Disability Rights Unit

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.