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Avery, Scott --- "Aboriginal and Torres Strait Islander people with disability: Falling through the cracks" [2020] PrecedentAULA 42; (2020) 159 Precedent 12

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE WITH DISABILITY

FALLING THROUGH THE CRACKS

By Dr Scott Avery

Whether they are accessing disability supports through the National Disability Insurance Scheme (NDIS), receiving healthcare, catching public transport, or just entering and getting around their houses, Aboriginal and Torres Strait Islander people with disability face significant barriers in their daily lives that diminish their rights.

Aboriginal and Torres Strait Islander people with disability constitute a marginalised group intersecting two larger marginalised populations, and therefore encounter structural inequality and discrimination that is both race- and disability-related. Despite the acuity and pervasiveness of the inequality that looms large over their lives, policy and programs have failed to capture the multi-dimensional nature of their experience. Indigenous and disability policies and programs that are designed to address one aspect of their marginalisation, not both, means that many Aboriginal and Torres Strait Islander people are effectively slipping through the cracks in the system.

MULTIFACETED INEQUALITY AND DISCRIMINATION

My research, entitled Culture is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability,^[1] collates data from the Australian Bureau Statistics (ABS) that compares social health and wellbeing outcomes for Aboriginal and Torres Strait Islander people with disability. The data showed that Aboriginal and Torres Strait Islander people with disability experience social inequality across a range of support systems. The social, health and wellbeing inequality that Aboriginal and Torres Strait Islander people with disability experience is greater compared with other population cohorts,^[2] including Aboriginal and Torres Strait Islander people without disability; and people with disability who are not Aboriginal or Torres Strait Islander. This reflects ‘intersectional inequality’^[3] that cannot be solely explained by structural discrimination that is either race or disability related, but involves exposure to multi-faceted discrimination that interacts to compound their marginalisation. Further, the pattern of the ‘intersectional inequality’ is pervasive across a range of social policy domains and support systems, including: accessible housing, disability supports and transport; access to justice, and exposure to threatened or actual violence; access to an inclusive education; attaining employment; and access to health and healthcare services.^[4]

In addition to pervasive social inequality, Culture is Inclusion captures the personal testimonies of Aboriginal and Torres Strait Islander people with disability to reveal a debilitating form of social isolation and exclusion which is not adequately captured and conveyed in the statistical indicators. As the indicators of social health and wellbeing outcomes reflect intersectional inequality, the forms of discrimination they encounter are intensely personal and also intersect racism and ableism. The nature and impact of ‘intersectional discrimination’ is illustrated by the testimony of an Aboriginal man with cognitive impairment. The presentation of his disability means that he is presumed by others to be intoxicated when he is out in public. As one example, he was confronted by security guards at a shopping centre who stopped him from coming in. This type of incident happened regularly during his daily routine when he was doing things such as trying to catch public transport or buy a meal, and had severely restricted his ability to enjoy life in a way that many others take for granted.

The experiences of inequality are accentuated in remote communities. Aboriginal and Torres Strait Islander people, particularly those living in remote and regional communities, often live in inaccessible housing and in physical environments unsuitable for people with disability, compounded by a lack of accessible transport servicing the communities where they live. Disability aids that are designed for use in urban areas are often unsuitable in remote locations, and can leave Aboriginal and Torres Strait Islander people with disability unsupported in their community when their equipment breaks down. This is observed in the rapid deterioration of wheelchairs that are designed for urban use, but are deployed in remote communities where roads or footpaths are not sealed.

A ‘MATRICULATION PATHWAY INTO PRISON’ – THE IMPACT OF DISABILITY IN THE CRIMINAL JUSTICE SYSTEM

The presence of such multi-faceted social inequality and discrimination across the life trajectory of an Aboriginal or Torres Strait Islander person with disability shows that ‘intersectional inequality’ is not about isolated incidents. Social inequality in one stage of a person’s life trajectory inevitably means that social inequality will be experienced in subsequent stages of their lives. This creates an accumulated impact over their lifetime that begins even before they are born. The legacy of undiagnosed or unsupported disability in early childhood years carries forward into the schooling years. Rather than having their learning needs assessed, Aboriginal and Torres Strait Islander children may have disabilities that are undiagnosed or supported, and instead face a punitive approach in their education and are stigmatised by what is colloquially referred to as ‘bad black kid syndrome’. This pattern of intersectional and structural discrimination in education is reflected in recently released data on the prevalence of hearing impairment among Aboriginal and Torres Strait Islander people. The data shows that 43 per cent of Aboriginal and Torres Strait Islander people have some hearing impairment, of which 80 per cent is undiagnosed or unreported; and, also, that the level of educational attainment of Aboriginal and Torres Strait Islander people with hearing impairment is half that of Aboriginal and Torres Strait Islander people who do not have a hearing impairment.^[5]

