Sunday, 7 August 2016
Thursday, 28 July 2016
Two days ago, on the 26th of July 2016, a man in Japan – I refuse to acknowledge his name – killed 19 people and left 26 others injured in a deliberate knife attack (McCurry 2016). It rated little mention in the media, no great outrage on social media. There was no mention of the word “terrorist” or “hate crime”. There was, in fact, hardly any outrage. Because the people he so brutally attacked were not people at a concert or fireworks. They were not shoppers in a local mall. They were not people in a restaurant or movie theatre. They were residents of an institution for people with disability. And that, you see, makes all the difference.
This man in Japan had made it very clear he intended to do this. He wrote a letter to his government outlining his plan. He was interned into a mental health facility for 12 days and released. And then carried out his plan.
His plan, he wrote in his letter to the government was to create ‘a world where a person with multiple disabilities can be euthanized, with an agreement from the guardians because ‘the disabled should all disappear”.
Why does society hate and despise disabled people so much?! How can it be that people with disability (PwD) are so easily discriminated against, forgotten, deliberately ignored, made fun of, stereotyped, dismissed?
In order to understand, I think we need to look at two concepts: deviance, and ableism.
Deviance is any rule or norm breaking behaviour subject to negative social sanctions; and thus deviants are non-conformists who transgress a community’s normative standards.
Deviance of course, only exists in opposition to “normal.” The difficulty with the term “normal” is illustrated by its very definition – it refers to both that what is the majority, the average or standard, and that what is as it ought to be. the first meaning is rational and scientific, what is “normal” and natural (such as the movement of the planets) is what conforms to the laws of nature. The second meaning of “normal” implies an evaluation and judgement (the normative).
So what is “normal”? Normal is a concept developed as part of industrialisation in the 19th Century. This economic and political revolution shifted authority - including legal authority - from local rulers to the authority of the nation state and the power of the capitalist class. Modernisation ordered social life around the idea of the “normal”, a concept visualised in the Bell Curve. The French statistician Adolphe Quetelet (1796-1847) was vital in the construction of the notion of l’homme moyen (the average, or normal man). A hierarchy was established based on the median as an ideal, which soon became the measure of progress (Davis 199167). This was applied to both the body, creating the able body and the disabled body. The Intelligence Quotient (IQ) emerged as a handy measure to show intellectual superiority on the one hand and “backwardness” on the other (Davis 1997:17).
In the 1870s, Darwin’s biological concepts of “natural selection” and “survival of the fittest” were applied to the social world. Eugenics extended this idea further to selectively improve the quality of the human race based on the physical and social traits preferred by society at the time. Eugenics was conceptualized by English naturalist and mathematician Francis Galton (1822-1911) and described as “the science of improvement of the human race by better breeding” (quoted in Friedlander 1995:4).
Social Darwinism and eugenics not only reinforced existing stereotypes of the disabled but also provided a scientific and normative framework for these prejudices. Since the “normal” implies the “abnormal” disability became inherently connected, if not simply equated, with deviance. PwD were viewed at best with morbid fascination and disdain - hence their display at freak shows (see Bogdan 1988) – and at worst with deviant and criminal behaviour. Their digression from the median made it easy for all “undesirables” such as criminals, alcoholics, the poor and PwD to be grouped together in an underclass of “paupers”.
In 17th and 18th Century Europe and America ‘there was little attempt to distinguish between a “criminal” and a “lunatic” population’ (Garton 1982:89). Criminality was linked to moral deprivation and seen as a contagious disease to be regulated by the State. Deemed inefficient and unproductive in industrialised society, the poor and uneducated were lumped together with those with mental illness, intellectual disabilities, physical impairments and alcoholics as “feebleminded” (Winzer 1997; Garton 1982). The aim was to contain them in institutions and subject them to controls on their procreation, mainly via forced sterilization (Davis 1997; Garton 1982). Only in the 19th Century was a distinction made between criminals and PwD, and separate institutions were established in the form of penal institutions and “lunatic asylums”.
In the United States so called “Ugly Laws” were enacted that made it illegal for people with “unsightly” or “disfiguring” disabilities to appear in public (Schweik 2010). Chicago’s Municipal Code Section #36034 (1881), which was not repealed until 1974, stated:
“No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly, disgusting or improper is to be allowed in or on the public ways or other public places in this city, or shall therein or thereon expose himself to public view, under penalty of not less than one dollar nor more than fifty dollars for each offense.”
