Category Archives: Politics and deaf

To do our civic duty

13 Wednesday May 2015

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Jury Duty 5

My friend Gaye Lyons wants to serve on a jury. I don’t.

Lots of people are like Gaye and lots are like me. This is true of hearing people too.

Whether or not we actually want to do it, deaf people should have the right and the responsibility to do their civic duty, alongside hearing citizens. This means that when people like me are called for jury duty, we would do it even though we might not want to, because that is our duty as citizens.

But in Australia the law, or the traditional interpretation of the law, prevents deaf people from serving on a jury. It prevents us from doing our civic duty. It does not treat us as citizens equal to others.

This is essentially what the issue of deaf people and jury duty is about: whether deaf people should be treated as equal citizens and allowed to do our civic duty.

When my friend Gaye Lyons received a summons for jury duty in January 2012 she advised the court that she is deaf and requested an Auslan interpreter. Her request was refused and she was excluded from the selection process on the grounds that she is deaf and couldn’t do it. This has happened to many deaf Australians.

The Disability Discrimination Act makes it illegal to discriminate against people on the grounds of disability. But sometimes one law cancels out another. Sometimes one person’s rights override another person’s rights.

Gaye Lyons feels so strongly about her right, and the right of other deaf people, to serve on a jury and do her civic duty that she decided to challenge the court’s decision. So have others in other states, but Gaye’s is the only challenge that has progressed through the courts.

There has been much hype about Drisana Levitzke-Gray being the first deaf person in Australia to serve on a jury, in Western Australia in January 2014.

But this is a misunderstanding. Drisana did not actually serve on a jury.

She did progress further through the jury selection process than any deaf Australian we know of. When she was summoned for jury duty she requested an Auslan interpreter and was provided with one. She and her interpreter went to the court for the next stage of selection, the random ballot. Names were randomly drawn and those drawn progressed to the next stage. Drisana’s name was not drawn, so she did not progress further in the selection process and did not serve on a jury.

The breakthrough in Drisana’s case was that she was not excluded from the jury process because she was deaf. She was excluded by the random ballot. She was not discriminated against because she was deaf. She was treated as an equal citizen who could do her civic duty, at least up to the random ballot stage in the process. She might have been excluded later in the process because she was deaf, but we don’t know if that would have happened.

Gaye Lyons’ case was heard by the Queensland Civil and Administrative Tribunal (QCAT) in June 2013. The Tribunal ruled against her.

She appealed in October 2014. The Tribunal ruled against her appeal.

The Tribunal’s view was that Gaye could not serve on a jury with an interpreter because the interpreter would be a 13th person in the jury room and the jury room must have only 12 people, the jurors.

I’m sure a lot of judges don’t understand the interpreter’s role, how they work and the ethics they abide by. And yet, interpreters already work in the courts when victims, defendants or witnesses are deaf, and even when a lawyer is deaf: Queensland lawyer Kathryn O’Brien has an interpreter when she appears in court. Interpreters worked with Gaye during her QCAT hearings.

Why is the thinking so narrow-minded in relation to the jury?

It seems that researchers have identified that the sticking point is that not enough is known about what happens in the jury deliberation room. Research has shown that with an interpreter, deaf people can access and understand legal evidence and arguments on a par with hearing people, but evidence is needed to show that the interpreter does not interfere with deliberations in the jury room and is not a 13th ‘juror’.1

I’m not going to talk about the legal aspects. I’m not a lawyer. What interests me most is that laws are made by people. Laws are used and interpreted by people. Laws are unmade and changed by people. So although we need to work with the law, it’s the people, and the thinking about these laws that drive it all.

A lot of discussion centres around whose rights should come first, the deaf person’s or the victim’s and defendant’s.

People who maintain that the victim or defendant’s rights should outweigh the deaf person’s tend to brush aside arguments that different people bring different qualities to the jury deliberation.

They also brush aside questions of whether the jury should include deaf people when the victim or defendant is deaf.

Such discussions reveal an underlying assumption that having a deaf person on the jury would not be in the best interests of the victim or defendant, i.e. there is something inferior about deaf people.

Several years ago I was involved in a social media discussion with a couple of hearing people I know who work with the deaf community. One person in particular was adamant that deaf people should not be permitted to serve on a jury because they just cannot do it, even with an interpreter. He said that if he were a victim or defendant he wouldn’t want a deaf person on his jury and his right to a fair trial should override the deaf person’s right to serve on the jury.