The inability to access an inclusive education is carried through to employment prospects; the employment rate of Aboriginal and Torres Strait Islander people with disability is at least half that of Aboriginal and Torres Strait Islander people who do not have a disability.^[6] The combination of unfulfilled educational and employment prospects places them in a situation in which they are more likely to come in contact with the police and, in turn, enter the prison system. This life trajectory points to disability being a factor that is not fully recognised in the over-incarceration of Aboriginal and Torres Strait Islander people. The ABS’s 2017 report Prisoners in Australia^[7] shows an incarceration rate for Aboriginal and Torres Strait lslander people at 2,434 prisoners per 100,000 of the Aboriginal and Torres Strait Islander population, which is 15 times the imprisonment rate for other Australians (160 prisoners per 100,000 of the non-Indigenous population). As data on disability is not reported, it is not possible to quantify the impact of disability upon the rate of imprisonment of Aboriginal and Torres Strait Islander people using the national data set. However, jurisdictional data from NSW on the health and wellbeing status of people in the juvenile justice system shows that the prevalence of complex disability and multi-faceted disadvantage is higher among Aboriginal and Torres Strait Islander young people compared with other young people. It paints a bleak picture of who ends up in juvenile detention (see Figure 1).

Figure 1: Profile of young people in the juvenile justice system: Selected indicators from the NSW 2015 Young People in Custody Health Survey^[8]

• 54% of young people in juvenile detention are Aboriginal or Torres Strait Islander.

• Of young Aboriginal people, 23.8% scored extremely low and 39.6% were borderline on the tests used to assess intellectual ability.

• 87% of young Aboriginal people met the threshold criteria for at least one psychological disorder, and 69% met the criteria for two or more.

• 25% of young people had a past head injury resulting in loss of consciousness (that is, they have been knocked out cold), with females more likely than males to have sustained a head injury (52.6% vs 22.5%).

• 15.9% of young Aboriginal men and 47.1% of young Aboriginal women reported difficulty in hearing.

• 68.2% of young people in juvenile detention reported experiencing at least one form of childhood abuse or neglect, with more than one-quarter (28.1%) experiencing some form of severe abuse or neglect.

This life trajectory analysis for Aboriginal and Torres Strait Islander people with disability reflects other research that has identified ‘a school to prison pipeline’ in Australia^[9] (and also among marginalised populations in the United States).^[10] While government policies such as the Closing the Gap Framework have stated objectives to improve educational and employment opportunities for Aboriginal and Torres Strait Islander people, the outcomes for Aboriginal and Torres Strait Islander people with disability are its antithesis: as opportunities for personal fulfilment during one stage are suppressed, the loss of opportunity diminishes the prospect of advancement in later life stages. Instead of a matriculation pathway into education, this pathway is better described as a ‘matriculation pathway into prison’.

FILLING THE GAPS IN SOCIAL POLICIES

The importance of a life trajectory approach to understanding the accumulated impact of social inequality is that it can also help to identify the pivotal points in the life sequence, which can be geared towards more positive outcomes through targeted intervention and supported programs. The current level of structural inequality is such that the opportunities for making positive changes are numerous. The transition into schooling from early childhood is a critical life transition where previously undiagnosed disability could be detected and supported through a culturally informed and disability inclusive learning plan that provides the foundation for ongoing learning. The impact of undiagnosed and unsupported disability should be eliminated as a factor in the level of educational outcomes before the education system defaults to a punitive approach. Based on a report from the NSW Ombudsman on the NSW Government’s OCHRE Strategy for Aboriginal Affairs, around one in every three Indigenous children with disability receives a long-term suspension from school.^[11]

Effecting a mind shift towards supporting disability rather than penalising it will require greater connectivity between Indigenous policies and disability policies. From the Indigenous policy perspective, the Closing the Gap framework does not acknowledge disability as a factor in any of the target policy areas. This leaves Aboriginal and Torres Strait Islander children with disability to fall through the cracks when it comes to accessing an education that is disability-inclusive as well as culturally inclusive, and leaves the structural barriers that people with disability face in accessing healthcare unchecked within Indigenous health programs.

