workers were disturbed by the lack of provision within the prison system for the person with an intellectual disability.

Rights

Principle 6 of the UN Declaration on the Rights of Mentally Retarded Persons states that:

The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for an offence, he shall have a right to due process of law with frill recognition being given to his degree of mental responsibility.

Principle 11 of the UN Declaration on the Rights of Disabled Persons states that:

Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.

The key elements of these two Principles are that people with disabilities have the right to: due process of law; and recognition of their individual capacities and limitations.

Denial Of Rights And Discrimination

Introduction

A person with an intellectual disability may become involved with the criminal justice system as a victim of crime, as a person suspected or accused of a crime, or as a witness.

Criminal Activity: as Suspect or Accused

People with a disability accused of committing crimes are particularly vulnerable because their special needs are often not met and because the legal system tends to discriminate against the less articulate, just as it discriminates against the less wealthy.

Police procedures

Many people with an intellectual disability appear to suffer serious breaches of their rights in this initial stage of contact with the criminal justice system. Mr Mark lerace, in his book Intellectual Disability - A Manual for Criminal Lawyers, remarks that:

The problems associated with police interrogation of suspects who have an intellectual disability are so considerable that a lawyer should not lightly advise the client to participate.

The problems referred to are numerous and people with an intellectual disability may be disadvantaged by several factors: they may be more prone to suggestibility, and thus leading questions by interviewing officers may be a distinct problem; many may be eager to please a person perceived to be an authority figure thus giving the answers he or she believes are the desired ones rather than the correct ones; people with an intellectual disability may be more likely to respond to questions in a manner they believe is expected of them; many may be prone to 'cued' or 'initiative behaviour'; there may be poor understanding of questions asked, and the implications of the answers given; many people with intellectual disabilities try to hide their disability and may, for example, answer a question to which they do not know the answer, so as not to appear 'dumb or stupid'.

At present, there is no legally enforceable obligation on police officers to ensure that an accused receives fair treatment during interrogation. This is a major problem and deserves immediate attention.

The right to silence and the caution

All persons have a common law right to silence during questioning by police in relation to any offence. (For a recent restatement of this principle see R vBeljajeve (1984), 12 A Crim. R 430). Suspects are usually informed of this right

by means of a caution given to them by police prior to interrogation. The wording varies slightly from time to time, but is generally as follows:

Before you say anything further about this matter, I must warn you that you are not obliged to say anything unless you wish, as anything you do say will be recorded and may later be used in evidence against you. Do you understand that?

Police are required to give this caution to an accused but are under no obligation to take special measures to ensure that it is properly understood. For a person with an intellectual disability, the caution may contain words (such as 'obliged') or concepts ('this matter', 'used in evidence', etc) which he or she does not understand. Similarly a person with a hearing impairment may fail to understand the police (for example, where they speak too quickly to enable the suspect to lip read). The effect of the caution is thereby lost and the accused may not realise that he or she is lawfully entitled to say nothing. This right of silence is doubly crucial to an accused with an intellectual disability, since he or she may also fail to realise the possible ramifications of participating in such a procedure. Generally, when an accused participates in the questioning process after being cautioned, it is taken that he or she has voluntarily surrendered the right to silence.

The obligation on police officers to ensure that an accused understands the proceedings and participates only through informed choice, must be more than a merely moral one. It is patently obvious that the current procedure is insufficient to protect the rights of an accused who has an intellectual disability. There is some judicial weight to the claim that for a record of interview to be admissible, an accused must understand the right to silence and be capable of exercising choice: R v Buchanan (1966) VR 9. There is also authority for the proposition that evidence of an interview is not admissible where an accused has not understood the administered caution: R vLangdren (New South Wales Supreme Court, per Matthews J, unreported 15.2.88). It is submitted that this must go further than a reliance on police goodwill and the judicial discretion to exclude. Urgent amendments to the law of evidence are required to provide that where an accused lacks the capacity to understand the caution administered to him or her and/or where an accused cannot effectively exercise the right to surrender his or her right to silence, any record of interview will be inadmissible.

