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Submission to the Royal Commission on Violence, Abuse, Neglect and Exploitation of People with
Disability
19 May 2022
Right to Communicate
Disability
Discrimination
Legal Service Inc
Inquiries to: Disability Discrimination Legal Service Inc
Julie Phillips c/o Ross House Association, Inc.
Manager 247 Flinders Lane
Felix Walsh Melbourne, 3000 VIC
Policy & Law Reform Officer Ph: 03 9654 8644 Disability Discrimination Legal Service Fax: 03 9639 7422
TTY: 03 9639 7 422
Country: 1300 882 872 Website: www.communitylaw.org.au/ddls Email: info@ddls.orq.au
ABN 36 079 687 722
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Right To Communicate
I Introduction
[1] The Disability Discrimination Legal Service (‘DOLS’) is a community legal centre that specialises in disability discrimination legal matters. The DOLS provides free legal advice in several areas including: information, referral, advice, casework assistance, community legal education, and policy and law reform.
[2] The long-term goals of the DOLS include the elimination of discrimination on the basis of disability, equal treatment before the law for people with disability, and to generally promote equality for those with disability.
[3] The right to education is often described as a multiplier human right. 1 If an
individual’s right to education is successfully and meaningfully realised it has a beneficial effect on the individual throughout their life. Such an analysis is just as applicable to students with disability as to those without disability. A meaningful education opens up opportunities that would otherwise not exist, potentially reduces future support needs, and aids in long-term inclusion in the community.2
[4] For students who have particular communication needs, ensuring that they can access the education being provided is crucial for them to be able to develop to their full social and academic potential. Initially, it is important to note that the DOLS’ understanding of communication needs, and as such the focus of our submission, are:
a. Those whose communication requirements mean they communicate in a different language. This is largely those students who are Deaf/Deaf blind (“Deaf”) who use Auslan (Australia’s native sign language), and in the case of those who are Deafblind, Auslan through tactile signing.
b. Those who communicate in the English Language but do so through a different method. This includes those with a visual impairment who rely on Braille or software programs, hard of hearing people who may require specialised equipment (eg Radio Frequency Units, hearing loops), and those individuals who are non-verbal and use a form of Augmentative and Alternative Communication (‘MC’).
[5] Should the deliberate withholding of the ability to communicate be viewed as abuse? The inability to communicate has serious consequences, including but not limited to the inability to :
a. report abuse; b. express pain, wishes and life choices; c. make decisions; d. receive an education/training; e. participate in the community. [6] The research is clear on the links between the inability to communicate and behaviours of concern, such behaviours often being responded to in schools through
1 Meghan Campbell, ‘Equality and the right to education: let’s talk about sex education’ in Sandra Fredman and Meghan Campbell (eds), Human Rights and Equality in Education: Comparative Perspectives on the Right to Education for Minorities and Disadvantaged Groups (Policy Press, 2018), 111, 111 (‘Equality and the right to education’). 2 National Audit Office and Department for Education, Oversight of special education for young people aged 16 25 (HC 1585, 4 November 2011 ), 10-11.
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assault and false imprisonment (euphemistically referred to as restraint and seclusion). We submit therefore, that at the least, the withholding of communication should be viewed as abuse and/or neglect, and therefore falls under the terms of the Disability Royal Commission.
[7] Our submission will begin by positioning the right to communicate, including both forms as outlined above, as an element of international human rights law. This will include a consideration of the International Covenant on Civil and Political Rights (‘ICCPR’), the Convention on the Rights of the Child (‘CRC’), and the Convention on the Rights of Persons with Disabilities (‘CRPD’).3
[8] We will then provide an overview of the current difficulties in ensuring Australian, and particularly Victorian, students with communication needs can access the education they are entitled to. This section will emphasise the difficulty in producing a meaningful picture of the current situation due to the lack of quality data. As such, it relies on the little data available and the continued litigation in this area.
[9] Finally, we will look at two alternative approaches to ensuring students with communication needs have access to their education. While both these examples focus on the rights of students who are Deaf, we believe that these rights should be extended to those students who require alternative communication methods. The two approaches chosen are:
a. The approach taken in New Zealand which relies upon reasonable adjustments through discrimination law but further facilitates their access by officially recognising New Zealand Sign Language as an official language of the country.
b. The approach taken in Norway which relies upon including within the Education Act 1998 rights to the delivery of education in Norwegian Sign Language, and Norwegian Sign Language being part of the Norwegian curriculum.
