Australian Law Reform Commission | ALRC



37. Deaf Australia Inc

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Equality, Capacity and Disability in Commonwealth Laws

Issue Paper 44 (IP44)

A Submission by Deaf Australia

20 January 2014

Prepared by Kyle Miers

Submitted by Karen Lloyd AM, Executive Officer

karen.lloyd@.au

Recommendation:

That the Australian Government creates a legal instrument recognising Deaf people’s legal right to use Auslan (Australian Sign Language) as a primary or preferred language.

Summary

Deaf people have always been part of the Australian community. There are deaf Aboriginals and Torres Strait Islanders. The first European Deaf person in Australia that we know of arrived on the Second Fleet. Since then there have been growing numbers of deaf people in Australia and today one in six Australians has some degree of hearing loss. It is projected that by 2050, one in four will have a hearing loss.

It is crucial that children acquire language skills early in life in a natural environment. Hearing aids and cochlear implants do not fix deafness to the extent that a deaf person’s ability to hear and participate in communication interactions is equal to a hearing person’s. For deaf children this means that families with deaf children and teachers of the deaf need to be trained to achieve competency in Auslan (Australian Sign Language). Deaf people need to be at least bilingual. In an English speaking country, they need to learn English to the best of their ability, and they need to use Auslan because it is the only language that is fully accessible to them.

In 1991, the Australian Government recognised Auslan (Australian Sign Language) as a community language, but this does not mean that Deaf people have the right to use Auslan in the first instance. They frequently have to fight for this right when they need to use Auslan. The Disability Discrimination Act offers a mechanism for Deaf people to lodge complaints just to obtain access to Auslan.

Much of the advocacy work that Deaf Australia does is based on Deaf people’s need to use Auslan to access basic yet important services. Some examples of services that have been introduced as a result of our and others’ work include:

In 1995, the National Relay Service was established to facilitate telephone calls between Deaf (and hard of hearing) people with the wider community. It took many more years of advocacy and was not until July 2013 that an Auslan service (Video Relay Service) was included.

In 2005, the Australian Government established the National Auslan Interpreting Booking Service (NABS) to provide Auslan interpreters for Deaf people to access private health appointments.

In 2008, the Australian Government established the Employment Assistance Fund (Job Access) to assist Deaf people and their employers to access funds so that Auslan users can access qualified interpreters in the workplace, for meetings, training and job interviews.

In 2011, the Queensland Government introduced Auslan interpreters to interpret live TV emergency announcements and updates on the Queensland floods and cyclone. The NSW Government also used interpreters to interpret live emergency announcement and updates in the Sydney bushfires in October 2013.

Australia ratified the United Nations Convention on the Rights of Persons with Disabilities in 2008. This Convention recognises sign languages as equal to spoken languages. It requires governments to progressively strengthen the status of sign language in different areas of a Deaf person’s life. These steps are necessary to respect, protect and promote the right to dignity, equality, freedom of expression and independence for Deaf people and other Auslan users.

Consequently, Australia has a responsibility to ensure that Auslan (Australian Sign Language) is recognised as a fundamental human right for Deaf people. For Deaf people, the right to use Auslan underpins all other human rights. It is only when they can use Auslan that they are able to achieve so many other human rights, as outlined in this submission, including access to justice.

For these reasons, Deaf Australia believes that the Australian Government needs to create a legal instrument that recognises and gives legal status to Deaf people’s right to use Auslan.

Facts

• Auslan (Australian Sign Language) is a natural language and language of choice of Deaf people (Deaf Australia, 2010).

• Auslan (Australian Sign Language) is an accepted communication method recognised by the National Accreditation Authority for Translators and Interpreters.

• Auslan is recognised as a community language (Dawkins, 1991).

• One in Six Australian have some form of hearing loss, with that number projected to increase to one in four by 2050. Hearing loss is the 2nd most prevalent national health issue, yet remains the 8th national funding priority (Access Economics, ‘Listen Hear’, 2006).

• More than 96% of deaf children are born to hearing parents who have little or no knowledge of deafness (Victorian Deaf Education Review, 2009).

• Approximately 83% of deaf children attend a mainstreamed education program where they are often the sole deaf student in their class or school (Power & Hyde, 2002).

• Over 94% of Aboriginal prison inmates were found to have a significant hearing loss (Vanderpoll & Howard, 2012).

About Deaf Australia

Established in 1986, Deaf Australia is the only national peak organisation for Deaf people in Australia that is governed and managed by Deaf people. It represents the views of Deaf people who use Auslan (Australian Sign Language).

Deaf Australia works with Australian governments and collaborates with key stakeholders to ensure that Australia complies with the United Nations Convention on the Rights of Persons with Disabilities.

Deaf Australia’s vision for 2020 is that Deaf people will have made significant advancements to equality and quality of life through:

1. Full human rights, self-determination and political strength;

2. Full access to communication, language and information;

3. Quality education, educators who are Deaf and who are proficient Auslan users, access to universities and life-long learning programs;

4. Full respect for and widespread use of Auslan by non-Deaf people;

5. Diverse employment, including, for example, teaching, administration, medicine, psychology, business, law and politics;

6. Full interaction through provision of qualified interpreters and information technologies;

7. Full partnerships with families, educators, health providers, bio-ethicists and policy-makers. “Nothing about us without us” will have become the standard;

8. Auslan is recognised and linguistic rights are realised in practice.

What is Auslan?

