HREOC
GPO Box 5218
Sydney NSW 2001
Dear Sirs,
The Disability Council of NSW is strongly of the view that a public inquiry into the area of people with disabilities and employment is warranted.
At present few reliable statistics have been gathered on related issues however Council is aware through its links across the disability sector and the anecdotal evidence of its members and staff that equity is far from being served.
Attached please find three personal commentaries by members and staff that speak to different issues.
Council is of the view that a public inquiry would effectively bring current inequities into a forum for public debate and make informed recommendations to address these. Areas that might be addressed include:
· current practice that equates with both direct and indirect discrimination (see reflections by Mr Harrison);
· developing innovative means to promote employment participation and opportunity including means to address existing disincentives to employment;
· mapping the interrelationship of physical and policy directed barriers and determining responsibilities to remove these.
Yours faithfully,
Rob Lawson
Acting Executive Officer.
By Matt Laffan
Creating opportunities for potential employees with disabilities: A personal experience
Background:
I was born in 1970 with a rare genetic disorder, diastrophic dysplasia that has affected my mobility in a number of ways. I have short limbs; I have acute scoliosis and kyphosis resulting in paraplegia and my reliance upon an electric wheelchair for my mobility; my knuckles are fused so that I am unable to clench a fist and therefore opening jars and bottles is impossible.
My parents raised me in a fashion that recognised these obvious difficulties but which did not overstate them. They set about accentuating the positive by ensuring my life experience was robust and as normal as possible. My education from the very beginning was mainstream. I attended the local pre-school, and from there went onto the local Catholic Primary School. I attended the local Catholic High School for year's seven to ten, before moving to the local State High School for my Higher School Certificate years. Thus I enjoyed the thrills and spills of an education experienced by most able-bodied children, learning scholastically and socially about the ways of the world.
When I completed High School in 1988 I moved to Sydney and enrolled in the Arts/Law degree as an undergraduate at the University of Sydney. I was also accepted into St John's College as a resident on the University campus.
Between 1989 and 1994 I completed my studies and graduated from the university with a Bachelor of Arts and Bachelor of Laws and a practicing certificate from The College of Law.
The Supreme Court of New South Wales admitted me to practice as a legal practitioner in December 1994. After a complete school and tertiary education I was ready for work in my chosen field: As a lawyer.
Employment History:
It never occurred to me that I would not work. Even as a kid growing up it was my goal to get a job that was interesting and which allowed me to exercise my abilities. Like all young people I guess a few choices loomed as potential areas of interest. For a time I considered a career in the editorial process of film and television, mainly in the position of a vision mixer, so much so that I completed a film and television course one Christmas holiday in Sydney. However, despite the enjoyment that the course proffered I quickly felt that my talents would be best used elsewhere.
Fortunately for me I had an inkling at a rather young age that the law would be my calling and it so happened that I found my first school job in a law firm when I was roughly 16 years of age.
My first job was with a young, dynamic husband and wife law firm in Coffs Harbour, Watt and McKinnon. My duties simply involved me doing the time costing for the firm, no law was involved. But having the opportunity to be in the midst of two robust professionals in pursuit of their legal careers I was not only made to feel as if I was a part of the team, I was given the extra incentive to believe that I too could work as a lawyer once I had attained my legal qualifications.
These two people knew me through dear family friends in Coffs Harbour. Therefore the first door to employment through which I walked was opened because of the people who knew me behind it.
The second job I had in my progressive stages through legal experience was at the Sydney law firm Freehill Hollingdale and Page. I worked as a paralegal with this powerhouse of commercial lawyers from 1990 to 1992. I was fortunate enough to secure this position while I was a student and residing at St John's College. My opportunity arose directly from being seated next to one of the firm's up and coming stars, Janet Albrechstan, at a law dinner held at St John's College one evening. I had the good fortune to chat with Ms Albrechstan over the course of the dinner and she informed me that the sooner I made myself known to other lawyers in Sydney the better for my career. So she quickly took it upon herself to arrange a meeting for me the next week with the managing partner responsible for employment at the firm.