[1 O] Ultimately, we will suggest that the Norwegian approach is most appropriate as it provides clear legal expectations that education providers must comply with and helps to ensure a quality education through an alternative language or communication method.
II Right To Communicate Under International Law
[11] The ability to communicate is a foundational ability that facilitates an individual’s inclusion into society and is crucial to the realisation of other human rights. Communication can essentially be understood as the ability “to receive process, store and produce messages.“4 Importantly, this conceptualises a two-way process that involves the person receiving information/messages as well as the person producing and expressing the information/messages. As such, what it requires is that each individual has a process that allows them to engage in both sides of the communication process. It does not entitle an individual producing
3 Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)[’CRC1; Convention on the Rights of Persons with Disabilities, opened for signature on 30 March 2007, A/RES/61/106) (entered into force 3 May 2008) [’CRPD1; International Covenent on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
[’ICCPR1-
4 Sharynne McLeod, ‘Communication rights: Fundamental human rights for all’ (2018) 20(1) International Journal of Speech-Language, 3, 3.
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information/messages to have an influence on the person receiving it. The right to have an influence may be included in other rights though, for example:
a. Article 33.3 of the CRPD - the right to full involvement in the process of domestic implementation and monitoring.5
b. Article 15.1 of the CRPD - the prohibition against treatment without informed consent.6
[12] In a verbal communication context, for the disability community, there are broadly three groups of people whose right to communication may require additional supports.
a. Those with a speech or hearing impairment but who utilise the verbal English language. An example may be a person with a stutter, or a person who relies on hearing aids.
b. Those with a speech impairment, or neurodiversity who don’t verbalise fluently, but use the English language through a different medium. This could be a person with aphasia, or Autism Spectrum Disorder, who utilises AAC.
c. Finally, there are those who are Deaf who don’t utilise the English language but rather their native sign language, in Australia being Auslan.
[13] The focus of this submission is largely on groups 2 and 3, as these people are using a different communication process. For group 2, while the English language is being used, the vehicle for communication is not verbalisation but the use of AAC. For group 3, a different language is being used.
[14] The right to communicate in international law can be sourced from Article 19 of the
Universal Declaration of Human Rights (‘UDHR’):7
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
[15] Importantly, Article 19 describes a similar two-way process where individuals can both “seek, receive and impart” information.8 For this to provide more than nugatory protection, the right to “seek, receive and impart” information must be understood as to imply a shared system of communication. Without such an interpretation, Article 19 does not protect an individual’s right to the opportunity to exert influence through public debate and dialogue, as intended according to the Human Rights Council.9 As such, Article 19 includes a right to a shared and accessible system of communication that allows a person to “seek, receive, and impart information.” 1 ° For many Australians, this right to a system of communication is realised through education and training in various written and oral forms of the English language. For both groups focussed on for this submission, this requires education and training in an alternative shared and accessible system of communication.
[16] The right to communicate, as outlined in Article 19 of the UDHR, is also included in a similar form in the ICCPR and some of the international conventions dealing with
5 CRPD (n 3), Art 33.3. 6 Ibid, Art 15.1. 7 Universal Declaration of Human Rights, GA Res 217 A, UN Doc A/810 (adopted 10 December 1948), Art 19.
[’UDHR1
8 Ibid. 9 Human Rights Committee, General Comment No 34: Article 19: Freedoms of Opinion and Expression, 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011 ). 10 UDHR (n 7), art 19.
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particular topics like the CRC.11
[17] The CRPD adopts a similar understanding to the right to communicate but is far more explicit. This is evident in the phrasing of the convention. Firstly, the CRPD specifically defines communication to include communication systems that would apply to the second and third groups of reference for this submission including “Braille, tactile .. .plain-language …. [and] Augmentative and alternative modes, means and forms of communication.“12
[18] Secondly, Article 21 of the CRPD contains the right to freedom of expression.13 Importantly, Article 21 states: “the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice”
[19] This clearly indicates that the right to freedom of expression incorporates a two-way system of communication that is accessible and inclusive of people with a variety of communication needs. This is further confirmed in the expectation that state parties “facilitat[e] the use of sign languages, Braille, augmentative and alternative communication … in official interactions” and that they must “urg[e] private entities that provide services to the general public … to provide information and services in accessible and usable formats for persons with disabilities.“14 These both make clear that the system of communication is only useful when its accessible between all parties imparting and receiving information.