Auslan is the sign language of the Australian Deaf community. The name Auslan (from Australian Sign Language) was coined by Trevor Johnston, author of the first Auslan dictionary, in the early 1980s but the language itself is much older.

Auslan has evolved from the sign languages brought to Australia during the nineteenth century from Britain and Ireland. Its grammar and vocabulary is different from English. It is not the creation of any one person. It is a natural language that has developed over time and continues to change over time.

Auslan is the primary or preferred language of the majority of Deaf people who have been severely or profoundly deaf since birth or early childhood.

It is the native language (i.e., the language acquired from birth) of only a minority of Deaf signers. Deaf children who are born to Deaf parents who use Auslan appear to acquire Auslan in the same way as hearing children acquire spoken language from their parents and other family members.

However, for most adults in the Deaf community, Auslan is acquired either as a (possibly delayed) first language at some time during their school years, or in later life.

Thus an important difference between Deaf communities and other linguistic minorities is that, in most cases, the language is not passed on from parent to child, but often from child to child, or is learned by children from adults outside the family. Some Deaf people also learn Auslan as a late-acquired language in early adulthood.

Auslan was recognised by the Australian government as a “community language other than English” and the preferred language of the Deaf community in policy statements in 1987 and 1991.

Auslan exists in a complex linguistic environment and there are different forms of signing which are used in different social situations.

- Deaf Australia (2009).

Background

Australian Deaf People and Auslan

It is fair to surmise there always been deaf people in Australia. There are deaf Aboriginals and Torres Strait Islanders and Deaf non-Aboriginals (that we know of) began arriving in Australia with the Second Fleet.

People who are Deaf or hard of hearing can function like most people in everyday life and can participate in many community activities. Their deafness is often not recognised by others around them.

Yet deafness is more prevalent than many other more easily recognised disabilities. Access Economics, 2006 stated that 1 in 6 Australians have a hearing loss and this is projected to increase to 1 in 4 by 2050. Yet out of eight most prevalent disabilities, funding for deafness ranked last.

Deaf and hard of hearing people have varying degrees of hearing loss; it may be mild, moderate, severe or profound. Deafness may be present at birth or may be acquired due to various illnesses or ageing.

There is a general assumption that when a person with a hearing loss is fitted with assistive devices, such as hearing aids or cochlear implants, ‘normal’ hearing is restored. This is highly inaccurate. The manner and degree to which an individual with a hearing loss participates in a conversation, a meeting or other event varies according to their personal circumstances. This can include the degree of hearing loss, their age at the time of onset, the effectiveness of their aids generally and in that particular situation, family background, educational opportunities and achievements, social experiences and communication strategies and supports.

Communication strategies that Deaf and hard of hearing people use include, as well as hearing devices that amplify sound, lip-reading, sign language and other supports such as live captioning.

Some of these strategies require extensive training over the years to develop competency, and even with competency they still face challenges every day because many situations are not accommodating to their needs. This is often because information is not readily available in an accessible format (i.e., not in a visual format).

Approximately 16,500 Deaf Australians use sign language every day (Johnston, 1998) as their primary or preferred language. There seems to be a commonly held misconception that Deaf people use sign language because they are too lazy to learn to speak English. This is highly inaccurate. The ability to speak and fluency in English is usually very difficult for people deaf from birth or early childhood, requires intensive long term training and, depending on the supports available to them, many do not achieve it. For these people English is usually a second language, and many never become fluent in English even if they develop good speech, because they did not have sufficient access to English during the critical early language learning years. Deaf people use Auslan because they need it in at least some situations. Even for those who have fluent English and good speech there are situations where only Auslan enables them to participate in a meaningful way.

The Australian Government recognised the Deaf community as a language group in 1991.

It is now increasingly recognised that signing deaf people constitute a group like any other non-English speaking language group in Australia, with a distinct sub-culture recognised by shared history, social life and sense of identity, united and symbolised by fluency in Auslan, the principal means of communication within the Deaf Community (Dawkins, 1991).

While this recognition is helpful, it is not enough to ensure that Deaf people are able to realise their linguistic human rights – i.e. the right to use Auslan.

Although Deaf people are in many ways like a non-English speaking language group, there are important differences. When migrants arrive in Australia, their first language is the language of their home country. Over the years, they acquire enough skills and knowledge in English to be able to communicate with other people using English and may begin to drop their native language and speak English with mainstream Australia.

Deaf people, on the other hand, are generally Australian born, and Auslan will remain the most accessible and effective language for them and therefore their main tool for communication, with the support of interpreters to enable them to access information and have meaningful conversations with non-Auslan users.

For further information, please see Deaf Australia’s Auslan Policy: .

English vs. Auslan

English is a ‘second’ language for most Deaf people who use Auslan (even when it is the first language they are exposed to). English is a spoken language that relies on various tones that Deaf people cannot hear or understand (often even with hearing aids/cochlear implants and extensive training).