A similar problem is evident with the standard questions asked by police of the accused at the end of the interview. There is a common law requirement that the record of interview be adopted by the accused to be admissible as evidence: Driscoll v The Queen (1977) 137 CLR 517. This requires the police to establish that the accused has read the statement as recorded and adopted it as his or her words. The questions are usually as follows:

Do you agree that you have read this record of interview/had this record of interview read to you? Do you agree that it represents a faithful record of the interview between yourself and (the interviewing officers)? Will you now sign that record of inteiview?

Again, the language used, and concepts involved, are such that an offender with intellectual disability may not understand them, and be disadvantaged accordingly. Hence, such an accused can be easily prevailed upon to sign a statement even whilst not understanding its contents. An accused with an intellectual disability may not have the adequate literacy skills to be able to read and understand the typed statement at a sufficient level to enable him or her to adopt or refute it. In addition, poor short term memory and listening skills may preclude such an accused from adequately comprehending and adopting or refuting a statement read aloud. The accused with an intellectual disability is substantially disadvantaged by the fact that police are not required to take any special measures to ensure that he or she understands what is being asked, and the significance of signing the record of interview.

The interview

There is no legislation relating to the interrogation of an accused with a disability in New South Wales. The New South Wales Police Commissioner has issued instructions to his officers regarding the conduct of interviews which can be taken to apply to people with an intellectual disability. In particular, some of the provisions of Instruction 31.2 are as follows:

6. The following instructions are designed as a guide to members of the Force conducting investigations...In addition to complying with these instructions interrogating officers should always be fair to the person who is being questioned, and scrupulously avoid any method which could be regarded as unfair or oppressive...

6(3). In the case of persons with apparent infirmity, feeble understanding or special disability and of persons unfamiliar with the English language, such special measures as are practicable and appropriate shall be taken to ensure fair interrogation.

Questions prior to arrest

7(2). If the person being questioned requests that any other person then in his company or in the immediate vicinity (other than a suspected accomplice) remain within hearing during the questioning, the member of the Force shall not unless the exigencies of the occasion require, prevent this, provided such other person does not hinder or obstruct the questioning.

7(3). If the person being questioned is suspected of being of feeble understanding, such a person shall, if reasonably practicable, be interrogated in the presence of a parent guardian, relative, friend or other responsible person not associated with the inquiry.

7(4). If a person being questioned expresses a desire to consult a legal adviser, he should be given every opportunity to do so. If he so desires, fwther questioning should except in special circumstances, be deferre4 but only for such short period as is reasonable necessary to enable the person to obtain legal advice by telephone or otherwise.

These instructions could prove sufficient to protect the rights of an offender with a disability were they scrupulously adhered to. However, the true situation appears to be that they are more often breached than they are followed. In fact, it seems that many police are unaware of the existence of the instructions. For example, one Sydney legal centre held discussions on the subject of the police instructions with an officer of the rank of Superintendent only to fmd that he was unaware of their existence.

Nor do the instructions have any legal significance. The fact that they have been breached does not entitle the accused to have a record of interview rejected by a court as a matter of right: R vLee (1980) 82 CLR 133. There is some judicial authority for the proposition that it is within a judicial officer's discretion to consider a record of interview inadmissible where there has been a breach of the Commissioner's instructions. This is insufficient for the adequate protection of people with disabilities.

The courts have a general discretion to exclude a confession or record of interview where its admission would occasion unfairness to the accused. Thus, evidence which is unreliable by reason of the accused's mental state or understanding at the time of making a confession could be excluded. If the

accused's mental state is such that he or she could not exercise the right to refuse to answer questions, then the "voluntariness test" would have been failed and the evidence ought to be excluded. However, the decision to exclude is entirely at the discretion of the judicial officer involved:

it is for the presiding judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him (R v Lee (1980) 82 CLR 133).

To protect the offender with intellectual disability it appears that judicial discretion may be insufficient. Whilst education of judicial officers about intellectual disability may strengthen the protection provided by the discretion to exclude, provisions may need to be inserted into the law in each jurisdiction to ensure that a record of interview adopted by a person who lacked sufficient understanding to knowingly do so should be prima facie inadmissible.