[20] Finally, Article 24 of the CRPD includes the right to education. Importantly it indicates that states parties are required to facilitate “persons with disabilities… learn life and social development skills to facilitate their full and equal participation in education and as members of the community.“15 This includes the learning of “sign language” and “Braille… augmentative and alternative modes, means and formations of communication”16. Crucially, Article 24 also requires that states parties “shall take appropriate measures to employ teachers … who are qualified in sign language and/or Braille, and to train professionals and staff… [in] the use of appropriate augmentative and alternative modes, means and formats of communication. ,r17
11 /CCPR (n 3), art 19; CRC (n 3), art 13. 12 CRPD (n 3), art 2. 13 Ibid, art 21. 14 Ibid. 15 Ibid, art 24. 16 Ibid. 17 Ibid.
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Ill The Current Situation For Australian Students With Communication
[21]
[22]
[23]
Needs
In outlining the current situation for students with communications needs, it is initially worth noting that it is difficult to provide a detailed picture of the prevalence of the inability to access education. The Australian Bureau of Statistics, when it last collected population statistics for disability, noted the following:
a. That 51.5% of Australians with Autism aged 0-20 attending an educational institution had a communication difficulty.“
b. That 21.1% of girls with a disability aged 0-14 attending an educational institution had a communication difficulty. ’°
c. That 35.2% of boys with a disability aged 0-14 attending an educational institution had a communication difficulty.7°
d. That 34.9% of people with any disability finished school at year 10 or below.?! e. That 32.4% of students with autism finished school at year 10 or below.22 f. That 15.4% of students with no disability finished school at year 10 or below.?3
g. That 59.3% of students with no disability completed tertiary education of some form.”4
h. That 45.5% of students with any disability completed tertiary education of some form.?°
i. That 26% of students with autism completed tertiary education of some form.
This information clearly shows a connection between disability and poorer educational outcomes. It may also indicate, due to the high prevalence of students with Autism and communication difficulties, a connection between poor educational outcomes and associated communication needs. Unfortunately, this information doesn’t allow for a comparison of the educational outcomes on the basis of different disabilities, nor does it provide a clear picture on the number of students who are Deaf or who require alternative communication forms. As such, the statistics provide an unclear picture.
Nor are there more nuanced publicly available statistics regarding the quality of education. Importantly, for students who have specific communication needs, an important indicator is that the communication method used to access and provide education is the most appropriate for the student concerned. For example, for many students who are Deaf, the most appropriate method would be Auslan including through tactile means. As an officially recognised community language, it is the only native language amongst the Australian Deaf Community.’ It is also the most meaningful method; alternatives such as Signed English are not appropriate because, as an exact reflection of English they follows the syntax, semantics and
18 Australian Bureau of Statistics, ‘Disability, Ageing and Carers, Australia: Summary of Findings’ (Summary report, 24 October 2019) <https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers australia-summary-findings/latest-release#data-download>
19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid.
26 |bid.
27 Deaf Australia, Submission No 37 to Australian Law Reform Commission, Inquiry into Equality Capacity and
Disability in Commonwealth Laws (20 January 2014), 3.
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structure of English resulting in translation and speed difficulties. Signing in English does not meet the criteria of being a sign language - it is English in fabricated signs which do not reflect the differences in words that appear the same in English, but have different meanings. On the other hand, students who are not Deaf but do have other communication requirements may be best suited to a communication method that does replicate the English language through the use of various forms of AAC.