The perception of the disabled as deviant was taken to its extreme by the Nazi regime in Germany and its systematic eradication of PwD though the Aktion T4 euthanasia program, where the Nazis honed their procedures later used in the concentration camp regime. PwD were deemed “degenerates” who were “lebensunwert” (considered unworthy of life). Their very existence was deemed a threat to a healthy, normal society, and PwD thus needed to be eliminated for the health and survival of the volk (Friedlander 1995; Evans 2004). This thinking is so internalized as a social norm that it permeates into popular culture – think about how many literary works portray villains as one legged, one-eyed or hunchbacks. A currently popular Hollywood movie features a man with a spinal injury who wants to commit assisted suicide because his life in a wheelchair is a life not worth living.
While impairments have always existed, a rational, scientific approach allowed deviance to be pathologised and emerging classification of “normal” and “not-normal”, “abnormal”, and, “deviants”, “idiots”, “degenerates” etc. Of course, all binary oppositions are inherently interdependent since each side of the dichotomy derives its meaning from the contrasting relationship with the other.
Thus, society needs PwD’s “abnormality” to be the mirror for their “normality” in a never-ending dance between pity and contempt as the distinguishing factor.
And this brings us to the concept of ableism.
Ableism is ‘an attitude that devalues or differentiates disability though the valuation of able-bodiedness equalled to normalcy’ (Campbell 2009:5). Ableism is a ‘network of beliefs, processes and practices that is projected as the perfect species –typical and therefore essentially and fully human. Disability then, is cast as a diminished state of being human (Campbell 2001:44). Thus, ableism contains the ‘belief that impairment or disability is inherently negative and, where possible, should be ameliorated, cured, or eliminated” (Campbell 2009:5).
Today, despite an increased acceptance of greater human diversity thanks to social movements centred around civil and human rights, PwD are still struggling with perceptions of abnormality and deviance. When a serious crime is committed, popular media immediately defines the perpetrator as “mental” or “psycho”. Tabloid media endlessly regurgitates the image of the disabled dole bludger scrounging off the Aussie battler’s hard word- thus not only “othering” but also denigrating PwD.
Eugenics has made somewhat of a comeback, again coated in a mantle of scientific validation around genetic discoveries. Many medical institutes are actively searching for foetal genetic tests to eradicate disability - and therefore people with disability. Pre-birth tests aim to screen for known disabilities so they can be “terminated” before birth. Disabled women and girls, especially those with intellectual disability, are still subjected to sterilisations without their consent. There is still debate around the growth attenuation (stunting growth) of children with disability, to keep them small and easier to care for, even though it raises serious ethical and human rights questions. While debate rages on, one thing is for certain – it wouldn’t even be contemplated for non-disabled children. As Findlay points out it “perpetuates the infantilisation and low expectation of people with disabilities” and “reinforces the idea that people with severe disabilities shouldn’t be afforded the growth and development opportunities, and the choice and dignity that non-disabled people are privileged to have.”
Bogdan Robert, 1988, Freak Show: Presenting Human Oddities for Amusement and Profit, Chicago University Press.
Campbell, Fiona Kumary, 2001, Inciting legal fictions: Disability’s date with onthology and the ableist body of the law, Griffith Law Review 10: 42-62.
Campbell, Fiona Kumary, 2009, Contours of Ableism – The Production of Disability and Ableism, Palgrave Macmillan.
Cunneen Chris, Fraser, David, and Tomsen, Stephen (eds.), 1997, Faces of Hate: Hate Crime in Australia, Hawkins Press.
Davis, Lennard, 1997, Constructing Normalcy: The Bell Curve, the Novel, and the Invention of the Disabled Body in the Nineteenth Century in Davies, Lennard (ed.) The Disability Studies Reader, Routledge_ 9-28.
Evans, Susan, 2004, Forgotten Crimes: The Holocaust and People with Disabilities, Ivan Dee.
Findlay, Carly, 2016, Comment: Growth attenutuation infantilises people with disability, <htpp://sbs.com.au/topics/life/health/article/2016/06/24/comment-growth-attentuation-infantilises-people-disability>.
Friedlander Henry 1995, The Origins of Nazi Genocide: from Euthanasia to the Final Solution, Chapel Hill.
Garton, Stephen, 1982, ‘Bad or Mad? Developments in incarceration in NSW 1880-1920’. pp. 89-110 in Sydney Labour History Group, What Rough Beast? The State and Social Order in Australian History. Sydney: The Australian Society for the Study of Labour History and George Allen & Unwin.