Auslan is not a form of English. It is a separate language and has its own distinct lexicon, syntax and grammar just as other languages do. The morphology of Auslan is composed of five parameters: hand shape, orientation, location, movement and expression. Facial expression is as important to Auslan as tone of voice is to spoken languages. Without it, meaning would be ambiguous (Vicdeaf, 2011)

Most Deaf people are bilingual or trilingual, they can read and write and sometimes speak in English (to varying degrees of fluency) and converse in Auslan, just as others can speak two or more languages, but Auslan is their primary or preferred language because, being a visual language, it is the language that is fully accessible to them.

Auslan / English Interpreters

Auslan/English Interpreters are professionally trained in facilitating communication between users of English and users of Auslan.

Provision of Auslan/English interpreters in various legal settings is essential for Auslan users so they can actively participate. Proficiency in English varies greatly between individual Auslan users.

Interpreters are accredited through the National Accreditation Authority for Translators and Interpreters (NAATI) and are trained to work in a variety of settings. Additionally, accredited interpreters are bound by a Code of Ethics. Skill sets, experience and knowledge vary from interpreter to interpreter. Not all have the skills necessary for legal settings.

It is important that interpreters are selected appropriately, in accordance with their skills and knowledge of the subject/s and their ability to work with particular Deaf individuals. For legal settings, it is advisable for interpreters accredited at the Professional level to be engaged at all times.

Access to Justice

Deaf people often experience direct and indirect discrimination in various settings, e.g., employment, education, community, public events, and so on, and in both personal issues and public interest issues may access the justice system to redress these issues.

These experiences of discrimination can cause exclusion, social isolation and limited access to economic resources and can have a detrimental effect on Deaf people’s wellbeing and mental health that can be exacerbated when the cases are heard in the justice system at a later time. The delay in discrimination cases being dealt with in the justice system can be because the demands on disability legal services are beyond their resources and expertise.

The Australian Human Rights Commission and its state equivalents are the main contacts for discrimination complaints made by Deaf people. However, we believe that these complaints only represent a small fraction of the incidence of discrimination. Many Deaf people do not lodge complaints for a variety of reasons, including but not limited to:

• Not receiving information in Auslan about their rights (i.e. they do not understand their rights because the information is in English and not accessible to them;

• Complaint must be submitted in writing (English is their second language);

• Not understanding the system and the processes;

• Not having access to adequate and appropriate support to understand and to participate in the processes;

• Not having the necessary financial resources; many Deaf people are on low incomes due to the education system not meeting their needs and discrimination in employment;

• Not having a ‘fair-go’ in an adversarial system that pits them against much larger organisations, governments or businesses;

• Not having the confidence as the process can be daunting and complex.

When Deaf people do lodge complaints, respondents are often accompanied by lawyers while Deaf people are often unrepresented or unsupported, resulting in a significant power imbalance in conciliations. Due to AHRC timeframes many complainants are unable to source the support of community legal services because of lack of resources and expertise within these legal services.

Access to justice for matters of a personal nature such as divorce, financial or other civil matters is also a very difficult experience for many Deaf people. This is due mainly to two issues: the legal language and lack of access to communication support (Auslan interpreting and real time captioning).

The Australian Government funds Auslan interpreting for Deaf and hard of hearing people to access private health appointments (the National Auslan Interpreter Booking Services – or NABS, which provides interpreting free of charge for sign language users). A similarly funded service is needed for access to all stages of the justice system, and it needs to include real time captioning for hard of hearing people who do not use Auslan but nevertheless need communication support.

Deaf people, in general, have limited knowledge of legal language, processes and systems, due to the failure of the education system to meet their needs, and they need extensive support to access the justice system. The type of support they need is not readily available from disability discrimination agencies and other legal services and so they rely on other support services such as Deaf Societies’ case management programs. However, they too are under-resourced and ill equipped to provide the legal support required to achieve the person’s rights, in his or her own capacity (paragraph 24 of the UN Report).

In criminal cases, Deaf people are often not offered access to interpreters in the first instance. It is assumed that they need audio support and this can cause significant communication breakdown between the two parties. Awareness training can assist in providing information for court personnel but it can only go so far; a more rigorous system needs to be in place so that court personnel can immediately identify what communication needs a person has before conducting an interview (paragraph 27 and 28 of the UN Report).

In many cases, judges hold discretionary power to implement appropriate systems to accommodate individuals with certain communication needs. There is concern as to whether there is sufficient awareness about ‘qualified’ or ‘accredited’ communication supports in the justice system.

For example:

Section 30 of the Uniform Evidence Act (2008) (Victoria):

Interpreters – A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make adequate reply to, questions that may be put about the fact.

This section does not make it clear that interpreter/s should be professionally qualified interpreters (Convention 9.2(e)). This section needs to reflect that interpreters must be appropriately qualified or accredited in order to carry out this duty.

Section 31 of the Uniform Evidence Act (2008) (Victoria):

Deaf and mute witnesses –

1. A witness who cannot hear adequately may be questioned in any appropriate way.

2. A witness who cannot speak adequately may give evidence by any appropriate means.

3. The court may give direction concerning either or both of the following -

a. The way in which a witness may be questioned under subsection (1)

b. The means by which a witness may give evidence under subsection (2)

4. This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30.

Firstly, the language needs to be current. The word ‘mute’ refers to inability to speak. The current appropriate term is ‘speech impaired’. Like Deaf people, people with speech impairment have varying communication skills and they may have different approaches to allow them to communicate effectively.