[24] There is little information on the communication methods used for students who are Deaf , or who have other communication needs, and their educational attainment. However, the continued litigation and formal complaints made regarding the provision of alternative communication methods for students who are Deaf as a form of reasonable accommodation is a strong indicator that this remains a prevalent issue in Australia. Between 1993-2003, there were at least 11 complaints lodged with the
then Australian Human Rights and Equal Opportunity Commission regarding
deafness and education.28 Since then, there have been at least three further cases that have proceeded to adjudication: Beasley v Deparlment of Education and
Training, Devlin v Education Queensland and Hurst v Education Queensland.29
Importantly, these cases recognised that the provision of an unnatural method of communication, Signed English and ‘Total Communication’, lead to serious detriment for the student who was Deaf.30 In Beasley it was decided that:31 “In my view the circumstances for comparison are the use of an effective method of communication for classroom instruction… I am satisfied that Pearcedale treated Dylan less favourably than the hearing children in his class by using with him a less effective method of non-written communication than the spoken word used for the hearing children”
[25] In these cases the court and tribunal stressed that they were not making a decision about whether Auslan should be the language used for all students in education settings, but rather answering the question for the particular individuals involved.32 However, in Beasley, the state was “urge[d]” by the tribunal member to consider the situation of students who were Deaf, the funding model, the communication methods used, whether teachers had the necessary Auslan training, and whether the relevant policies and programs had the necessary flexibility to respond appropriately to different students.33 Currently, there does not appear to be a publicly available policy regarding the inclusion of students who are Deaf on the Victorian Department of Education and Training’s website that helps to ensure that these students can access the education they are entitled to in an effective manner.
[26] While there is some limited information and guidance available on the experiences of students who are Deaf and the barriers they face, there is a complete dearth of similarly official information and guidance for students with other communication needs. As such, the DOLS can only rely on the anecdotal evidence provided to it which suggests a similar lack of consideration of identifying an appropriate communication method for these students, nor a meaningful effort to develop their skills using that method.
28 Linda Komesaroff, ‘Allegations of Unlawful Discrimination in Education: Parents Taking Their Fight for Auslan to the Courts’ (2004) 9(2) Journal of Deaf Studies and Deaf Education, 210. 29 Beasley v Department of Education and Training [2006] VCAT 187 [’Beasley]; Hurst and Devlin v Education Queensland [2005] FCA 405 [‘Hurst’] 30 Hurst (n 29), [351]-[365]; Beasley (n 29), [147]. 31 Beasley (n 29), [145]-[146]. 32 Ibid, [180]; Hurst (n 29) [424]-[428]. 33 Beasley (n 29), [186]-[187].
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IV Alternative Approaches
[27] Finally, it is worth outlining two alternative approaches that have been taken in other countries. Both of these approaches are based on providing legal protections to ensure that students are educated using a communication method they can meaningfully engage with. The relative successes of these alternative approaches demonstrate both that, firstly, it is not impractical to protect these more nuanced rights in legislation rather than policy documents, and secondly, that it is necessary to ensure adequate protection.
[28] The two approaches chosen are that taken in New Zealand, and Norway. We believe both approaches provided greater protection than that which is provided currently in Australia. Ultimately, we believe the Norwegian approach, which grants the use of Norwegian Sign Language as an entitlement, is the most appropriate because:
a. It ensures a degree of standardisation in the quality of education via Norwegian sign language.
b. It removes the need for individual students to request, and ultimately litigate if necessary, for the use of sign language as a reasonable adjustment.
[29] It is important to note that although these laws concern facilitating access to education for people who are Deaf/Deafblind, we believe that similar rights should be provided for those who use AAC to communicate in English.
A New Zealand
[30] New Zealand’s approach to ensuring access to education is similar to Australia, in that it relies upon the use of discrimination law. This is enabled through the Human Rights Act 1993, which provides a range of rights that all individuals in New Zealand are entitled to, and prohibits government service providers from engaging in unlawful discrimination.34 Importantly, the concept of discrimination in the context of disability includes the obligation to provide people with disability adjustments or accommodations to enable them to access the service being provided so they receive the same benefit as others.35 This includes the use of New Zealand Sign Language or an AAC device.
[31] The major difference in the Australian and New Zealand approaches is the status of their respective native sign languages. In Australia, Auslan was recognised as a community language in 1991. While this provides official recognition of its status as a language used amongst the Australian population, it does not provide any direct legal protection.