McCurry, Justin, 2016, ‘Japan knife attack: stabbing at care centre leaves 19 dead’ The Guardian, Tuesday 26July 2016, < https://www.theguardian.com/world/2016/jul/25/tokyo-knife-attack-stabbing-sagamihara>.
Schweik, Susan, 2010, The Ugly Laws: Disability in Public, NYU Press.
Winzer, Margaret, 1997, Disability and Society before the Eighteenth the Century – Dread and Despair, in Davies, Lennard, (ed.) The Disability Studies Reader, Routledge: 75-109.
Friday, 29 April 2016
Another day, another petition.
Santiago Velasquez is the latest to hit my inbox.
Santi, as he is known to his friends, is a 20 year old engineering student at Queensland University of Technology. He was born in the foothills of the Andes in Columbia and after coming to Australia, Santi quickly learned English and was elected Vice Captain to his school in 2014. He did true blue Aussie things like completing the 55 km Oxfam Trail Walker and both the 48 km and 96 km Kokoda Challenge for charities. He was selected for a number of engineering challenges at regional, state and national level.
What makes this all the more impressive is that Santi has an eye condition which leaves him with no vision in one eye and about 3% in his other. But there also lies the crux of Santi’s problem.
For the last 5 years, his family have been trying to apply for permanent residency. They would eventually like to become citizens.
But because if Santi’s vision problems, he is deemed a “burden to society” and too much of a cost to allow in. So here is a bright kid with a great future, an all round asset to our country. Denied entry because of his disability. As is his entire family.
Santiago is not the only person caught out like this.
Here are a some names of recent cases and stories: Simran Kaur Dr. Bernard Moeller and his son Lukas, Maria Sevilla and her son Tryone. There are plenty more.
How can this happen, in a country that has, since 1992, had a Disability Discrimination Act 1992 (Cth) (DDA) which makes both direct and indirect discrimination against PwD and their family members illegal?
The DDA is subject to significant range of exception, some inherent to having a disability, and some based on the idea that non-discrimination would incur “unjustifiable hardship”.
Furthermore, s 52 of the DDA exempts ‘(i) the Migration Act 1958; or (ii) a legislative instrument made under that Act’.
This means, in effect, that the Australian government has legislated to allowed itself to discriminate people on the basis of their disability for migration purposes.
In fact, our very own Graeme Innes, once Disability Discrimination Commissioner, would not be allowed to migrate to Australia. Or would eminent professor Ron McCallum. Or Louise Sauvage, Kurt Fearnley, Luckily they were born Australian citizens, But people like Steven Hawkins. Hellen Keller. David Blunkett. Christopher Reeves. Ludwig von Beethoven. Stevie Brown. Just some of the people – and their families - Australia would reject.
How is it done? Let’s have a look at this in some more detail.
The Migration Act 1958 (Cth) section 5(1)
(a) relates to the applicant for the visa, or the members of the family unit of that applicant (within the meaning of the regulations); and
(b) deals with:
(i) prescribed disease; or
(ii) a prescribed kind of disease; or
(iii) a prescribed physical or mental condition; or
(iv) a prescribed kind of physical or mental condition; or
(v) a prescribe kind of examination; or
(vi) a prescribed kind of treatment;
The details are regulated in the Migration Regulations 1994 (Cth) where Schedule 4 lists Health Requirements (called Public Interest Criteria in the Regulations). Applicants need to be free from tuberculosis or any other contagious disease that is a threat to public health in Australia, and comply to two “limbs” of a cost requirement. They need to be free from a disease or condition that would impose significant costs to the Australian community (“limb 1”) or prejudice the access to such care for Australian citizens and residents (“limb 2”).
The provisions operate regardless of whether these services will actually be used by the applicant; they apply to all family members of the visa applicant - even if that family member actually has no intention to ever migrate to Australia (“one fails all fail”); the threshold cost is determined over an applicant’s lifetime - which makes it virtually impossible for disabled children to comply; and this is a cost analysis only. It does not take into account the contribution the potential migrant and their family members make.
These requirements apply to almost all visa applicants in some form or another – there are slight variations for different visa categories, and some are open to a waiver. They even apply to refugees who were maimed or tortured - surely the most vulnerable and deserving of all humanitarian migrants.
There are some prejudiced and inherently discriminatory assumptions underlying the current approach to the health requirements.
- Disability is fundamentally different from disease. There are plenty of PwD who are otherwise perfectly healthy.
- The provisions operate regardless of whether these services will actually be used by the applicant.