I wasn’t particularly surprised by his views. I know that even some people who work with deaf people have low expectations of them. A friend once told me that in a candid moment he asked a hearing colleague why she didn’t like deaf people and she answered: “because they’re not educated.”

It is unusual to see anyone actually say this openly, let alone publicly, but in my Facebook discussion, the hearing person did. At one point he said: “Oh come on, Karen. We both know that so many deaf people don’t get a good education.”

This is true. The education system still does a very poor job of making education accessible and equitable for deaf people. But a poor education isn’t exclusive to deaf people. Many hearing people are not well educated. Yet they are not automatically excluded from jury service.

A jury is supposed to be representative of the community. Deaf people are part of the community. A jury process that automatically excludes people because they are deaf does not provide a true representation of the community on the jury.

Clearly there are people who have an entrenched belief that deaf people are incapable, inferior citizens. No matter how well educated and accomplished many deaf people are, there will always be others who aren’t and it seems that in the minds of many, all of us are tarred with this ‘inferior, uneducated’ brush.

What kind of civil society are we when we treat people like this?

But I take heart from the research that is being done by people like Sandra Hale at the University of NSW and Jemina Napier, previously at Macquarie University and now at Heriot Watt University in Edinburgh. Using mock trials, they are collecting evidence of what actually happens with deaf jurors and interpreters in the jury room.

And there are enlightened lawyers arguing for our right to do our civic duty alongside others. Gaye Lyons has some of the finest on her legal team.

These academics and lawyers are advancing the cause of a more just civil society.

I believe that one day soon our society will change and deaf people will serve on Australian juries. Imagine if this then leads to social justice in education! After all, people who are considered equal citizens should have equitable education shouldn’t they?

In her quest for this change for all of us, Gaye Lyons has now appealed to the Queensland Court of Appeal, on the advice of her barristers. Her appeal will be heard, with Auslan interpreters of course, on Wednesday 20th May 2015 at 415 George Street, Brisbane.2

I will be there to lend moral support to my friend and to the cause. If you believe in a civil society that treats deaf people as equal citizens, please come along and join us.

Notes:

  1. See Napier, Jemina and McEwin, Alastair, Do deaf people have the right to serve as jurors in Australia? In Alternative Law Journal Vol 40:1, 2015, 23-27.
  2. To find out what time, on Tuesday night do a Google search on ‘daily law lists queensland’ then select ‘Supreme and District Courts’, then ‘Brisbane’. The Court of Appeal list, showing names and times, should be at the top of the list.

Sticks in the forest

05 Thursday Mar 2015

Posted by in Politics and deaf

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A teacher takes some students to the forest and asks them to each bring her a stick. When they return, the teacher takes each student’s stick in turn and breaks it. She sends them back into the forest to collect more sticks. Again she takes each stick and breaks it and sends them back to the forest.

The third time the students return, they confer and when the teacher asks for their sticks they give them to her together in one bundle. The teacher cannot break the sticks, the bundle is too thick and strong.

I first saw this story told by Laurene Gallimore, a deaf African-American professor from Gallaudet University, at the World Federation of the Deaf Congress in Brisbane in 1999.

This simple story is a powerful illustration of why it is so important for deaf people to work together in one large group in the best interests of the group as a whole, rather than individually on their own  interests. It is why we need Deaf Australia, which brings us together to advocate for our human rights.

Reminding each other of this story is more important now than ever before because Deaf Australia is experiencing its biggest threat since its establishment 29 years ago.

It is not just that Deaf Australia will lose its government funding at the end of June this year, it’s also that the deaf community has become more complacent and politically apathetic.

When I first got involved with Australian Association of the Deaf (AAD), as Deaf Australia was then known, 26 years ago, it had about $1,000 in the bank. It relied on membership fees and small donations from Deaf Societies. Volunteers did the work, we paid our own costs for attending board meetings, sleeping on each other’s couches, and as Secretary I paid some of the administration costs myself. Meetings and events were well attended and people were very passionate about the issues we worked on.

For several years in the late 1980s and early 1990s when Colin Allen was President and I was Secretary, we met at his office at least once a week after work to do AAD work. His employer generously allowed us to use their equipment and supplies.

Our funding requests to government were regularly refused on the grounds that a ‘deaf’ organisation, Australian Deafness Council (ADC, the earlier version of Deafness Forum) already received secretariat funding.