Giving evidence

Many people with an intellectual disability are often precluded from giving evidence in a court due to their perceived lack of capacity. This may also apply to people who cannot effectively communicate due to a physical disability. This situation may mean that people with a disability have their rights breached. For example, a worker in a residential service for people with an intellectual disability in the Sydney metropolitan area reported that a female client reported having been sexually assaulted by an assailant known to her. Police were called but refused to report the complaint, explaining that it would be a waste of their time since no court would ever believe such a person, and she wouldn't be able to give evidence anyway.

A person will be competent to give evidence in a court or judicial tribunal where they are able to swear an oath or make an affirmation (thus a person who could not speak, or could not speak in a recognisable manner, i.e. in an objectively verifiable language, would be immediately precluded from giving evidence) and where they understand the general nature and significance of the proceedings. A witness would need to have sufficient understanding to know what it meant to tell the truth, and that not to tell the truth was against the law. It was said in R v Hayes (1977) 64 Cr. App. R. 194 that:

The important consideration ...is whether the child has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.

Although this test was formulated for children, it was held applicable to adults in R v Bellamy (1986) 82Cr. App R. It would seem that a court has to be satisfied that the witness has sufficient memory, and capacity to express that memory: Ranieri v Ranien (1973) 7 SASR 418.

Thus a person with an intellectual disability is not automatically precluded from giving evidence (although a person with a physical disability who is unable to sign, to swear the oath or make an affirmation is). There is an added requirement, however, for adults with intellectually disability, which does not usually apply to other adults. Where a child witness is involved in a matter, a direction is given to the jury that it will generally be unsafe to convict on the child's evidence alone. Corroboration is required. In R v Spencer (1987) AC 128, it was held that where a person's evidence is suspect due to their mental condition, their evidence will require corroboration. This House of Lords decision may well be followed in Australian jurisdictions. To preclude a person's uncorroborated evidence merely because of their mental state may be discriminatory - many people with an intellectual disability are able to give reliable evidence. They should not be precluded by reason of their disability alone.

The problem of giving evidence in a court will be of particular importance to victims of crime and to those who have witnessed a crime. For a victim of sexual assault, his or her testimony may be the only evidence against the assailant and yet the evidentiary rules in New South Wales may prevent this evidence being offered. A working party comprising representatives from the NSW Council for Intellectual Disability, the Intellectual Disability Rights Service, and the Australian Society for the Study of Intellectual Disability examined these issues, and made several recommendations on possible changes to the law in order to provide better protection to people with disabilities. One recommendation was as follows:

Where in a criminal trial a person lacks the requisite understanding to give evidence but it reasonably appears to the judge that substantial injustice may occur if the person's version of the facts is not put before the jury, the judge shall allow the person to give evidence, but shall warn the jury that it may be

dangerous to convict unless there is corroboration of the unsworn evidence.

To assist a person who may have limited communication skills, the working party further recommended:

The unsworn evidence may be given through a special translator being a person who by reason of close personal knowledge and familiarity with the witness is able to communicate effectively with the witness either gen erally or in a limited way through signs or noises or other means. The special translator shall be subject to cross-examination as to the reliability of the translation and the witness shall be subject to cross-examination through the special translator.This provision would apply to a person with a physical disability whose disability prevented him or her from communicating and to a person with an intellectual disability who is nonverbal.

Currently many people are being denied the opportunity to testify in a court due to the restrictive evidentiary rules. If these recommendations were implemented people with disabilities who are now excluded from giving evidence (and thereby denied access to one forum in which to protect their rights) would be enabled to do so.

Sentencing

Hayes and Hayes in their book Simply Criminal have pointed out that offenders with an intellectual disability are more likely to receive custodial sentences than non-disabled offenders, and these sentences are likely to be of a longer duration. In New South Wales, the Missing Services report released by a joint working party of the Departments of Youth (now Family) and Community Services, and Corrective Services in 1985 makes the same point. This may be largely due to the lack of alternatives available to a sentencing judge or magistrate.

Victims of Criminal Activity: Case Studies

According to the law, a person with a disability who is a victim of a crime has the same rights to the protection and assistance of the law as any other person, but often it does not work this way. In May 1988 the Office of the Public Advocate in Victoria released Silent Victims - A Study of People with Intellectual Disabilities as

Victims of Crime. This report indicated that the problem of non-reporting of crimes by people with intellectual disabilities is widespread.

