Summary

Access to justice in the criminal justice system for people with disabilities who need communication supports or who have complex and multiple support needs (people with disabilities) is a significant problem in every jurisdiction 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 and of not enjoying equality before the law.

In 2013, the Australian Human Rights Commission conducted a wide-ranging consultation process to identify how people with disabilities deal with the barriers they experience to equality before the law. The Commission sought submissions in a range of forms and held public meetings in every State and Territory, including regional locations. Many individual meetings with people with disabilities and their advocates, support services in the community and in government and people in the police, courts and the custody and release system were also conducted. The consultations, submissions and meetings are listed in Appendix C.

The consultation process revealed:

• Inability to access effective justice compounds disadvantages experienced by people with disabilities.
• Many people with disabilities are left without protection and at risk of ongoing violence.
• People with disabilities experience a relatively high risk of being jailed and are then likely to have repeated contact with the criminal justice system.
• Many offenders with disability have themselves been victims of violence and this had not been responded to appropriately, contributing to a cycle of offending.
• There is widespread difficulty identifying disability and responding to it appropriately.
• Necessary supports and adjustments are not provided because the need is not recognised.
• When a person’s disability is identified, necessary modifications and supports are frequently not provided.
• People with disabilities are not being heard because of perceptions they are unreliable, not credible or incapable of being witnesses.
• Erroneous assessments are being made about the legal competence of people with disabilities.
• Styles of communication and questioning techniques used by police, lawyers, courts and custodial officers can confuse a person with disability.
• Appropriate diversionary measures are underutilised, not available or not effective due to lack of appropriate supports and services.
• People with disabilities are less likely to get bail and more likely to breach bail because they have not understood the bail conditions.

The case for change is clear.

Not only is there a human rights imperative to ensure equality before the law, but there is also a strong economic imperative. Cost-benefit analyses indicate significant savings for governments when support is provided early and diversion options from the criminal justice system are available. The long-term benefits of reduced contact with the criminal justice system are clear and benefit society as a whole. The costs of violence, both personal and economic, are significant. Violence prevention efforts will have positive impacts on both people with disabilities and society as a whole.

The Commission also sought to identify services and programs which are improving equality before the law for people with disabilities. Appendix A highlights some positive initiatives underway in every State and Territory. These initiatives should be expanded. There is an acute need to ensure access to services for people with disabilities living in rural and remote areas.

The Commission has formed the view that in light of the substantial challenges that exist, each jurisdiction in Australia should develop an holistic, over-arching response to these issues through a Disability Justice Strategy.

The Strategy should focus on the following outcomes:

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.

Additionally, any Disability Justice Strategy should address a core set of principles and include certain fundamental actions. These principles and actions are set out in Chapter 4 and address:

• Appropriate communications – Communication is essential to personal autonomy and decision-making. Securing effective and appropriate communication as a right should be the cornerstone of any Disability Justice Strategy.
• Early intervention and diversion – Early intervention and wherever possible diversion into appropriate programs can both enhance the lives of people with disabilities and support the interests of justice.
• Increased service capacity – Increased service capacity and support should be appropriately resourced.
• Effective training – Effective training should address the rights of people with disabilities and prevention of and appropriate responses to violence and abuse, including gender-based violence.
• Enhanced accountability and monitoring – People with disabilities, including children with disabilities, are consulted and actively involved as equal partners in the development, implementation and monitoring of policies, programs and legislation to improve access to justice.
• Better policies and frameworks – Specific measures to address the intersection of disability and gender should be adopted in legislation, policies and programs to achieve appropriate understanding and responses by service providers.

The Commission understands that the Strategies may need to be adapted to suit the circumstances of individual jurisdictions and would need to be given effect in operational plans devised and owned by those ‘on the ground’. We consider, however, that respect for the human rights, dignity and personal autonomy of people with disabilities requires that any Disability Justice Strategy be developed in partnership with people with disabilities.