- The Health Requirements apply to all family members of the visa applicant – regardless of whether the family member actually intends to migrate to Australia or not (“one fails all fail”). This has far-reaching consequences – and in some cases, resulted in further disadvantage, trauma, or even human rights violations. Extended family members, or children from a first marriage, have been barriers for people. Family members with disability have been left behind or institutionalized before visa application. Women and children are particularly vulnerable.
- The threshold cost is determined over an applicant’s lifetime. Prescribed by Department of Immigration and Citizenship and currently (2014) set at $40,000.This makes it virtually impossible for disabled children to comply
- This is a cost analysis only. It does not take into account the contribution the potential migrant and their family members make. Not does the cost argument make any internal sense. If cost was truly the deciding factor, then why not “cost” all migrants? Why do we cost someone with a disability but not a smoker? Conversely, if cost is really the screening factor, why can a visa not be granted when people undertake to self-finance all disability-related costs?
In addition, this approach is in clear contravention with our obligations under the 2006 UN Convention on the Rights of Persons with Disabilities (CRPD).
Although not directly enforceable on state parties, the CRPD requires that state parties ensure laws do not contravene its obligations for non-discrimination and requires state parties ensure that domestic law and government programs are in harmony with obligations under the Convention.
The Health Requirements contravene Article 4, 5 of the CRPD, as well as article 18, which states that PwD ‘are not deprived, on the basis of disability, of their ability to obtain, possess, and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceeding, that may be needed to facilitate exercise of the right to liberty of movement (…).’
The United Nations Human Rights Committee established a “Proportionality Test” that different treatment does not constitute discrimination if ‘the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the [International] Covenant [of Civil and Political Rights]’ (HRC 1989). The Health Requirements do not comply with the Proportionality Test.
Article 4(1)(b) of the CRDP states ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’. The health requirements are applied only to people with disease and disabilities and are additional criteria that are not required of other visa applicants. By failing to differentiate between disease and disability, the health requirements fail the proportionality test. CRDP and DDA already allow some exemptions. DDA mentions in s 48 that it is not unlawful “for a person to discriminate against another person on the grounds of the other person’s disability if the person’s disability is an infectious disease; and the discrimination is reasonably necessary to protect public health” which would more than correlate with limb 2 reasoning for Health Requirements, while allowing for a cost/benefit analysis.
How can this be remedied?
- Update Health Requirements to assess costs only of services that will actually be used by the applicant (not by not hypothetical person). The Australian Government has previously supported this in principle and stated it will be reviewed as part of a proposed overall health requirement. But no action has been taken.
- Remove “one fails all fail” criterion. The government previously said it will review this in favour of a ‘net benefit approach (which) would consider the likely benefit of a whole family unit’ (see Government Response 6 in Australian Government ). But hasn’t acted accordingly.
- Separate diseases and medical conditions from disability in the Health Requirements.
- Amend the Health Requirements to evaluate cost/benefit rather than only cost. The government has supported this idea in principle and began feasibility assessment in 2012. A report was due in 2013 – I have not managed to find any trace of it.
- Update Health Requirements to apply a full cost/benefit assessment to every migrant, not just those with ‘conditions and diseases’.
But most importantly:
- Remove the Migration Act exemption from the DDA (remove s 52 of DDA), as would be required under article 4 (1)(b) of the CRPD.
- Fully enable CRPD into domestic legislation.
Only then will Australia no longer discriminate against migrants with a disability, and be in line with its own and international legislation.
And I won’t have to sign those endless petitions anymore.
For more information:
Elizabeth Waldeck and Robert Guthrie, 2007, ‘Disability Discrimination and Immigration in Australia’, International Journal of Discrimination and the Law 8, 219. Although written before the CRDP, it provides a useful overview of the legal and social / human rights issues.
Joint Standing Committee on Migration, Parliament of Australia, 2010, Enabling Australia – Inquiry into the Migration Treatment of Disability – a detailed analysis of disability and migration and recommendations to remove discriminatory elements from it.
Australian Government, 2012, Australian Government Response to the Joint Standing Committee on Migration Report: Enabling Australia – Inquiry into the Migration Treatment of Disability.
UN Human Rights Committee (HRC), 1989, CCPR General Comment No. 18: Non-discrimination, 10 November 1989, available at: http://www.refworld.org/docid/453883fa8.html.
National Ethnic Disability Alliance, refugees and migrants with disability, 2010, Joint statement on the report from the joint standing committee on migration into the migration treatment of disability, released 21 June 2010, available from http://www.neda.org.au/index.php/latest/25-refugees-and-migrants-with-disability.