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1 Disability Justice Strategies – an introduction

1.1 Barriers

People with disabilities do not enjoy equality before the law when they come into contact with the criminal justice system in Australia. Whether a person with disability is the victim of a crime, accused of a crime or a witness, they are at increased risk of being disrespected and disbelieved. If a victim, their disability may be seen to mitigate the offender’s guilt; if a perpetrator, their disability makes incarceration more likely. Fundamental human rights that we all expect to enjoy are at stake. These rights are set out in treaties Australia has ratified and in our own legislation.[1]

In 2013 the Australian Human Rights Commission conducted a wide-ranging consultation to assess how people with disabilities and people who work in the criminal justice system cope with the following five barriers:[2]

BARRIER 1. Community support, programs and assistance to prevent violence and disadvantage and address a range of health and social risk factors may not be available to some people with disabilities.

BARRIER 2. People with disabilities do not receive the support, adjustments or aids they need to access protections, to begin or defend criminal matters, or to participate in criminal justice processes.

BARRIER 3. Negative attitudes and assumptions about people with disabilities often result in people with disabilities being viewed as unreliable, not credible or not capable of giving evidence, making legal decisions or participating in legal proceedings.

BARRIER 4. Specialist support, accommodation and programs may not be provided to people with disabilities when they are considered unable to understand or respond to criminal charges made against them (‘unfit to plead’).

BARRIER 5. Support, adjustments and aids may not be provided to prisoners with disabilities so that they can meet basic human needs and participate in prison life.

We asked people to tell us about their experiences, what had worked well and what had not, and what would have been helpful, along with any other ideas that would improve access to justice in the criminal justice system for people with disabilities. We sought submissions in a range of forms and held public meetings in every State and Territory, including regional locations. We also held many individual meetings with people with disabilities, family members, carers, government representatives, politicians, service providers, legal professionals and organisations who hold an interest in access to justice for people with disabilities.

We heard that the inability to access effective justice was compounding the disadvantage experienced by people with disabilities. This results in many people with disabilities being left without protection and at risk of ongoing violence, or more likely to be jailed and destined to have repeated contact with the criminal justice system. We frequently heard that many offenders had previously been victims of violence and this had not been responded to appropriately.

1.2 A way forward

Through our consultation process it became clear that an overarching Disability Justice Strategy is required which entails:

  1. Safety of people with disabilities and freedom from violence
  2. Effective access to justice for people with disabilities
  3. Non-discrimination
  4. Respect for inherent dignity and individual autonomy including the freedom to make one’s own decisions
  5. Full and effective participation and inclusion in the community

These outcomes reflect the understanding that people with disabilities:

  • have the right to be heard and informed
  • should feel safe and be free from violence so that they can live in safety and with dignity
  • should be able to access the support, services and programs they need to prevent disadvantage and address a range of health and social risk factors
  • are able to easily identify and access appropriate high quality services if they experience violence, or feel they are unsafe and at risk of experiencing violence
  • are treated with dignity when they begin or defend criminal matters, or participate in criminal justice processes, and the legal system provides the modifications, supports and aids needed to participate
  • when lawfully deprived of their liberty are treated humanely and provided with supports, adjustments and aids needed to participate in prison life and transition successfully to the community.

1.3 Human rights-based approach to improving access to justice

A human-rights-based approach has been adopted in this report to clarify the responsibilities of government and service sectors and the process required to improve access to justice for people with disabilities.

This approach emphasises that content and process are equally important to bring about effective positive change. With this approach, people with disabilities are viewed as rights-holders, afforded dignity and seen as experts in the solutions that are most likely to be successful. Far too often people with disabilities are consulted to identify the barriers that exist but are absent from any genuine process to identify and develop solutions, and only consulted in the final stage, if at all.

The following principles guide the processes necessary for a human rights-based approach.

(a) Participation

Everyone has the right to participate in decisions that directly affect their lives in any way, including through the development of law, policies and projects.

People with disabilities, particularly women, children, Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse backgrounds, must be consulted in the development and implementation of legislation, policies and procedures relating to access to justice in the criminal justice system and participate in decisions that affect their lives.

(b) Accountability

Everyone has a right to know how their human rights are affected and by whom. This requires proper accountability and transparency from Government.

Governments, police, courts, correctional services and disability service providers, amongst others, have a responsibility to uphold the human rights of people with disabilities and are clearly identified. Monitoring, remedies and effective preventative measures must be available to people with disabilities.

(c) Equality

Everyone has the right to be equal. This requires that attention is paid so that laws, policies and projects benefit everyone and will result in substantive equality for everyone.

A human rights approach requires the elimination and prevention of discrimination in the criminal justice system for people with disabilities, including addressing attitudinal barriers and disadvantage when gender and other issues intersect.

(d) Empowerment

Everyone has the right to claim their human rights. Empowerment is the difference between wanting to act and being able to. Education, training and establishing structures that enable decision making to be shared are important.

Meaningful participation and consultation requires people with disabilities to be provided with the support and aids they require, including communication that is accessible and appropriate.

1.4 Provision of necessary modifications and adjustments

The Convention on the Rights of Persons with Disabilities (the Convention) clearly states that people with disabilities must be provided with necessary modifications and adjustments in order to obtain effective access to justice.[3] This is often referred to as ‘reasonable accommodation’. Reasonable accommodation is the provision of adjustments that aim to level the playing field and remove barriers to full participation. This may include, but is not limited to: physical access to court buildings, provision of accessible information, adjustments in court proceedings and the use of language which can be understood by a person with disability. Article 13(1) of the Convention requires state parties to ensure the provision of “procedural and age-appropriate accommodations” in the criminal justice system. One of the innovations of the Convention is that denial of reasonable accommodation is a distinct and separate ground upon which to base a claim in discrimination under the Convention.

1.5 Implementation

A Disability Justice Strategy should:

  1. be prepared in partnership with people with disabilities
  2. be coordinated across the agencies that deliver outcomes in the criminal justice system
  3. ensure accountability through our system of parliamentary democracy and public administration
  4. involve actions that are embedded in operational plans
  5. be monitored for effectiveness and adjusted in light of experience.

Chapters 2 and 3 explain what is happening on the ground. Chapter 4 proposes that through a Disability Justice Strategy, we can make significant improvements. The actions described in Chapter 3 are fundamental and the need for action is urgent.

[1] See Appendix B to this report.

[2] See Australian Human Rights Commission, Access to justice in the criminal justice system for people with disability, Issues Paper (April 2013) for an extended description of these barriers and the issues they raise. At http://www.humanrights.gov.au/publications/access-justice-criminal-justice-system-people-disability-issues-paper-april-2013 (viewed 24 January 2014).

[3] See Appendix B to this report.