After that meeting I began work within the week. It was a position that gave me employment one day a week during term and a few days more each week during the holidays. It introduced me to the commercial reality of the private practice law firm that is hard working, laborious and unrelenting. In many ways I was not cut out for the future of the place, such commercial firms exact their pound of flesh for the dollar and quite frankly I had little flesh to give in terms of being able to put in twelve or fourteen hour days during hectic litigation periods. However, having once again been introduced to the managing partner of the firm through the sheer good fortune of making an acquaintance out of the connection that mattered I was given the opportunity to work. It was yet another door opened easily via the assistance of those who held the handle on the other side of it.
Then I found myself having to acquire a summer clerk position for the 1992-93 vacation break to better my employment opportunities come the end of my degree. Having already realised the valuable reality that private practice was not necessarily for me I thought that a position at the Commonwealth Public Defenders might afford me an opportunity to better my knowledge and experience in the public sector. I turned to a family friend, Sean Flood senior, for advice as he worked there.
I met Mr Flood at the Public Defenders and after a warm conversation during which time he reminisced about the days he knew my mum at University, he told me straight that the Public Defenders would not be able to offer me a meaningful opportunity. However, he said that the New South Wales Public Prosecutors would be a likely avenue and he asked me to follow him down the hall to meet one of his colleagues, Robert Kelleman, now known as Robert Kelleman SC Judge of the District Court of New South Wales.
Kelleman, after listening to Flood's enthusiastic support for my campaign to secure a clerkship put a phone call through to a friend of his at the Office of the Director of Public Prosecutions, Reg Blanch QC, now Chief Judge of the District Court of New South Wales. Blanch in turn said he would welcome interviewing me in his chambers in the ODPP. So within one meeting and two weeks I found myself before the Director, being given an opportunity of a lifetime to do my clerkship at the DPP.
Again without having had the immediate contact of a family friend that door would never have opened.
My association with the ODPP continued up until the time I began the College of Law in June 1994, at which time I had to resign as I took up fulltime studies to acquire my practicing certificate.
When I was admitted to practice law there were no opportunities at the ODPP available and I found myself in a rather desperate position of having completed the rigors of university without being able to get a job. Despite a long list of job applications being pursued a river of correspondence washed up against my door with the constant theme "thank you for your application, however, we regret to inform you that we have no position for you" resonating throughout.
Fortunately for me a great mate from St John's College, Peter Strain, had at that stage a small mentions practice operating in the city. He was a barrister at law and being a few years my senior had well established an understanding as to what was required to get ahead in the game. The mentions practice that he had operating served country and suburban solicitors well. Whenever they required simple matters to be dealt with in any of the city courts, be it the Family Law Courts, or any of the civil or criminal jurisdictions, or Liquor Licensing or Dust Diseases Court the firms could engage the mentions practice to carry out the responsibilities on their behalf. Our little firm was called Mister Mentions and apart from being made the Business Manager I also had the responsibility for appearing in any number of the jurisdictions to carry out our instructions. This afforded me with a terrific experience as I learned to receive an ear bashing from intolerant magistrates and judges, whilst honing my skills as a lawyer keen to do appearance work and make myself known and heard in court.
I worked for Mr Strain's organization for six months and it was a great time for me. Although it was not the most rewarding legal career in the world it at least gave me the chance to work whilst awaiting the opportunity for something better, and it exposed me to my legal colleagues and the way courts run from a very practical angle. It was very much the answer to what could have been a detrimental problem had I been left unemployed during that period. And again it was because of the fact that I knew the man who had the keys to the employment opportunity that I was able to find myself in the happy position of taking up a job in the law.
Then in June of 1995 I received a phone call from the ODPP to say they had a position for a temporary lawyer that needed to be filled in and with Mr Strain's blessings I accepted it with both hands.