Deaf people established Deaf Australia in 1986 as their representative organisation, controlled by deaf people, because the deaf voice had been ignored during many years of trying to work within ADC. Like Deafness Forum, ADC was not controlled by deaf people and the majority of its members were service providers. But government didn’t care.

In those days Deaf Societies hosted an annual national deafness conference. At the 1992 conference in Perth, Brian Corcoran, a bureaucrat in what is now the Department of Social Services, made a presentation. Afterwards, an audience member asked why government wouldn’t fund AAD and when Mr Corcoran trotted  out the usual answer the audience went wild, stomping their feet on the floor and demanding funding for AAD.

Colin and I were working in the conference office at the time and missed the excitement but someone came running to fetch us. Colin introduced himself to Mr Corcoran, expressed his regret that he had been subjected to such an angry outburst, and explained why the community was so angry.

Brian Corcoran was actually a very nice, reasonable man. His department paid the travel costs for Colin, myself and an interpreter to meet with him in Canberra soon afterwards. We were also accompanied by Anne Mac Rae, then CEO of the Deaf Society of NSW.

Anne Mac Rae was a wonderful mentor to us and to AAD. She didn’t do things for us, she taught us how to do them ourselves. Over several years, she taught me how to write funding submissions, coached us in preparation for meetings with government and accompanied us to several meetings where she occasionally contributed to discussions but mostly observed and later gave us constructive feedback on how to do better next time.

Our meeting with Brian Corcoran was a turning point. He genuinely listened to us. He explained that government policy didn’t allow him to give AAD secretariat funding but we could apply for advocacy and information service funding, and he offered his department’s advice on what was needed for a successful application.

So that was how AAD/Deaf Australia became a funded organisation in 1992. It has received funding continuously ever since. In 2001 government decided to recognise AAD/Deaf Australia as the legitimate organisation representing deaf people who use Auslan. Funding was increased and changed to secretariat funding, even though Deafness Forum was already funded.

Much has been achieved in the 23 years that Deaf Australia has had paid staff.

But now, if government can’t be persuaded to reinstate funding and alternative funding can’t be found, at the end of June this year there will be no staff. If Deaf Australia is to continue it will have to become wholly voluntary again.

Will this work? I think so, up to a point. The board will likely take on more work. Some of us will do some work voluntarily again. But new and passionate younger volunteers with new ideas and the vitality of youth are needed.

The community is different now. People are accustomed to taking Deaf Australia for granted and having staff do the work. Over the past few months, a few members have called for deaf people to step up and show their support for Deaf Australia – to become members, make donations and so on – but little has changed.

All deaf people benefit from Deaf Australia’s work, but its membership fluctuates between 300 and 500. Numbers could be much higher.

Over the years I have heard many reasons why people aren’t members: it’s too expensive ($30 per year); they don’t like the President or the CEO or someone else on the board or staff; they don’t like something it did, in particular, the cinema captioning issue and closing the website discussion page 10 years ago; they don’t like politics; they want more immediate benefits and freebies; it doesn’t lobby for something they want – someone once said that even though they use the NRS (National Relay Service), NABS (interpreting service for health appointments) and the EAF (Employment Assistance Fund) these are things that Deaf Australia has already done for them and they want it to work on getting free hearing aids before they will join.

But by far the most common reason is they don’t know about Deaf Australia or understand what it does for them.

Deaf Australia has never been great at beating its own drum. It has never had enough peacocks strutting its stuff.

Many people assume that only service providers and hearing people do the things for them that Deaf Australia does. I would be a rich woman if I had a dollar for every time I told a deaf person that Deaf Australia lobbied for the NRS, for NABS, for the EAF, for Auslan in education and early intervention, and so on and was told in reply: “No! ACE did it! Deaf Society did it! DCA did it!”

It can be hard to convince deaf people that the big picture is more important than any one single issue or personal dislikes and grudges, and that politics matters to all of us, especially because we are a minority group.

For years I tried to persuade my friend Kevin Lyons to become a member. He was happy for his wife Gaye to be a member, but sport was his thing and he wasn’t interested in politics.

Then Gaye started working with me at Deaf Australia and going home with stories of issues we were working on, how hard we had to work to win small steps forward. Now Kevin is a committed member and he worries about the future: what will happen to deaf people’s rights if Deaf Australia has no money or staff and even worse, has to close?

We need Deaf Australia. It is the only national organisation that is wholly controlled and run by deaf people themselves. It is the only national organisation that has no driving interests other than the rights of deaf people, that lives and breathes “nothing about us without us”.

