7 minute read
It is time for the legal profession to recognise and embrace disability –
MARK DOUGLAS, BARRISTER, MURRAY CHAMBERS
My right eye is functionally blind. I have about ten percent vision in my left eye. It has more or less been that way since I was a kid.
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When I was three or four my parents were invited to educate me in an institution for the blind. They declined. I was to sink or swim in the sighted world instead.
I have been practising law for 25 years. I am a barrister who has appeared in the High Court, in Courts of Appeal, and in superior and lower State and Federal Courts all over the country conducting trials and appeals involving a wide variety of legal matters. I have questioned many witnesses none of whom I could identify in a line up. I have addressed countless judges without ever reading a single facial expression. I have by any lights had a prosperous and fortunate career.
I highlight these matters of autobiography, because I am also a member of a largely hidden or, at least, overlooked minority in the national profession and in South Australia. There are no South Australian barristers and few solicitors in the profession with a lived experience of disability from an early age.
This year marked the first occasion when the Australian Bar Association ever held a public discussion focused on the question of disability in the profession. That occurred in April. It was also the first year when the Law Society of South Australia dedicated a forum to persons with a disability and access to the law. That took place in June. I participated in both of those fora. My fellow panelists on each occasion said the same thing. None of us could believe that the issue was receiving attention from the profession. It never had before in our careers. We felt surprised. We felt grateful. We felt seen.
There is a value in that.
Census data and data collected by the Australian Bureau of Statistics confirms the very real prevalence of issues of disability in the Australian community who are served by the justice system.
Approximately 18% of all Australians have a disability; that’s approximately 4.4 million people (or one in four members of the community).
Of those persons with a disability one in three have a level of impairment that is recognized as profound (that is, one in three disabled people live with profound impairment; approximately 1.4 million Australians).
We know that incidents of disability increase with age and apply roughly equally between men and women. About 10% of males aged 0 to 14 and 6% of females are disabled. In mid-life 13% of men and women live with disability and by age 65 and over, 50% of the population be they men or women live with a disability.
Disability may be inherited at birth or caused by accident or injury or aging. Of those persons identifying with a disability in Australia three in four live with a form of physical disability and one in four cope with cognitive impairment. Thirty percent of the physically impaired cope with a form of mobility condition with the next largest category involving hearing impairment comprising approximately 9% of disabled Australians.
It is overwhelmingly likely that in a practitioner’s career disability will fundamentally touch the day-to-day experience of many clients and colleagues.
Yet it is not an issue with which the profession has historically engaged directly or at all.
There are no consistent policies in SA or nationally regarding disability access to the courts. Disability access is not the specific subject of any of the Uniform Civil Rules. Two of our State Supreme courtrooms (courts 1 and 2) are acknowledged by the courts to be simply unsuitable and inaccessible to persons with mobility issues. Technology which might offer accessibility solutions enhancing the experience of the visually and hearing impaired (like portable screens and real time transcript) is slow in coming to South Australian courtrooms.
Similarly, within the profession itself there is no formal provision for lawyers with a lived experience of disability. The barriers to entry to legal practice facing those with a disability must be acknowledged as particularly high.
If, despite this, persons with disability enter law school or the junior profession there are no formal mentor networks which provide a foundation of support or means of passing on practical experience of how to work in law with a disability. Disclosed disability can operate as a barrier to a new lawyer being hired. Equitable work allocation and briefing practices do not extend or are not consciously extended to the topic of disability. As a result, there are few persons who identify with a lived experience of disability working in the senior profession or appointed to the judiciary. There are no senior counsel in South Australia with a lived experience of disability. This thwarts the increasingly accepted community expectation that the senior profession and judiciary will reflect the demographic diversity of the community which it serves.
There are, perhaps, obvious historical reasons for this.
The law is a competitive enterprise. There is a stigma attached to admitting an impairment. It is very bad marketing.
Mark Douglas (middle) with SA Attorney General The Hon Kyam Maher (right) and Law Society President Justin Stewart-Rattray
I certainly did not advertise the challenges that I was facing to clients or to colleagues early in my career. “Let me argue your case blindfolded,” does not inspire confidence in colleagues or clients.
Disability, unlike gender, also requires a more subtle and nuanced response. While the suggestion that there are limitations on a person’s performance as a professional based on sex is preposterous; the same cannot always be said of disability. By definition, disability denotes a degree of impairment or incapacity. No one wants me as their Uber driver or their surgeon and that is completely reasonable.
Disability is a broad church containing a spectrum of conditions and each person within a particular category of condition is touched by impairment in their own way. The requirement to treat this fairly is demanding. It requires us to focus on what they say about their capacities and not their incapacities.
This requires effort. It is easier to default to the assumption that because a person suffers a level of impairment in one area that means that they are impaired in all areas. I can attest to the tendency to conflate physical and intellectual impairment, for example. This is also an approach that can be motivated by misplaced but good intentions directed to relieving a person living with impairment from tasks which are beyond their capacities.
There are also facets of the treatment of disabled people which are less well intentioned. Disability discrimination is as real and necessarily deserving of prosecution as is discrimination on the basis of gender. While it has not been a traditional focus of training in the profession by-stander intervention is equally important in this area.
The obvious problem with the historical approaches to disability—namely, to disqualify the disabled from opportunity or to institutionalise the disabled or to neglect the issue of disability altogether— is the waste that this causes.
Within the profession it denies access to the intellectual capabilities of some very bright people excluded because of a false inference about what they can and cannot do. It erodes diversity of experience. It deprives the community of a profession that reflects its own composition.
As to the clients that the profession serves, not contending with these issues deliberately and consciously means that the justice system is simply less accessible and fair than it can be to a vast swathe of the Australian community.
In both cases, bringing these issues into the sunlight and working to improve the way in which the law acknowledges and negotiates issues of disability offers, I would argue, nothing but benefit. The numbers tell us that while few are born disabled about half of us age into some spectrum of disability. A more direct approach to these issues makes our workplaces and our justice system function better for all of us. Removing the stigma around these discussions and then actually having these discussions is the first step.
That is not always easy. This year is the first time when I have spoken or written publicly about my impairment. It is a confronting thing to do. But it is time.
Each of the fora in which I participated earlier in the year were correctly acknowledged as the first iteration of a conversation that is just starting both here in South Australia and nationally. I sincerely believe that it is an important one. I invite all practitioners to participate. It can have only benefit for all of us and the interests of justice that it is our privilege to mutually serve. B
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