Secondly, ‘may be questioned in any appropriate way’, is an ambiguous term that is wide open to interpretation and does not specify that the person’s communication needs must be taken into consideration.

Thirdly, use of the term ‘communication support’ needs to be considered as there are various types of alternative support. Services such as live-captioning and/or hearing loops can be provided (Convention 21(b)) (see below ‘Communication Support’).

Unmet needs

Deaf people, like everyone else, at some point in time will need to access the legal system for some reason. To assist them they may need to access a range of services, e.g., disability advocacy services, state based legal aid, or community legal services.

These services are generally under-resourced and do not have sufficient funds to cover the costs of interpreters, making it difficult for Deaf people to put forward civil cases such as disability discrimination often reported to the Australian Human Rights Commission or state based disability discrimination agencies.

Many of these cases managed by the Australian Human Rights Commission or state based disability discrimination agencies are settled through conciliation and often without an advocate. Should an advocate be present, it is the sole responsibility of the complainant to arrange this. Prior to and during the conciliation, the Commission and other agencies will endeavour to ensure communication access is provided. If the case fails to settle, it is referred to tribunal (if pursued) and the Commission and other agencies cannot provide further support. It becomes the sole responsibility of the complainant to pursue further action, when it is clear that discrimination has occurred. This creates further undue burden on many complainants in relation to the same discriminatory experiences.

Over 83% of deaf people attend mainstream education programs where they are often the sole deaf person in the class or the school (Power, 2002). They often face a lack of accessible information and rely extensively on a few individuals (e.g., support teacher, parents) to communicate with them rather than the ‘whole of school’ communication enjoyed by non-deaf students. As a result deaf children often underperform at school (Deaf Australia, 2013). This later leads to difficulties understanding the legal system and advocating for their own human rights as adults.

The support people that Deaf people have access to are usually not equipped to provide information and support on a broad range of issues and often can only advocate to a limited extent on the Deaf person’s behalf because it is difficult to have complex dialogues when communication capacity is limited.

There have been some instances where Deaf family members of a person (non-deaf) appearing before the court were denied access to Auslan interpreters This means that not only are the needs of the Deaf person denied, the needs of the hearing person for support from a family member (who is Deaf) are also denied by the court.

When a person participates in the legal system, the experience is usually overwhelming and most people need someone who can guide or support them through the process. If an interpreter is employed, in many situations these interpreters also act as an advocate, but this is outside the scope and responsibility of an interpreter. When sourcing an independent advocate who is not experienced in working with Deaf people, it can take 2-3 times longer for the advocate to understand the communication needs of a Deaf person.

Many Deaf people especially when leaving school, do not know their basic rights. They do not know how or when they can ask for an interpreter. They do not know they can access communication support. They do not know the court system provides support for people with disability. In many cases, they simply do not know how to ask for these essential communication supports.

Hence, there is a need for a clearer and more robust system to identify and provide communication support and provide appropriate advocates for all individuals entering the justice system.

Justice system for Aboriginals

Over 94% of Aboriginal prison inmates were found to have significant hearing loss. Many of them reported that their hearing loss had resulted in violent altercations with other prison inmates due to misunderstandings (Vanderpoll, 2012).

There is minimal awareness that hearing loss is common among Aboriginal adults. Usually, any difficulties in communication during criminal justice processes are ascribed solely to cultural or linguistic differences as opposed to hearing loss (Vanderpoll, 2012).

Cost of accessing civil justice

A significant number of Deaf people have a low to medium income, and tend to remain at the same level of employment for a long time. A small percentage of Deaf people are on above medium income. The remainder are on low to poverty level income.

Regardless of what income Deaf person have, access to civil justice for Deaf people is difficult because

o Interpreting costs are high and

o The need to source an advocate to explain in greater details the legal system and jargon, their responsibilities and their rights.

The latter is time consuming and requires an interpreter to accompany the advocate at all times, not to mention fees charged by lawyers.

Accessing interpreters in non-criminal cases is sporadic. Many legal firms will not provide interpreters and so will not offer their expertise, denying access to expert legal advice for Deaf / hard of hearing people. Some legal firms will provide interpreters, but then include the cost of interpreting in the bill to the Deaf person.

Many Deaf people find this cost excessive and cannot afford legal advocates or even simple legal support and therefore rely extensively with family members, friends or non-legal caseworkers to guide them through the processes.

As result, they become resigned to the inequities and do not pursue legal avenues to rectify discrimination they experience.

Jury duty

Currently in Australia Deaf people who use Auslan and need access to Auslan interpreters are automatically excluded from jury duty. The most common reason given is that the interpreter is seen as an ‘additional’ or ‘13th’member of the jury and the court does not allow an ‘additional’ person when the jury deliberates the case.

At the request of the NSW Law Reform Commission, Macquarie University conducted a study on whether Deaf person could serve on a jury as effectively as a non-Deaf person. The study used professional interpreters in a mock court environment using real cases. Preliminary findings have shown that the outcomes of mock cases are similar to the outcomes of real cases for both the Deaf and hearing jury members.