[32] In New Zealand, New Zealand Sign Language is a legally official language of the country.36 While the relevant Act only creates enforceable legal rights for the use of New Zealand Sign Language in legal proceedings, it does help ensure its use in education. It does this by strengthening the arguments in favour of providing access to education via New Zealand Sign Language. Firstly, the legislation provides a range of principles that government departments “should, when exercising its functions and powers be guided” by.37 Importantly one of these principles is that “government services and information should be made accessible to the Deaf
34 Human Rights Act 1993 (NZ), pts 1A-2. 35 Smith v Air New Zealand (2011) NZCA 20. 36 New Zealand Sign Language Act (2006), s6. 37 Ibid, s 9.
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community through the use of appropriate means (including the use of NZSL).“38 While this is not an obligation placed upon government departments, it does strengthen the argument that the provision of New Zealand Sign Language is a reasonable measure. Secondly, having it as an official language, with equal status to other official languages, strengthens the argument it should be provided or facilitated on an equal basis. In this way, it would be similar to the way that English and French are treated as equal official languages in Canada.39
B Norway
[33] Norway has taken a similar approach to Norwegian Sign Language as other countries have taken to providing education in multiple official languages.40 In essence, they have provided an actionable legal right to education in Norwegian Sign Language for those students who have it as a first language, or who based on an expert assessment have a need of instruction in it. Importantly, this legal right includes not just instruction through the medium of Norwegian Sign Language but an education in Norwegian Sign Language.
[34] This approach has created a range of benefits for Norwegian students who are
Deaf:41
a. An education in Norwegian Sign Language includes learning and developing knowledge of Norwegian Sign Language and Norwegian deaf culture. This is facilitated by having regional deaf resource centres where students who are Deaf take lessons in Norwegian Sign Language allowing them to socialise with other young people and adults who are Deaf.
b. By having Norwegian Sign Language as a part of the content of the national education, it has required the Norwegian Education Department to develop a standardised curriculum in Norwegian Sign Language. Ensuring that all students who are Deaf have the opportunity to develop their language skills to a meaningful and appropriate level.
c. Finally, by having Norwegian Sign Language as a part of the content of the national education, it has required the Norwegian Education Department to develop and implement minimum requirements for teachers. This ensures that students who are Deaf receive quality communications/education.
[35] We believe these benefits, while not expressly required by the legislation, are a direct result of having a right to educational instruction in Norwegian Sign Language as well as educational instruction through the medium of Norwegian Sign Language. The Norwegian approach’s ability to ensure that students who are Deaf have the choice to be educated in Norwegian Sign Language, and ensuring that this education is standardised and of an acceptable quality, is why we believe it is the most appropriate approach.
38 Ibid. 39 Canada Act 1982 (UK) c 11, sch b pt 1, s 23. 40 Education Act, 1998 (Norway), translated by Lovdata, ss2-6, 3-9. 41 Merv Hyde, Stein Erik Ohna, and Oddvar Hjulstad, ‘Education of the Deaf in Australia and Norway: A Comparative Study of the Interpretations and Applications of Inclusion’ (2005) 150(5), 415, 419-423.
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V Summary and Recommendations
[36] For Australians who have disabilities that prevent them from easily using the spoken word to communicate, having their rights to communicate protected by law is well overdue. There is nothing more basic in life than communication. Without even the right to Auslan interpreters legally enshrined, Australians with disability are behind many countries in the world. International legislation makes it clear what is expected from State Parties, and Australia needs to meaningfully enact their obligations under this legislation.
[37] We request that the Disability Royal Commission recommend to the Commonwealth that the right of persons with disability to communicate is enshrined in legislation that mirrors Australia’s obligations as a States Party, to the disability community, as included in the numerous human rights conventions as set out above. We believe that the approach taken in Norway, where the relevant education legislation includes an express, explicit and actionable right for students to be taught in Norwegian Sign Language and to receive an education to develop their Norwegian Sign Language, is most appropriate. Further, we believe that such a right should also be provided to not just those students who use Auslan but also those who communicate through English but through an alternative method.
This submission is endorsed by:
… Disability %Advocacy ’- , Victoria Inc.
Peak body for independent disability advocacy in Victoria