But right now, Deaf Australia needs us.

Now is not the time to be dragging out personal dislikes, ancient grudges, criticisms and personal agendas.

Now is the time for the big picture, for all of us to talk to each other about what Deaf Australia achieves for us and why we need it and how each of us can support it. It’s not hard: become a member; make a donation; get involved in campaigns; and encourage your family and friends to do the same.

We need to make the bundle of sticks that is Deaf Australia thicker and stronger. Otherwise we will all be just individual sticks in the forest.

Wrong way! Go back!

19 Wednesday Nov 2014

Posted by in Politics and deaf

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Wrong Way Go Back Sign

I’m worried. I am very worried. You should be too.

Many national organisations representing people with disabilities are about to lose their funding, including Deaf Australia, which represents me.

If this happens, Deaf Australia could be forced to return to what it was in the 1980s, a small volunteer-run organisation with no funds. But in the 1980s volunteering was a strong part of our culture.  The world is different now. People volunteer a lot less.

What will life be like for us if this happens?

Not good. Not good at all.

The price of liberty, they say, is eternal vigilance. The progress our representative organisations have made for us over the years has been about our human rights, our liberty.

For deaf people, the National Relay Service, new and improved interpreting services, captioning, Auslan/English bilingual education and early intervention; all these things give us access and the freedom to make our own choices. For people with other disabilities, it means things like accessible premises and transport.

When funding for organisations that advocate for us is gone, who will be there to be vigilant for us?

The gains we have made will be eroded. The onslaught has already begun: just a couple of weeks ago the government introduced a bill into Parliament seeking to wind back compulsory reporting and other protections of TV captioning.

With interventions from Deaf Australia and other organisations , and Get Up petitions signed by many of us, this bill has now been referred to a Senate committee.  We still have a chance of retaining these protections, so long as organisations like Deaf Australia are able to do this work of fighting to protect our rights.

Without Deaf Australia and similar organisations for other disability groups what will happen in these situations?

We will all be on our own, fighting for our rights ourselves and struggling to be heard.

Years ago on my way to work each morning at the State Library of NSW, I used to walk past NSW Parliament House and often there would be a lone person outside the fence with a placard, sometimes a small group of people. And always I’d think to myself: “You’re wasting your time. You haven’t got a hope in hell of having your issue heard.”

This will likely be us soon.

The threat to our ability to be heard, and ultimately our liberty, is happening because the Australian Government is introducing a new funding model.  Currently peak representative organisations are funded under a program called National Secretariat Funding. The new program is called Sector Development for Disability Representative Organisations (SDDRO).

It was released in July this year. When I looked at the information I was horrified.  In a nutshell, instead of funding 13 national disability representative organisations as they do now, government wants to fund seven. Instead of the recurrent funding they were receiving, everyone had to apply for funding in a competitive tender.  The outcome is expected to be known in December.

The seven disability ‘population’ groups that will be funded under this new SDDRO model are: women, Aboriginals, people from a Cultural and Linguistically Diverse (CALD) background, children, service providers and two cross-disability consortiums.

So five organisations currently funded will likely continue to be funded. Eight will be out in the cold. These eight plus any others not currently funded but needing funds, will have to squeeze into the two cross disability consortiums.

Only three of the five are actually Disabled Person’s Organisations (DPOs – organisations controlled by people with disabilities themselves); one is controlled by parents and one represents service providers. Why will service providers be funded to advocate for themselves when so many DPOs won’t be? Why are the interests of service providers more important than the interests of the people who use their services? Go figure!

Each of the seven organisations/consortiums will get $300,000 per year. (Most get about $165,000 now; National Disability Services, representing service providers, gets about $350,000 now.)

So if there are, say, 15 organisations in a cross-disability consortium, then each will perhaps get $20,000. If the consortium’s application is successful; it might not be, in which case they will get nothing.

According to government, this new model is their way of ‘encouraging’ the disability sector to ‘organise itself’.  Fiddlesticks I say!

Why has government decided to do this?

It has been said that the National Disability Insurance Scheme (NDIS) will give people with disabilities the support they need, so most won’t need advocacy anymore.

More fiddlesticks!  Many things are not included in the NDIS: education, employment, health services, transport and so on. We still need advocacy for these things.  We still need advocacy to ensure the NDIS does what it should!

And anyway, bureaucrats in the Department of Social Services have been working on a new funding model for years, since long before the NDIS was a blip in Bruce Bonyhady’s imagination.  I know this because I was one of the people ‘consulted’ about it over many years.