In a recent (2013) case in Queensland, a Deaf person lodged a discrimination complaint against the Queensland Government because she was excluded from jury duty because she is deaf. The Queensland Civil and Administrative Tribunal dismissed the complaint because of the ‘13th person’ in the jury.

In an even more recent case (January 2014) in Western Australia, a Deaf person succeeded in being accepted into the jury selection process and was accompanied by an Auslan interpreter at the court house. The Deaf person was not selected in the second random ballot in the process, so we do not know if she would have been permitted to actually serve on the jury had she made it through the random ballot process.

Case Study:

A deaf person in New Zealand successfully served on a jury covering a tax case. When he was selected for the jury, his fellow jurors made him foreman (National Equal Opportunity Network, 2006). This was before the New Zealand Sign Language Act (2006) was passed.

Section 7 of the New Zealand Sign Language Act (2006), gives the right for a person whose first or preferred language is New Zealand Sign Language (NZSL) in legal proceedings.

Section 4 of the New Zealand Sign Language Act interpret that legal proceedings means –

a) Proceedings before any court and tribunal named in the Schedule*; and

b) Proceeding before any coroner; and

c) Proceedings to inquire into and report on any matter of particular interest to the Deaf community before:

i) A commission of inquiry under the Commission of Inquiry Act 1908; or

ii) A tribunal or other body having any of the powers of a commission of inquiry under any other enactments; or

iii) An inquiry to which Section 6 of the Inquiries Act 2913 applies

*The schedule refers to courts and tribunals (including jury duty).

After legal challenges and inquiries in the UK, Australia and Ireland, it has been established that:

• Deaf people have the capacity to make decisions as jurors; and

• Deaf people can sufficiently comprehend courtroom discourse and jury deliberations through a sign language interpreter.

(Napier, 2013)

In the same article, it was reported that lawyers believed that the victim and defendant’s rights when in the court override the Deaf person’s right to serve on the jury. There are cases where Deaf persons are involved in trials as victim or defendant. The question then arises whether it would be appropriate to consider whether having no Deaf persons on the jury would influence the outcome of the trial.

This inconsistency does raise the question of whether the spirit of ‘on equal basis as others’ is being pursued.

The National Disability Strategy (the Strategy) allows for people with disability to have ‘access to justice’, but does not specify whether a person with a disability can ‘serve as a member of the jury’ (Question 20 of IP44) on an equal basis as others and be accompanied by one or more of the communication supports, as outlined in appendix 1.

These communication supports need to be incorporated in legislation to enable Deaf and hard of hearing people to access the services they need.

Deaf Australia’s Response to Specific Questions:

This submission from Deaf Australia is guided by the United Nations’ Convention on the Rights of Persons with Disabilities (the Convention). Our recommendation reflects a specific article of the Convention on freedom of expression and opinion, and access to information (Article 21), which states:

21(b) ‘Accepting and facilitating the use of sign language … in official interactions’

21 (e) ‘Recognising and promoting the use of sign languages’

There are several references to sign languages in the Convention; these are:

• Article 2 (Definition);

• Article 9.2(e) (Accessibility)

• Article 21(b, e) (Freedom of expression and opinion, and access to information)

• Article 24.3(b) & 24.4 (Education)

• Article 30.4 (Participation in cultural life, recreation, leisure and sports)

For the purpose of this submission, Deaf Australia refers to Article 13 of the Convention (Access to Justice) that states:

United Nations Convention on the Rights of Persons with Disabilities

Question 1 of IP 44 asks what impact does the Convention have in Australia on a) provision for supported or substitute decision making arrangements, and b) the recognition of people with disability before the law and their ability to exercise legal capacity.

Creating a legal instrument recognising Deaf persons’ legal right to use Auslan as a primary or preferred language, will ensure the following articles of the United Nations Convention on the Rights of Persons with Disabilities will be achieved for Deaf people:

1. Definition (Article 2)

Auslan will be legally recognised as the signed language used by the Australian Deaf community and the primary or preferred language and communication method of these people.

2. General principles (Article 3)

Deaf people will be respected for inherent dignity, individual autonomy, including freedom to make one’s own choices; full and effective participation and inclusion in society; respect for difference and acceptance of persons’ with disabilities as part of human diversity and humanity; accessibility; respecting for the right of children with disabilities to preserve their identities when the use of Auslan is recognised as a legal right.

3. General obligations (Article 4)

In order to achieve full realisation of all human rights and fundamental freedoms Deaf people need first to have the legal right to use the language that works for them – Auslan.

4. Equality and non-discrimination (Article 5)

For Deaf people to be equal before and under the law and be entitled without discrimination to the equal protection and equal benefit of the law, they need to have the right to use Auslan.

5. Accessibility (Article 9)

In order to live independently and participate in all aspects of life, Deaf people need to have the right to use Auslan.

6. Right to life (Article 10)

For Deaf people to have effective enjoyment of life, on an equal basis with others, they need to have the right to use Auslan.

7. Equal recognition before the law (Article 12)

For Deaf persons to have the right to recognition everywhere as persons before the law, to enjoy legal capacity on an equal basis with others in all aspects of life, to have access to the support they need in exercising their legal capacity, they need to have the right to use Auslan.