The following case study has been extracted from Silent Victims:

M was 18 when she left an institution. She was a young woman with a mild intellectual disability, attractive in appearance and manner and socially very at ease. She was less stiginatised than many of her peers. The institution, though providing her with some basic schooling had not taught her many community living skills. The boys and girls at the institution had separate dormitories and apart from weekly social evenings had little to do with each other away from school.

M was discharged and then spent time living in a number of unsatisfactory circumstances with her family where relationships were strained, with peers who themselves were barely getting by with few skills and little support. Over this period of almost two years M and her family maintained contact with the Office of Intellectual Disability Services. When one of the first Community Residential Units opened M moved in. The facility was designedfor such young people to allow them to team to live independently and then move on. M had difficulty with the staffed setting and bucked the relatively unstructured system. Her two years of 'independence' had given her a sense of autonomy and freedom that she wanted to experience fully. She decided to leave almost one year after moving there and returned to her family where relationships were now less strained.

M lost contact with most places that had offered her support. She had been a regular member of a social club, funded by OIDS, which closed. She was involved for a short time with a self-help organisation but for the social support rather than political commitment. She moved on.

M's friendship and relationships at this stage were sometimes with other young people with intellectual disabilities and often with young men who picked her up in pubs and parks. The relationships with young men were generally sexual and short-lived. However, these transient relationships offered her an identity, for she was desperate to appear normal attractive and desired. M was free to come and go from her family as she pleased. They were supportive and liberal minded.

M was brutally sexually assaulted mutilated and murdered at the age of 24. Her

assailants were convicted and on appeal from the Crown were sentenced to twenty year's jail.

A further case study is taken from a reported case in The Age, Saturday 21 May 1988:

A man who threatened an intellectually disabled newspaper seller to the point where the victim tried to commit suicide was sentenced yesterday to three year's jail. In the County Court Judge Murdoch said the actions of 20 year old Thomas James Ratcliffe were contemptible. He said Ratcliffe began threatening Noel Martin after Mr Martin saw Ratcliffe stealing a car and identified him to Police.

Ratcliffe, unemployed of Glenroy, pleaded guilty to blackmailing Mr Martin between December1986 and June 1987 and to a count of blackmail on 22 June 1987. Judge Murdoch set his minimum time in jail at 18 months.

The judge said 'You showed no compassion for a mentally retarded youth who had done no more than his duty as a citizen'. He said Ratcliffe found out that Mr Martin had identified him to police and made it his 'business to find out his address He then 'bullied and terrified' him with his threats.

Ratcliffe went to Mr Martin'sc home and told Mr Martin that he blamed him for the $1100 fine he received for stealing the car, demanded money from him and threatened to bash him if he did not pay. Thereafter Ratcliffe went to Mr Martin's home frequently and collected $20 a week from him.

The judge said Mr Martin was terrified of Ratcliffe and tried to sell more magazines and newspapers from his kiosk outside Glenroy railway station. For more than six months he feared to tell police about the threats. Judge Murdoch said that in early June 1987, Mr Martin became so depressed by the threats that he tried to commit suicide by throwing himself under a train at Flinders Street Station, but he was stopped by railway staff

On 22 June when Ratcliffe approached Mr Martin at his kiosk and demanded the day's takings, police arrested him.

Consultations in South Australia

People attending the forums held in South Australia made the following suggestions and observations in order to improve the South Australian criminal justice system: the SA Court Information Service needs to improve its accessibility to people with disabilities; the approach of SA magistrates to not hear a case involving a person with intellectual disability unless that person has had access to legal aid was considered to be a very positive approach; there is a need for a contact service for people with disabilities taken into custody similar to the contact service available to Aboriginal people; the time lapses between apprehension and court appearances and sentencing are excessive and render much of the criminal justice system meaningless for all individuals, including those with disabilities; disability awareness needs to be incorporated into the training of police, court staff and others involved in the criminal justice system; and other authorities which have regulations with criminal penalties for nonobservance should make sure that these are clearly understood by all members of the public (e.g. the SA State Transport Authority has a number of regulations about tickets and behaviour that are not clearly displayed or are only advised by fine-printed signs placed high in buses and trams, and conversely drivers need more management back up in order to enforce reserved seats for the frail, the elderly and younger people with disabilities).

