Human Rights Commission Reports on Equality Before the Law for Disabled

Thursday 13 February 2014 @ 10.12 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The ABC News website reports today that "discrimination against people with a disability is widespread in Australia's justice system" the story follows from a report entitled Equal before the law: Towards Disability Justice Strategies (the report) by the Australian Human Rights Commission (AHRC) which states:

"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."

Purpose of Report and Scope of Consultation

The AHRC in 2013 conducted a wide-ranging process of consultation where it sought to identify how people with disabilities deal with the barriers they experience in achieving equality before the law and has now reported on its findings.

According to the report produced by the AHRC it received submissions to it came in a range of formats. It also held public meetings in every State and Territory and in regional locations, as well it conducted many individual meetings with people with disabilities, their advocates, support services and people in the police, courts and the custody and release system.

What the AHRC Found in its Inquiries

The AHRC report indicates that it's consultation process revealed the following:

  • 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.

Given the above extensive list of systemic problems outlined by the report, it is not surprising that the AHRC advocates that: "The case for change is clear". Saying further that not only is there "a human rights imperative to ensure equality before the law" but that the case for such is also a strong economic one. A economic case where significant savings for governments result when support is provided early and diversion options from the criminal justice system are available, while the long-term benefits of reduced contact with the criminal justice system benefit society as a whole.

As an example of the type of problems encountered  by the AHRC during its information gathering for the report, the report relates a case study where a woman with cerebral palsy and little speech capacity wanted to tell police about a sexual assault but as there was no communications support worker to help with the statement the police relied on the woman's parents to provide communication support. The result being the woman was uncomfortable giving personal details of the assault to police in front of her parents meaning her evidence was incomplete which caused problems for the investigation and in the subsequent court proceedings. 

What the AHRC Proposes Should be Done

To tackle the problems it has identified the AHRC proposes that each jurisdiction in Australia should develop a "holistic, over-arching response" to the issues identified in the report, a Disability Justice Strategy. Such a strategy should focus on:

  • the safety of disabled people and their freedom from violence;
  • effective access to justice;
  • non-discrimination;
  • respect for inherent dignity and individual autonomy;
  • freedom to make one’s own decisions and full effective participation and inclusion in the community.

The strategy is also to address core principles and certain fundamental actions, relating to: appropriate communications, early intervention and diversion, increased service capacity, effective training, enhanced accountability and monitoring, and better policies and frameworks.

The full report is readily available (see links under Sources below) and an important read for anyone involved in the legal system.

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