8. Access to justice (Article 13)

In order to have effective access to justice on an equal basis as others, to participate direct and indirect, including as witnesses, in all legal proceedings, Deaf people must have the right to use Auslan.

9. Liberty and security of person (Article 14)

To ensure Deaf people enjoy the right to liberty and security on an equal basis with others, they must have the right to use Auslan.

10. Protecting the integrity of the person (Article 17)

To ensure respect for Deaf persons’ physical and mental integrity on an equal basis with others, they must have the right to use Auslan.

11. Living independently and being included in the community (Article 19)

In order for Deaf persons to live in the community, with choices equal to others, to have full enjoyment and full inclusion and participation in the community, they must have the right to use Auslan.

12. Freedom of expression, opinion, and access to information (Article 21)

To ensure that Deaf persons can exercise their right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis as others through all forms of communication of their choice, they must have the right to use Auslan.

13. Education (Article 24)

To recognise the right of Deaf persons to education without discrimination and on an equal basis with others, to facilitate the learning of sign language and promotion of the linguistic identity of the Deaf community, to employ teachers who are qualified in sign language, Deaf people must have the right to use Auslan.

14. Work and employment (Article 27)

To have the right to work, on equal basis as others, Deaf people must have the right to use Auslan.

15. Participation in political and public life (Article 29)

To ensure that Deaf persons can effectively and fully participate in political and public life on an equal basis with others, they must have the right to use Auslan.

16. Participation in cultural life, recreation, leisure and sport (Article 30)

To enable Deaf persons to take part, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign language and Deaf culture, they must have the right to use Auslan.

Essentially, the fundamental human right that underpins all other human rights for Deaf people is the right to use sign language (Auslan in Australia). Nowhere in Australian law is this right to use Auslan enshrined. A legal instrument needs to be created to make this right to use Auslan clear.

The right to use Auslan also applies to citizenship rights, public service and board participation of the IP44. It will enable Deaf people who use Auslan as a primary or preferred language to participate, on an equal basis as others before the law:

- To exercise their legal capacity (question 18);

- To holding public office (question 19);

- To serve on a jury or be eligible for jury service (question 21); and

- To an equal recognition before the law and capacity affecting people with disability who are (d) from culturally and linguistically diverse backgrounds (question 40).

Failure to create a legal instrument recognising Deaf people’s right to use Auslan as a primary or preferred language will mean that Deaf people will have to continue to:

• Lodge complaints through the Australian Human Rights Commission to access information and events in Auslan;

• Continue advocating for equal opportunities and participation in community activities currently enjoyed by non-Deaf people;

• Feel their right to dignity is not achieved;

• Feel that their right to respect, equality and freedom of expression is ignored;

• Not achieve their right to independence; and

• Feel their right to respect for their cultural identity is not respected.

National Disability Strategy 2010-2020

Question 2 of the IP 44 asks what changes should be made to the National Disability Strategy 2010-2020 to ensure equal recognition of people with disability before the law and their ability to exercise legal capacity.

When the Australian Government creates a legal instrument recognising Deaf people’s legal right to use Auslan (Australian Sign Language) as a primary or preferred language, it will more readily enable Deaf people who use Auslan to achieve, on an equal basis with others, the following policies of the National Disability Strategy (NDS):

• Improve accessibility and inclusion of every member of the community, including Deaf persons using Auslan (policy direction 2 of Inclusive and accessible communities);

• Communication (including Auslan) and information systems that are accessible, (policy direction 5 of inclusive and accessible communities);

• Increase awareness and acceptance of the rights of people with disability, including Deaf person’s right to use Auslan, (policy direction 1 of Rights protection, justice and legislation);

• Removing societal barriers preventing people with disability from participating as equal citizen, (policy direction 2 of Rights protection, justice and legislation);

• Deaf persons access to justice, (policy direction 3 of Rights and protection, justice and legislation);

• Increase access to employment opportunities, (Policy direction 1 of Economic Security);

• Universal personal and community support are available, (policy direction 3 of Personal and community support);

• Strengthen the capability of all education providers to provide high quality education programs (including provision of Auslan in the education system), (policy direction 1 of Learning and skills) (please note that using Auslan in education does not remove the need for the Deaf person to learn English; rather, Auslan provides a language that is fully accessible for Deaf people and can be used both as a language of education and as a means for teaching English to the Deaf person) ;

• Ensuring that government reforms and initiatives are responsive to the needs of people with disability, (policy direction 3 of Learning and skills); and

• Factors fundamental to wellbeing and health status such as choice and control, social participation and relationship, to be supported in government policy and program design, (policy direction 4 of Health and wellbeing).

Without an instrument for the legal right for Deaf people to use Auslan, the policy directions outlined in the National Disabilities Strategy will be much more difficult for Deaf people to achieve and therefore, the Australian Government will fail to ensure that all Australians including Deaf people are on an equal basis.

Concluding observations on the initial report of Australia, adopted by the Committee at the tenth session, 2 – 13 September 2013 (the UN Report).

Deaf Australia also is of the view that creating a legal instrument recognising Deaf people’s right to use Auslan as a primary or preferred language will respond to issues raised by the UN Report. These issues are:

• Paragraph 15 (Strengthening anti-discrimination laws to address intersectional discrimination and to guarantee protection from discrimination on the grounds of disability).