Major Issues and Recommendations

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.

Chapter 6: Goods and Services Issues Addressed Denial of Rights Banking And Finance Health Services Transport and Travel Superannuation Major Issues and Recommendations

Issues Addressed

The New South Wales Anti -Discrimination Act 1977 (the ADA) makes discrimination on the grounds of physical or intellectual impairment unlawful in the provision of goods and services (ss. 49K, 49Z), subject to certain exceptions. 'Services' are defined in s.4 of the ADA to include: services relating to banking, insurance, and the provision of grants, loans, credit or finance; services relating to entertainment, recreation or refreshment; services relating to transport or travel; services of any profession or trade; services provided by a council or public authority.

These provisions include goods or services provided free or for a fee.

Discrimination will occur where a person is refused goods or services or where the terms on which the goods and services are provided are different from those offered to non-disabled persons.

The evidence collected by project workers suggests not only that goods and services are sometimes provided to people with disabilities on different terms from those offered to non-disabled people, but that people with disabilities are very often confronted by disabling circumstances before they even attempt to obtain certain goods and services:

banks are often inaccessible; insurance and fmance companies openly deny people insurance coverage and credit based on the perception of increased risk; cinemas and theatres often have inaccessible toilets; other forms of entertainment may be prohibitively expensive for a person in receipt of an Invalid Pension; and in most States, public transport is particularly inaccessible for people with disabilities.

This chapter accepts and adopts the multi-faceted definition of services provided by the ADA. The evidence provided in this chapter is mostly anecdotal; where possible, however, certain specific State practices have been mentioned.

Denial of Rights

Banking And Finance

It appears that some providers of financial and insurance services equate disability with irresponsibility or inability to manage money or property. This has the effect of increasing the likelihood of a person with a disability being refused credit, fmancial services, or insurance, or being offered the service on less favourable terms. Some examples follow. Counter banking is extremely difficult for people in wheelchairs. Most of the automatic tellermachines are set up too high in the wall to be reached from a sitting position. This means a person in a wheelchair has the option of either giving a friend the keycard number or asking the friend to go inside the bank. If there are steps into the bank, this makes wheelchair entry virtually impossible. If there is a rear 'disabled access', quite often a person in a wheelchair has to flag down someone in the street and ask them to go into the bank to:

(a) find out where the access is and how to get to it; and

(b) have someone unlock the door or perform any actions to make such entrance actually accessible. Once inside the bank, a person in a wheelchair will find that all the queueing guides of poles and rope are too narrow and that the counters are too high and he/she will have to suggest that the bank clerk come round to the front. Often there are no low tables available for paperwork to be processed. People with intellectual disabilities have found it difficult sometimes to convince bank managers that they could run a bank account; people in institutions have found it even more difficult to do so, since they often had no previous record of banking. One woman with intellectual difficulties was not able to get a bankcard with a $500 limit until she pointed out to the bank that she had a current account with them that had over $1500 in it. She attributed this discrimination, however, to her low income rather than her disability. A charitable community group whose charter was to provide non-profit housing for people with disabilities was refused a home loan at the usual rates despite the fact that several members of the group were prepared to act as guarantors. They were offered the loan provided they supply one-third of the purchase price instead of the usual one-tenth, and pay interest at the much higher personal loan rate rather than the home owners mortgage rate (ADB 1980). A woman with a visual disability reported applying for a credit card from one of the major banks for added security on an overseas trip. Despite her solid income and home ownership the application was refused without explanation. When she demanded to know the reason for refusal, a junior officer of the bank intimated that refusal was due to her blindness. After representations to higher managerial staff she received a letter of apology and the credit card. A couple with intellectual disabilities bought a television on hire purchase which was not delivered. The company involved advised that they would not proceed with the sale since the couple may not make payments, and if the matter was taken to court the company might lose (ADB 1980). A disability insurance trust in the Illawarra region of New South Wales attempted to contract for house and contents insurance over a residence for people with disabilities. A few companies were approached, but all refused to extend cover. Finally a company was found to take up the contract. However, the company imposed premiums at a rate of double the usual amount because of the 'high risk'.