While there is legislation about the ‘reasonable and necessary’ supports that the NDIS must provide, there are significant gaps in the application of the Scheme’s guidelines, particularly in remote Aboriginal and Torres Strait Islander communities.^[12] Members from one remote Aboriginal community interviewed as part of the Culture is Inclusion research pointed out that some families needed food and blankets because they were homeless and hungry. But while the NDIS is legislated to provide ‘reasonable and necessary’ supports, food and blankets do not fall within the definition. Therefore, instead of being provided with the food and accommodation support that they needed, these families were instead offered access to specialist disability services. Such packages were also of little value to them in a practical sense, because the disability support services that were funded were not available in the community where they live.

HOW CAN THE NEEDS OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE WITH DISABILITY BE INCLUDED IN THE SOCIAL POLICY AGENDA?

The examples of wide-ranging social inequality outlined above expose the limitations of the current policy approaches that address one, but not multiple, aspects of marginalisation, and create situations where groups of people who are most in need can end up falling through the cracks in the systems of support. Addressing multifaceted marginalisation through a nuanced approach towards intersectional groups is the next frontier in the development of Indigenous and disability policy. However, given that the social inequality experienced by Aboriginal and Torres Strait Islander people is as entrenched as it is widespread, the concern is how best to tackle these complex matters and avoid the temptation to place them in the ‘too hard basket’.

One inquiry with the potential to disrupt the status quo is the Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission). Commencing in 2019, the Disability Royal Commission has declared its intention to elevate the issues of Aboriginal and Torres Strait Islander people with disability, with respected Aboriginal leader Ms Andrea Mason OAM appointed as a Commissioner. The Disability Royal Commission has already heard evidence of the structural barriers that Aboriginal and Torres Strait Islander people with disability face in accessing their rights during hearings that have focused on the education system, group homes, and healthcare, with further hearings to be dedicated to the testimony of Aboriginal and Torres Strait Islander people.

Alongside what is already known about the plight of Aboriginal and Torres Strait lslander people with disability, the Disability Royal Commission is compiling an irresistible business case for significant structural reform to counter what is being exposed as a critical social justice issue. Decision-makers responsible for determining the systems of support are being placed on notice that there will be greater public accountability if the social inequities experienced by some of Australia’s most marginalised citizens are allowed to persist unabated.

Dr Scott Avery is a Senior Lecturer at the School of Social Sciences, Western Sydney University, and is affiliated with the First Peoples Disability Network (Australia), a non-government community organisation for Aboriginal and Torres Strait Islander people with disability and their families.

EMAIL S.Avery@westernsydney.edu.au.

¹ S Avery, Culture is inclusion: A narrative of Aboriginal and Torres Strait Islander people with disability (2018) First Peoples Disability Network (Australia), Sydney.

^[2] Australian Bureau of Statistics (2016) National Aboriginal and Torres Strait Islander Social Survey (NATSISS) 2014–15, Rel. 4714.0; Australian Bureau of Statistics (2016b) Survey of Disability, Ageing and Carers, Australia: Summary of findings 2015 (Household Questionnaire), Rel. 4430.0.

^[3] Avery, above note 1, 107–48. ‘Intersectional inequality’ is derived from the concept of ‘intersectionality’ devised by American legal rights scholar Kimberlé Crenshaw. See K Crenshaw, ‘Mapping the margins: Intersectionality, identity politics, and violence against women of color’, Stanford Law Review, Vol. 43(6), 1991, 1241–99.

^[4] Australian Bureau of Statistics (2017) Social and economic wellbeing of Aboriginal and Torres Strait Islander people with disability, National Aboriginal and Torres Strait Islander Social Survey (NATSISS) 2014–15, Rel. 4714.0.

^[5] Australian Bureau of Statistics (2019) National Aboriginal and Torres Strait Islander Health Survey 2018-19, Rel. 4715.0.

^[6] Avery, above note 1, 125–32.

^[7] Australian Bureau of Statistics (2017) Prisoners in Australia, Rel. 4517.0.

^[8] Justice Health & Forensic Mental Health Network and Juvenile Justice NSW, 2015 Young People in Custody Health Survey: Full Report (2017) NSW Government.

^[9] G O’Brien and M Trudgett, ‘School house to big house’, Australian Journal of Indigenous Education, 2018, <https://doi.org/10.1017/jie.2018.13>.

^[10] CY Kim, DJ Losen and DT Hewitt, The school to prison pipeline: Structuring legal reform, New York, University Press New York, 2010.

^[11] NSW Ombudsman, OCHRE Review Report (October 2019) NSW Government, 267.

^[12] S Avery, ‘Indigenous people with disability have a double disadvantage and the NDIS can’t handle that’, The Conversation, 8 October 2018, <https://theconversation.com/indigenous-people-with-disability-have-a-double-disadvantage-and-the-ndis-cant-handle-that-102648>.