Soon thereafter positions were advertised for fulltime lawyers at the ODPP and I began my career as a fully-fledged lawyer with the ODPP. I have been with them ever since.
In 2004 I received a promotion and I am now working as a permanent level 2 lawyer, assigned to the non trial litigation group. I appear regularly in the Supreme Court and District Court of New South Wales. I have the conduct of the Supreme Court bails list as well as the severity and all grounds appeals in the District Court, and sentence proceedings.
Current employment:
I have now been working for the ODPP for nine years, during which time I have progressed from a Level 1 lawyer to a position as a Level 2 lawyer, for which I received permanent status in the last six months.
Whilst working at the ODPP I have worked in a number of capacities, in the Court of Criminal Appeal Unit, in a trial group and in the Non Trial Litigation Unit, to which I have been attached for the longest period of time. On occasions I am the Acting Manger of this group.
My position as a fulltime lawyer with the ODPP has been complemented by my honouray position as a member of the New South Wales Rugby Judiciary that I have had since 1996. I am also a regular visitor to the UTS Law faculty as I sit in as an acting magistrate for their legal advocacy courses.
The challenges for employees with disabilities
Employees and employers require much the same thing: Confidence and support in the workplace. As an employee with a disability I found at the early stages of my employment that I was willing to make sacrifices in order to ensure my position was secure. This included my having purchased work stations out of my own pocket so that my work environment was adaptable to my needs, so concerned was I that I not been to cause my employer undue concern. In hindsight this was unnecessary, especially since I was working for the public service, however, it is indicative of the situation in which a great many employees find themselves when they have a disability. We are so grateful to have an opportunity to gain fulltime employment that we are determined to prove to our colleagues and employers that we are better equipped than most to meet the challenges before us.
Once I was becoming an established member of the ODPP I grew both in confidence and determination. Thus when it became apparent that a lack of wheelchair access into the Banco Court in the Supreme Court of New South Wales was going to prevent me from satisfactorily carrying out all my duties with the ODPP I took up the issue with the Chief Judge of the Supreme Court of the day, the Honourable Chief Judge Murray Gleeson, the current Chief Judge of the High Court of Australia. Within some six months of my direct dealings with Gleeson wheelchair access was provided to the court and the over all access issues connected with the Supreme Court were reviewed and corrected as required.
Thoughts on employment opportunities for lawyers with disabilities
Equality is the cornerstone of our legal system. It implies that those who require access to the law will have it and that the weak and strong will be treated as the same. A natural tension exists between the ideal and the reality as exemplified by the way in which prohibitive legal costs can cripple the battler in her plight against more wealthy adversaries. Our society nevertheless endeavours to maintain the means by which the principles of equality are met. However, as far as access and equality go there is much more to be done with respect to our colleagues who have disabilities. As a profession that champions the notion of natural justice we have an obligation to look to ourselves and ask what it is we are doing to meet our colleagues' needs.
It is no surprise that people with disabilities are attracted to the law as a career choice. People from minority groups and civil rights activists, whether from a racial or religious perspective, have always turned to the law as a means by which to break down the prejudices of society and create an opportunity for themselves as equals. In politics and law people have redefined gender, racial and religious lines by working in our profession and exercising their rights in a practical sense thus bringing about a social change from within for the benefit of the many.
Lawyers with disabilities are no different to these other agitators for change, enabling a shift in perceptions and expectations through having a participatory presence, except perhaps for the fact that the movement is just beginning and it requires a fresh determination from those outside of it to make it effective.
Newly qualified lawyers with disabilities are finding it very difficult to gain fulltime employment. The great achievement of having attained their degrees are muted by the fact that to take the next step to become a practicing lawyer and fully employed is continually frustrated by a reluctance of law firms to employ them. As intakes of fresh graduates are accepted by the big and small end of town those who have disabilities are left on the outside and their untapped potential is wasted.