Government is constantly bombarded by requests to fund representative organisations. Many disability groups receive none, e.g., people with Down Syndrome and people with autism. Government has constantly cried “no money!”  Yet a few years ago Children with Disability Australia, run by parents, received funding for the first time.

Why has government decided to fund what they call ‘population groups’ – i.e. women, children, Aboriginals, and people from a CALD background – and force what they call ‘diagnostic groups’ into cross-disability consortiums that have to thinly share funding?

One, they say the model is based on the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).  The UNCRPD talks about all people with disabilities collectively and it specifically refers to women, children, Indigenous and ethnic people.

Two, they say that the new funding model discards the ‘medical’ model and uses the ‘social’ model for which we have all been advocating.

Both of these rationales are disgraceful misinterpretations, pathetic excuses to narrow down funding decisions.

The UNCRPD also refers to many other ‘population’ groups such as race, colour, religion, and to specific ‘diagnostic’ disability groups such as deaf people and blind people and their specific needs such as sign language and Braille.  Government has simply cherry picked a few ‘flavours of the month’.

And clearly they do not understand what a ‘social’ model for disability means.

A ‘medical’ model treats people as having medical problem that need to be fixed. A ‘social’ model treats us as a whole person and fixes the social environment so it includes us.

But Government has misinterpreted this to mean that it’s not about medical diagnoses anymore; therefore, ‘diagnostic groups’ (deaf, blind, autistic, intellectual etc) no longer need attention or significant funding.  Only ‘social’ groups like women, children, Aboriginal and CALD people do!

They have not understood or have ignored, for example, that while some deaf women do have issues that are women’s issues such as domestic violence, most of their issues are communication issues directly related to deafness.  A women’s organisation isn’t going to be focussed on communication: it’s a deaf issue, not a women’s issue.

And who’s going to be looking after the deaf men’s communication issues?

They have not understood that in cross disability consortiums someone still has to provide expert advice on the rights of specific disability groups. If representative organisations don’t have sufficient funding to do this then the voice of these groups will not be heard.

If all this didn’t have such disastrous consequences for so many millions of us, its stupendous stupidity would be hilarious.

After all the work so many of us did on explaining all this to government in so many ‘consultations’ it is so disheartening that they have made these decisions that disenfranchise so many.

They are going the wrong way! They need to go back and rethink the whole thing!

The other day, someone remarked that it’s probably too late to do anything about this new model. That was what motivated me to write this post.

It’s not too late. Final decisions are expected in December. Government can change course at any time.

Government can decide to throw out this disastrous new model. They can renew the funding that peak disability organisations currently get for another year or three and they can go back to the drawing board. They can, for once, actually listen to people with disabilities. They can do the right thing.

It’s time for all of us to stand up and tell them this is what they must do.

People have asked me, “Why aren’t representative organisations saying much about this? Why aren’t they making more noise?”

These organisations are between a rock and a hard place. It’s hard for them to know the best way to deal with this. If they say too much and seriously anger government they could ruin their chance for funding of any kind. If they say too little, they could miss a fairer deal.

And anyway, government – Ministers and bureaucrats – won’t talk to them about it while funding decisions are in process.

So it’s up to us, the community, to do something. The organisations that represent us and our disabled family members and friends now need us to stand up for them.

If we don’t, they may no longer be there for us, they may not be able to protect our rights anymore.

Everyone can help, whether you are disabled or not.

Send an email to Kevin Andrews, Minister for Social Services kevin.andrews.mp@aph.gov.au  and to Mitch Fifield, Assistant Minister for Social Services senator.fifield@aph.gov.au

Tell them:

The new Sector Development for Disability Representative Organisations funding model will be disastrous for millions of disabled people and is the wrong thing to do. The government needs to throw it out and develop a new model that looks after everyone fairly, not just a few selected ‘population’ groups and service providers.  Until government has done this, the current National Secretariat Funding model needs to be retained.

Remember to include your name in the email, and something in the subject field, e.g.: Funding for disability representative organisations.

And send a copy of your emails to your local Member of Parliament. Don’t know who your local member is or their email address? Find out here: http://www.australia.gov.au/faq/which-federal-electorate-do-i-live-in

To find your local MP’s email address go to: http://www.aph.gov.au/~/media/03%20Senators%20and%20Members/32%20Members/Lists/MemList.pdf

Please do it NOW! Before it’s too late!