• Paragraph 22 (disability needs are to be factored into disaster response measures)

• Paragraph 23 (to consult with people with disability to establish nationally consistent emergency management standards)

• Paragraph 24 (equal recognition before the law and legal capacity for persons with disabilities)

• Paragraph 25 (take immediate steps to replace substitute decision making with supported decision making which respect for a person’s autonomy).

• Paragraph 26 (to provide training on recognition of legal capacity of persons with disabilities).

• Paragraph 27 (ensuring that access to sign language interpreters or use of augmentative and alternative modes of communication is supported).

• Paragraph 30 (ensuring all persons with disabilities who have been accused of crimes are provided with required support and accommodation to facilitate their effective participation).

• Paragraph 32b (establishing mandatory guidelines and practice for persons with disabilities in the criminal justice system to be provided with appropriate support and accommodation (including Aboriginals and Torres Strait Islanders).

• Paragraph 43 (Providing all information in accessible formats and effectively promote and facilitate use of Australian Sign Language as Australia’s official sign language.

• Paragraph 44 (recognising Australian Sign Language as one of the national languages of Australia).

In addition to our Recommendation, it would also be necessary to amend various laws (eg Victoria’s Evidence Act (2008) and the Commonwealth’s Disability Discrimination Act (1992)) to recognise Australian Sign Language as a right and enable the use of appropriately qualified interpreters and other communication supports (see Appendix 1).

This would resolve the following questions of IP44:

• Question 4 (Uniform approach to legal capacity)

By ensuring that interpreters are appropriately qualified to perform in any legal proceedings. This should include provision of training and implementing a national registry of qualified interpreters.

• Question 5 (the roles of families, carers and supporters).

Families of deaf children are not provided with equal opportunities to access and learn Auslan. This negates the deaf child’s right to acquire language at the earliest stage possible. The families, carers and supporters are often misinformed about Auslan and its potential which leads to the child not being on an equal basis with others (Deaf Australia would like to refer to Article 28 of the UN Convention on the Rights of Child – which states that all children have the right to education).

Deaf family members of a non-Deaf persons before the courts are often not given access to interpreters or other communication support.

• Question 6 (Anti-Discrimination law)

Deaf persons’ right to use Auslan needs to be included in the Commonwealth Disability Discrimination Act.

The current interpretation of ‘reasonable accommodation’ is left open to interpretation and does not necessarily lead to Auslan users having the right to use Auslan, e.g. Deaf people frequently have to argue strenuously for their right to have an Auslan interpreter rather than a hearing assistive device or a note taker in education environments.

• Question 23-25 (Access to justice, evidence and federal offences).

Deaf people are allowed to register to vote and participate in the election processes and may receive jury summons, but the current legislation prevents them from serving on a jury, mainly because of the presence of an interpreter (‘13th person’).

In addition to our recommendation, it is necessary to remove any restrictions preventing Deaf people using Auslan as a primary or preferred communication method and allowing them to participate ‘on an equal basis with others’.

In addition to schemes currently provided by Commonwealth, State or Territory governments, measures must be introduced to address unmet communication needs when Deaf people need to use private entities (e.g., lawyers/advocates) that act to represent them in justice processes (question 19 of IP44).

Currently, Auslan interpreting is supported through various government schemes:

• National Relay Service (introduction of Video Relay Service in July 2013);

• National Auslan Booking Services (for medical appointments);

• Employment Assistance Fund;

• National Authority Accreditation for Translators and Interpreters;

• Various state government languages support, e.g. Victorian Interpreting and Translators Service (VITS);

• National Disability Insurance Scheme.

These supports allow Deaf people who use Auslan to access some services and to feel that their rights, dignity and individual autonomy can be achieved sometimes. Without these services, Deaf people who rely on Auslan will not be able to participate or obtain information that will allow them to succeed. However, this type of service needs to be available for more areas of life, especially in the area of access to justice.

Appendix 1:

Communication Supports

Access to justice is an important part of the lives of many people, including those who have various degrees of deafness.

Specific provisions are required to ensure Deaf and hard of hearing people are able to access justice and participate ‘on an equal basis with others’.

What are some examples of barriers experienced by Deaf or hard of hearing people?

• When qualified sign language interpreters are not employed, Deaf participants who require such support are automatically excluded by the absence of this communication access;

• When legal services are unable to understand their communication needs, Deaf participants struggle to obtain the necessary information so that they are fully informed;

In general terms, there are essentially two groups of people who have different communication needs and both groups should have their needs accommodated at all times. This is a critical factor to the success of social inclusion and achievement of inherent dignity.

Auslan Users

People who communicate using Auslan (Australian Sign Language), the recognised language of the Australian Deaf Community, need Auslan interpreters to facilitate the translation of English to Auslan and vice versa.

Assistive Hearing Device Users

There are significant numbers of people in the community who have a hearing loss but do not use Auslan. They may or may not wear assistive hearing devices or have cochlear implants. These people may rely on hearing loops and/or captioning to participate in proceedings.

Both groups of people with hearing loss have strong visual needs. Thus there is a need to make information available in highly visual formats (as articulated in article 9 and 21 of the Convention).