It is for this reason that the Law Society of New South Wales is giving support to Employers Making A Difference (EMAD). EMAD is an organisation supported and led by employers who have reaped the benefits of employing people with a disability. They promote and support businesses that encourage people with a disability as employees, customers and suppliers. The Law Society and EMAD are combining in order to facilitate a shift in opportunity for lawyers with disabilities in the recruitment process. This will benefit the law firms who employ them as they gain highly skilled, determined and loyal recruits. The face of their firm will also reflect the face of society and be a far more appealing representation of what clients recognize as a professional team.
Professor Ron MacCullum, Dean of the Faculty of Law at the University of Sydney, knows more than anyone else what difficulties lawyers with disabilities face. MacCullum who is blind, has been involved in the law all his adult life. In a mindscape that relies upon tactile markings and the sounds and smells of the world around him his personal success in black letter law has a meaning all of its own. With a brilliant ability to recall, a powerful sense of what the law is about and an unrelenting conviction that hard work is his friend, he has risen to the top of his academic field on his own terms. He personifies the qualities that our profession admires.
As the Dean of Law MacCullum has the responsibility of ensuring that his faculty delivers the very best to its students, those with and without a disability.
'I think that there is a real challenge for universities to be accommodating for people with a disability. Universities have come along way, but I feel that universities need to keep up to the mark, particularly with blind and visually impaired students in regards to accessing material in a form that is accessible to the individual. We all need to do more work around this.'
An obvious segue to this is the employment of lawyers once their studies are completed and it is something of which he is keenly aware. 'Lawyers and law students with disabilities who manage to get a position in the workforce have often done so because of a mix of good luck, perseverance and a matter of having known someone through some nebulous association that has made the difference.' Thus the well worn adage that it is not what you know, but who you know is especially true for lawyers with disabilities seeking to break into the workforce.
MacCullum notes 'Blake, Dawson and Waldron sponsored my chair and they were very accommodating to me, but I was a well practiced lawyer.' In other words, he was well known, which of course is not unexpected when someone is offered a Chair at a university. Unfortunately it is this need to be known before being given the most fundamental opportunity to work that is the perplexing problem fresh graduates with disabilities face. All of us of course have suffered the tortuous wait as prospective employers have weighed up our academic record and personal references with others in response to a job advertisement. But for lawyers with a disability it seems they have the double jeopardy of having to prove they can do even more than just satisfy all the desired criteria in order to over come the hesitation that employers have to give them a start.
Recently a few law firms have become involved in Willing and Able Mentoring (WAM) a program designed to assist students with disabilities prepare for the workplace by providing a mentor to deliver first hand experience to students as they study.
Ruth Higgins, solicitor, and Carmel Harrington, HR Manager, at Gilbert and Tobin speak highly of the program. They mentored Joel, a deaf law student from UTS. As noted by Higgins, 'Law is a daunting profession irrespective of disability. So, I found Joel's focus and determination inspiring and thought it impressive that he would choose a career in law, which may be perceived as erecting barriers to people with a hearing loss'. Higgins noted that the WAM objective was to provide Joel with "a realistic impression of daily life in a firm, while keeping him engaged and excited about the field."
Equally Gilbert and Tobin learned the way in which Joel could play a vibrant contribution to the firm as a lawyer in his own right. Any preconceptions that Joel might have a limited role to play because of his disability were quickly allayed.
Tony Greenwood, solicitor, from Ebsworth and Ebsworth, another WAM participant, astutely recognizes the fact that 'one of the main challenges for students and new lawyers with a disability would be getting their foot in the door of a law firm and then proving 'ability' to a future employer. An employer may, rightly or wrongly, take their disability into consideration and they would have to prove (like any other applicant) that they are qualified and competent for the position.'
Greenwood's frank assessment is anecdotally a true representation of what is occurring in the recruitment process. A lawyer's disability is being considered as an impediment to that person being employed before they even reach the interview process. In other words the prospective employee's qualifications and competence is often secondary to the issue raised by the candidate's declaration that they have a disability.