Health Services

Discrimination in the provision of health care arguably occurs in these ways: denial of an available service, or provision of a lesser service, or the lack of an appropriate service at all. This seems to stem from an attitude that people with disabilities are in some way less deserving of medical treatment, or that it would be of less value to them than to a non-disabled person. This attitude, as summed up by the mother of one woman with multiple disabilities, was: "what difference would it make?"

Many disability groups argue that disability health services are often starved of properly trained staff, particularly specialists, and that this results in a lowered standard of health care for people with disabilities. This may be especially crucial where early intervention will improve the degree of disability experienced, or lessen the deterioration of a person's condition. For example, therapists, who can make a vast difference to people with disabilities (particularly to children with access to early intervention services), are in chronically short supply. This lack of trained staff has an impact both on the quality and quantity of services available to the people in need.

Outright denial of medical services also occurs due to simple prejudice. The question of denial of life saving procedures to newly born children with severe disabilities is one of the most difficult to resolve. Denial of such treatment involves a medical officer making a value judgment about the value of a life spent with a disability and deciding it has no value at all. This raises complex moral and ethical considerations concerning passive and non-passive euthanasia which cannot be addressed here.

A further issue is that of inappropriate treatment meted out to people with disabilities. The practice of giving hysterectomies or tubal ligations to women with an intellectual disability in place of a more usual form of contraception or menstrual management, without that person's informed consent, or without some form of 'substitute' consent sanctioned by society (e.g. via guardianship or court proceeding), cannot be justified.

This raises several issues. Any surgical procedure always carries an element of risk to the patient, and where the procedure is not medically necessary the risk is also incurred unnecessarily. Where such a procedure is carried out without medical justification it can also smack of eugenics. There is also the question of the denial of the rights of the woman involved to normal development, to maintain her own physical integrity and to have children if she should so wish. Furthermore, such a procedure could amount to unlawful assault.

Northern Territory (NT)

Access to health services can be particularly difficult for people in isolated communities. The NT project worker's report paid particular attention to the health needs of Aboriginal people, particularly those with disabilities.

The Review of Northern Territory HACC Urban Services 1987 noted in all areas, the shortage or lack of appropriate health resources. This was particularly evident in Katherine, Tennant Creek and Alice Springs. This has a detrimental effect on services such as assessment, active treatment and maintenance therapy, and advice about home-modifications.

Some examples follow. The parent of a small child, who has an extremely rare disability, described her experiences in Alice Springs and stated that she believes that the attitude of a particular pediatrician has made her efforts to assist her child extremely difficult. The parent believes that the pediatrician insists on being the expert in every area and rarely refers on to other specialists. The diagnosis of this child's disorder was made in Alice Springs and the parents asked for a second opinion. They have had to pay their own travel costs and accommodation each time they have gone to SA. The original diagnosis has been disputed, as this particular disorder was considered static and there are physical signs that the situation is changing. The parents have not been able to get to Adelaide to investigate further as the financial burdens they have incurred nearly resulted in them losing their house. This child is three years old and is not speaking. He attends preschool one afternoon per week and sees a speech therapist who the mother describes as 'hopeless'. He has had no comprehensive assessments for early intervention purposes and there has been no information forwarded from the doctor to the Education Department. NT Health administers the PATS scheme which enables a patient to travel interstate to receive medical treatment, if it is not available in the NT. The scheme allows an escort to accompany the patient; if nursing support is required a nurse will accompany the patient. If the person is an inpatient receiving treatment, the escort receives one week's accommodation allowance to stay outside the hospital. This causes escorts (usually parents) enormous expense if ongoing treatment is required. A community worker stated that people who protest about this and submit their accounts will usually have them paid; she felt, however, that this discriminated against the quiet majority and added unnecessary stress to the escort's situation. At Lake Nash, near the Queensland border, reportedly in late 1984, a child was born with a harelip and other assorted problems. The child was losing weight and the parents became concerned. The child was taken to Mt Isa Hospital and subsequently transferred to Brisbane. Several months later, the Lake Nash