Deaf and hard of hearing people, due to their hearing loss, may require one or more services to enable them to fully participate in the proceedings:

• Auslan/English Interpreter;

• Induction loop (or Hearing Loop); and

• Captioning.

Auslan/English Interpreter

Auslan/English Interpreters are professionally trained in facilitating communication between English and Auslan.

Provision of Auslan/English interpreters in various legal settings is essential for Auslan users so they can actively participate. Many Auslan users may not possess proficiency in English and proficiency varies greatly between individuals.

Interpreters are accredited through the National Accreditation Authority for Translators and Interpreters (NAATI) and are trained to work in a variety of settings. Additionally, accredited interpreters are bound by a Code of Ethics. Skill sets, experience and knowledge vary from interpreter to interpreter. Not all have the skills necessary for legal settings.

It is important that interpreters are selected appropriately, in accordance with their skills and knowledge of the subject/s. It is advised for legal settings, interpreters accredited at the Professional level are engaged at all times.

Induction Loop (or Hearing Loop)

An induction loop (often referred to as a hearing loop) is an assistive listening device that enables hearing aid users to receive information directly to their hearing device and minimise background noise.

Some venues may have a pre‐installed induction loop in some facilities. Pre‐installed loops are complementary to the use of public address systems and do not incur additional costs. If the venue does not have a pre‐installed loop, it is recommended to source an external provider to temporarily install a loop for the duration of the proceedings. There will be a cost for installation of a temporary loop.

There are two types of induction loops – personal loops and loops that are installed for a group and built into a facility.

Personal Loop

A personal loop device can make a difference for an individual, where a small microphone, using FM transmission, can be used to deliver the sound directly to the hearing aid user.

Induction Loop

An induction loop works much the same way as a radio receiver for a group of individuals wearing assistive devices in an assigned space.

It is important to note that not every hearing aid is equipped with a tele-coil system that enables the person to use the loop system effectively.

Captioning

Captioning benefits everyone, including those who have English as their second language.

Coincidently, captioning is common practice within the justice system and is employed in the parliament – i.e., Hansard. The only difference between Hansard and the captioning used by a Deaf or hard of hearing person is that for the Deaf or hard of hearing person the captioning is shown ‘live’, i.e. as it is produced.

Captioning providers employ a captioner who listens to the spoken word presentation and types, or uses voice recognition, to create captions. Some caption providers use high‐speed stenographers, who use a shorthand machine and special software that translates shorthand codes into written English. Others employ voice captioners who use software like Dragon Naturally Speaking and then “re‐speak” the words of the presenter. In each case, the words are then projected onto a screen.

The captioning technology platforms and captioners’ skillsets can vary between providers. For example, good stenographers typically type at upward of 220 words per minute and at an accuracy rate of at least 98%.

Depending on the technology and captioning technique used, the time for the live captions to appear on screen will vary between 2 and 10 seconds from the time the speaker says the words.

Remote captioning differs only in that the captioner is situated in another location. This could be another city or even a different country. Remote captioning requires that the live audio from the venue must be sent live to the remote captioner. The captions are then transmitted back to the venue via an internet connection.

References:

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Access Economics (2006): Listen Hear! The economic impact and cost of hearing loss in Australia

Australian Government (2011): National Disability Strategy 2010- 2020

Dawkins, J (1991): Australia’s Language: the Australian Language and Literacy Policy. Australian Government Printing Service: Canberra.

Deaf Australia (2009): What is Auslan?, sourced from website (, 6 January 2014.

Deaf Australia (2010): Auslan Policy, sourced from Website: .au/info/policy_auslan.php, 10 December 2013.

Deaf Australia (2013): Early Intervention & Education for Deaf and Hard of Hearing, Grant Thornton, Melbourne.

Johnston, T (1998): Signs of Australia: A new dictionary of Auslan (the sign language of the Australian deaf community), North Rocks: North Rocks Press.

Napier, J (2013): Legal Interpreting, Deaf people and jury service – a happy union?, Association of Sign Language Interpreters, United Kingdom.

National Equal Opportunity Network (2006): The Jury’s In, sourced from Website: .nz/newsarchive/thejuryisin/, 6 January 2014.

New Zealand Government (2006): New Zealand Sign Language Act 2006.

Power, Des and Hyde Merv (2002): The Characteristics and Extent of Participation of Deaf and Hard of Hearing Students in Regular Classes in Australian Schools, Journal of Deaf Studies and Deaf Education, Fall 2002, 7:302-311.

United Nations (1989): Convention on the Rights of the Child

United Nations (2006): Convention on the Rights of Persons with Disabilities

United Nations (2013) Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2-13 September 2013).

Vanderpoll, Troy and Howard, Damien, (2013): Massive Prevalence of hearing loss among Aboriginal inmates in the Northern Territory, Indigenous Law Bulletin, January/ February 2013, Volume 7, Issue 28, p 3 – 7.

Vicdeaf (2011): Sign Language (Auslan) Interpreting vs. Real Time Captioning – What is the difference?’ sourced from website: , 6 January 2014.

Victorian Government (2009): Victorian Deaf Education Review

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States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through use of the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

1. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

(Our emphasis):

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