Higgins rightly notes' the challenges facing each individual will vary with the nature of her disability, her attitude towards it and the receptiveness of the institutions she approaches."
It is this receptiveness mindset that needs to change, but it requires only a subtle shift. Higgins justifiably asserts:" I can't imagine that many people would have a problem with disability. Generically, the most important thing I can imagine is relaxed communication between the parties: even generous fears – for example, how best to make someone feel comfortable - may only serve to accentuate any discomfort. Both parties should be as open as possible as to how to attend to any relevant needs. Part of this may involve anticipating and pre-empting perceived difficulties: for example that individualized attention may detract from an ability to keep abreast of hectic periods in the office or urgent deadlines." And this is where the association between the participating law firm and EMAD will assist.
EMAD provides both employer and employee with the means by which to understand and communicate what their needs are beyond the normal hiring relationship. Special workplace needs are pinpointed and the fears that some employers might have as to infrastructure costs and liabilities are explained accurately. The difficult to ask questions are answered simply so that what might be perceived as being a risk is properly looked at as an investment.
Our profession prides itself as having created rights for individuals. We value loyalty and people who are able to offer something special to the mix. A firm which employs a lawyer with a disability who satisfies the criteria of the desired position, such as a candidate who has an industrial law background who happens to be in a wheelchair, or a taxation expert who is deaf, invests wisely in an employee who will often work harder and create more positive opportunities for the firm than other candidates drawn from the same pool. The fresh graduate who applies for a position has demonstrated an ability to cope with pressure and a natural acceptance of hard work by the very fact that she has completed her legal studies with good marks as a student with disabilities. The trick is for our profession to maturely appreciate these facts and acknowledge that thus far too few lawyers with disabilities are attaining fulltime work through no fault of their own.
The time has come for our society to embark upon a strategy that gives opportunities to lawyers with disabilities to realise their full professional potential. The strategy being adopted by the Law Society of New South Wales is to ask law firms who are keen to be a part of the shift in perceptions to register with EMAD and they will put them in contact with lawyers with disabilities who are seeking positions of employment. When this happens we as a society of lawyers will be able to boast that we are truly representative of the community at large of legal professionals.
My name is Kim Walker and I was born with an intellectual disability and grew up in an institution. I left when I was 20 years old after the release of the Richmond Report and lived in a hostel in Hamilton, near Newcastle with other intellectually disabled people. I worked in sheltered workshops for about 5 years before beginning to work as an advocate for people with an intellectual disability. Since then I have been on many committees, sit as a council member for the NSW Disability Council and do paid work for the Intellectual Disability Rights Service.
Comments on working in open employment.
To work in the open employment world a person with mild intellectual disability, or what is often referred to as low support needs, would need help: checking the newspaper for positions, having someone show them what is suitable to wear to an interview or to work, how to get to the workplace and some one to help them with a resume and application. The adds in the paper use very small print which can be difficult for a person with a disability to read.
Unfortunately people with low support needs often can't get any help with issues for work, because they are not considered 'disabled enough' to get support but are too disabled to be appropriate for unemployment programs. They are falling into a gap in the system.
Because of these issues, it is hard to believe that they would ever be able to get a job in open employment even if they were more than capable of doing the work.
Some employers might worry about employing a person with an intellectual disability. They might wonder if a person with an intellectual disability would be a good worker or if they would turn up on time. They might worry that it might cost them money to hire that person.
If you did have a job in open employment you might need ongoing support.
Some people with an intellectual disability may not know how to behave around people who do not have a disability. They might spend their whole life so far working with other intellectually disabled people, and living in a group home. Or they might be a bit scared or shy talking to people they are not used to. Not everyone with an intellectual disability want to tell people they have a disability so it can be difficult if you are having a problem with something. They don't want to be treated differently, but this doesn't mean they don't need any help. People are not encouraged to try to get a job in open employment and if they do have low support needs they may not receive any help at all.