teacher and his wife went to visit the child in Brisbane to take photos for the parents, who were unable to stay with the child for the duration of its recovery. The teacher asked when the child would be allowed to return home and was told that the child was to be fostered out, as directed by the matron at Mt Isa Hospital. The parents were not aware of this and certainly had not given their consent. The child is now living in Mt Isa with family friends, in order to be close to the appropriate services. An Aboriginal health worker at Lake Nash also lost a child after sending him to Mt Isa for treatment of diarrhoea. Despite NT Welfare's attempts to negotiate with the Queensland Government, the child was never returned. It is reported that an Aboriginal child may go into hospital with a broken leg or some other acute medical condition, and yet may also exhibit problems such as runny ears, skin disease or trachoma, and will be treated only for the acute medical condition and discharged. Some people believe that such problems are part of the Aboriginal condition. A Darwin man who has haemophilia and arthritis is required to travel to Sydney for treatment. He has been treated there for many years and yet has to justify this every time. The usual referral would be to Adelaide. There is no one in the NT who has expertise in haemophilia. He has regular reminders from the Adelaide Blood Bank, who maintain that he uses in excess of his allocation of blood products, a point that he would dispute. He is able to maintain full time employment, although he exceeds his sick leave entitlement every year. He expressed concern at the added costs of his disability to himself and his family, and believes that such items as new shoes, aids and other expenses should be able to be claimed as a tax deduction, since it is through the provision of these that he is able to maintain full time employment. He reports that it is relatively rare for an adult haemophiliac to be able to do this and believes that he should not be financially disadvantaged as a result.

Transport and Travel

A significant number of people with disabilities are denied any access at all to public transport and are therefore unable to use the services provided at low cost to the general community. The irony is that people with disabilities tend to be poorer than the general community and therefore more in need of cheaper public transport and less able to afford expensive alternatives.

Victoria

In Victoria, public transport, described by interviewees as never being particularly accessible to people with disabilities, appears to be getting progressively worse.

The special taxi scheme was reported to be unreliable and haphazard. Stories abounded of taxis being late, turning up on the wrong days, drivers being rude, and some allegedly taking 'visitor routes' to destinations (especially if the passenger was perceived as having an intellectual disability). At the same time, many other drivers were considered extremely helpful. Nevertheless, many of the expenses paid by taxi passengers with disabilities would not be experienced and certainly not endured by non-disabled people.

Moves to replace heavy rail systems with a light rail system in Melbourne were also causes of concern to users of public transport with disabilities. While the heavy rail system was accessible (with some difficulty) to people with physical disabilities, its proposed replacement was considered not so accessible. Some 20 complaints were lodged with the Commissioner for Equal Opportunity concerning this matter between September 1987 and February 1988. Following unsuccessful attempts at conciliation, the matters were referred to the Equal Opportunity Board. Under the terms of the Equal Opportunity Act, all complaints were, for various reasons, dismissed. The fact remains that public transport is less accessible to people with disabilities. In relation to these complaints, the Equal Opportunity Board transmitted to the Metropolitan Transit Authority its belief that pending the provision of a light rail system accessible to persons with disabilities, the provision of two extra Demand Responsive buses with the intention of providing a more flexible, and perhaps a weekend service to the impaired, whilst by no means a cure, would alleviate a presently unsatisfactory situation.

New South Wales

In NSW, the Disabled Taxi Service is a subsidised service administered by the State Urban Transport Authority. The scheme enables people with a severe physical or intellectual disability to travel in taxis (both ordinary and special wheelchair accessible taxis) at half the metered rate. To qualify, the disability must be severe and permanent and be one of the following types of disabilities: permanent inability to walk; total wheelchair dependence; severe ambulatory problems; total loss of vision or severe vision impairment; intellectual disabilities causing unacceptable behaviour problems or requiring constant assistance by another person.

The main problems with the Disabled Taxi Service are its cost and notorious unreliability. Taxi fares, even when halved, are high. The Australian Quadriplegics Association has estimated that the weekly cost of using the service to and from work can be around $100. This should be compared with the cost of transport to work for a non-disabled person using a train or bus, which would average approximately $12. Given that people with disabilities are generally already poorer than their non-disabled counterparts, this enormous cost seems doubly unfair. The unreliability of the service also causes significant problems for people with disabilities. According to users of the service, it is not uncommon to wait two to three hours for a taxi which was often booked the night before, or is the subject of a regular booking. This is obviously unacceptable to working people or people attending appointments with doctors or therapists, as it is essential to them to arrive on time. Whilst public transport is sometimes late and is subject to cancellations and breakdowns, regular delays of two hours would simply not be tolerated - either by the consumers or by the service providers. It seems grossly discriminatory that people with a disability not only pay more for their transport, but in addition receive a far inferior service than regular users of public transport.