Comments on working in existing Business Services.
Currently in business service jobs everyone is tested to see how fast they can do certain jobs; a person stands behind them and actually times them with a stop watch. This can be very scary for a person with an intellectual disability. If all your life you have been told you cannot do things well, you will be very nervous when you are tested, or even scared or panicky. After you are tested you will be paid based on how fast you can do that task. Some people get only $40 a fortnight for full time work. It is very wrong. Many people that work in business services only work because all there friends are there, or because their families need somewhere for them to go each day. Some people go because they want to feel useful. It's more about having some where to go where you fit in than about getting fairly paid. But if you are making things for some one that will make a profit you should be paid properly. By the time they have paid for their bus fair to work some intellectually disable people would be almost paying to go to work rather than being paid.
It is a fine line sometimes between someone who is being paid a ridiculously small amount of money [and they are doing tasks that someone should be paid for] and some one who if they don't work, would have to pay a service to give them activities....
Sometimes people with an intellectual disability may have some thing difficult going on in their life and if they are tested on a bad day then they will be paid even less.
Sometimes people with an intellectual disability don't understand how the processes work and don't have someone that will explain it to them carefully.
Some people with high support needs might never improve at doing certain tasks so will never go up in a workplace or be paid more. Ten years without promotion or thanks or decent pay.
Employment Difficulties: Personal anecdotes
Joe Harrison
My disabilities include several lung disorders and epilepsy. My principal difficulties in finding and maintaining employment relate to epilepsy though my lung disorders too have had negative consequences.
My first years post school were in supported employment (in the 1960s and early 70s). There I was assessed as having an intellectual disability due to the effect of antiepileptic medication. It demonstrated employer willingness to impose personal negative opinion. Such negative employer opinion has been elemental to my employment history. When applying for a permanent position in the public service the deputy director would not make a decision on whether or not he would employ me and went to the Director General to confirm it was OK. I can only assume he was worried about my disabilities.
During my time with the Commonwealth in the 1980s and early 90s I experienced several barriers to employment promotions. On one occasion at interview the internal member of the interview panel informed the others of my epilepsy. While his intention was to explain my possible minor absences it was not evident to his listeners. I did not get the promotion. The external representatives on the interview panel noted I'd done the best interview and recommended me for the position. However the internal member of the committee wrote a contrary recommendation which was supported by management. While I cannot be certain this experience made it difficult to raise my hopes of obtaining future promotions.
When applying for many positions I have been told my inability to drive precluded me from meeting the inherent requirements of the position. This was given as a reason for my unacceptability when applying for a job as a rehabilitation manager. I appealed and won the position and used cab vouchers across the city and when travelling in NSW. Since holding that position I have noted several advertisements in the Government Gazette requiring a driver's license when (in my opinion) driving was not part of the inherent requirements of the job. I could not complain to HREOC about these advertisements because I would not want the advertised jobs and as the DDA is complaints based there is no means to address the ongoing inequitable practice.
I was given 12 months probation first applied for permanency in the Public Service as it was assumed my lung condition and epilepsy would prevent me from remaining a viable employee. At the end of 12 moths I was advised I would be temporary for an additional 6 months as no-one had put through the paperwork to renew my status. Thus I was 18 moths as a temporary employee.
When with a private insurance firm I was employed for the period of Government subsidy. Thereafter I contracted Pleurisy and on return from hospital was dismissed. I am sceptical about the reasons for my dismissal which I was told was due to the need for cutbacks to maintain profits.
I can carry on with a tome of personal history of what I perceive to be discriminatory procedure. I hope the above is sufficient to convince the commission that such procedures need to be addressed. I believe a public inquiry, by putting such things on the public record, and eliciting opinion as to how to improve matters, would improve the lives of people with disabilities seeking or maintaining employment.