Northern Territory

In Darwin, there appears to be adequate provision of parking spaces for disabled drivers. This scheme has been assisted by the newly introduced by-laws authorising policing to discourage non-disabled drivers from using reserved spaces. Unlike drivers' licences, special parking permits, such as those issued to people with disabilities, are only valid in the State of issue. Hence a person with disabilities from another State who has a special parking permit cannot park legally in a reserved space whilst in the NT.

There is a bus system operating in Darwin. Several service providers also have their own buses, some of which have wheelchair hoists. A consultancy commissioned by the Department of Transport and Works is looking into the viability of adding special purpose buses to the existing public Darwin Bus Company services. This is felt to be necessary, as thus far there has been little cooperation by those who are in possession of special purpose buses.

There is no public transport system in Alice Springs. There are no special purpose taxis. The Bindi Centre has a bus to transport some clients to the Centre. There is no public transport system in Katherine, although Kalano Community Health has a bus which goes to some of the fringe camps around Katherine.

In Tennant Creek, there are no footpaths beyond the main street. The footpath which does exist is described as being 'pretty stony', basically forcing a person in a wheelchair to use the road itself. The Coordinator of the Fuliwood Centre described a new recreational facility which has just been completed, as having great facilities for people who have a disability - provided that such persons can negotiate the shingles out the front in their wheelchairs.

Superannuation

People with physical disabilities report that the Australian Public Service has extremely restrictive access to its superannuation scheme. The general lack of flexibility in the scheme means that it is operated very conservatively in relation to a person with any form of disability. For example, there is a loading on epilepsy of 50%, which is substantial and appears to bear little relation to the actuarial odds.

Given that it is now going to be non-disabled people who will cost annuity superannuation schemes a lot more money because of the general rise in life expectancy (especially for men), the high loadings or outright denial of superannuation schemes for people with disabilities needs to be challenged.

The denial of superannuation, or the very restricted access to it, produces a further discrimination in the light of the very generous tax benefits introduced to encourage people to save for their old age. Thus, those people with disabilities who are working but who are restricted in their access to superannuation schemes experience the following discrimination: no, or reduced, employer contributions; no tax benefits for savings (thus effectively paying a higher tax rate for savings than do non-disabled people in the workforce).

Major Issues and Recommendations

In South Australia, Victoria, New South Wales and Western Australia, current antidiscrimination legislation covers discrimination on the ground of impairment in the provision of goods, services and facilities.

Two points need to be made here. Firstly, in those States where antidiscrimination legislation does not exist, a first step towards combating

discriminatory practices would be the introduction of such legislation. Secondly, anti-discrimination legislation cannot be seen as a panacea for overcoming discriminatory practices: the fmal chapter of this Discussion Paper details a range of ways in which the rights of people with disabilities could be better protected.

The provision of goods and services is an area where federal involvement is least pronounced. This Discussion Paper highlights the serious detriment suffered by people with disabilities because of discrimination. It establishes a clear need for stronger federal legislation to prohibit discrimination on the grounds of disabilities in the provision of goods and services.

The Discussion Paper identifies a wide range of discriminatory practices against people with disabilities in the provision of goods, services and facilities, and, in addition to the suggestions above, recommends that: those jurisdictions without anti-discrimination legislation consider discrimination on the ground of disability as an area requiring attention and action; 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 the Conclusion under the section entitled 'Dealing with Discrimination'.

Chapter 7: Conclusion

Recommendations Employment Education Accommodation Criminal Justice System Goods and Services Dealing with discrimination

Legislation 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.

Recommendations

Employment

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.

Education

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.

Accommodation

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 CommonwealthState 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.

Criminal Justice System

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.

Goods and Services

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'.

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: legislation 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

Legislation

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.

Advocacy services for individuals and groups

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.

Adequate resourcing to ensure real choices

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.

Physical design standards that promote access

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.

Advocacy within government - the role of State/Federal advisers on disabilities

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.