Equal Before The Law

Australians who need communications supports, or who have complex and multiple support needs, are not having their rights protected, and are not being treated equally, in the criminal justice system. This must change.

Hence the work of the Australian Human Rights Commission in our report “Equal before the law: towards disability justice strategies”, launched in February. http://www.humanrights.gov.au/publications/equal-law Negative assumptions and attitudes, coupled with a lack of support services often means that people with disabilities are viewed as not credible, not capable of giving evidence or unable to participate in legal proceedings. As a result many are left without effective access to justice.
Since the release of the Commission’s report a number of state and territory governments have acknowledged our findings, and are considering how they might develop Disability Justice Strategies.

Last year we identified five key barriers for people with disabilities. We heard from victims, witnesses, those accused of crime and offenders.

The first barrier concerns programmes, assistance and other community supports addressing violence, prevention and disadvantage, which may not be readily accessible to those with disabilities. One submission told of Sarah, an Aboriginal woman with cognitive impairment, psychosocial disability and health conditions. Sarah began a long pattern of contact with criminal justice and human service agencies at age 12. What became obvious was that there is a lack of appropriate support outside the criminal justice system, and responsibility for addressing her needs was often left to the police and the juvenile justice system. At 18, she was provided with 24 hour supported accommodation through a Community Justice Program. If Sarah had had access to community assistance from an earlier age, she would not have had such continual interaction with the criminal justice system?

Police services are often the fall back position in times of crisis, rather than appropriate community and health services. One submission said ‘The police have become the emergency mental health response … for many individuals and families, and they are ill-equipped for the job.”

The second barrier dealt with the supports people may need, to participate in the criminal justice process. Maria, for example, has cerebral palsy and little speech. She wanted to tell police about a sexual assault, but there was no communication support worker to help with the statement. The police relied on Maria’s parents. Maria was uncomfortable giving personal details in front of her parents, so her evidence was incomplete. This caused problems for the investigation, and during the court process.

Barrier three concerns negative attitudes and assumptions about people with disabilities, which often result in us being viewed as unreliable, not credible or not capable of giving evidence, making legal decisions or participating in legal proceedings. we were told that “When I attended the police station, the police officer thought I was dumb at first, and he didn’t take it seriously.”

We were also told ‘a victim won’t even get their day in court, as the DPP won’t run the case.’

The fourth barrier deals with accommodation and programmes for people deemed ‘unfit to plead’. These people are often detained indefinitely in prisons or psychiatric facilities, without being convicted of a crime. The well-known case of West Australian Marlon Noble demonstrates this. It is one of the Commission’s Twenty Years: Twenty Stories films http://www.humanrights.gov.au/twentystories/video-presumed-innocent.html The last barrier concerns prisoners. Supports and adjustments may not be provided to prisoners with disabilities so that they can meet basic human needs, and participate in prison life. This can result in delays and difficulties exiting prison, or exiting with successful chances of re-integration.

Henry has an acquired brain injury. He wanted to apply for support from Legal Aid to appeal his conviction, and needed help to fill in forms. He found the language complex and difficult to understand. He did not receive assistance in prison to fill out the forms, and filled them out incorrectly. This delayed his application. By the time he filled out the forms correctly, his application was outside the time limit.

And the statistics back up what we heard. 90 per cent of Australian women with intellectual disability have been subjected to sexual abuse at some time during their lives. There are currently at least 20-30 people in our prison systems who have not been convicted of an offense, but have been found unfit to plead, and gaols are the only accommodation option. From 1989 to 2011 105 people were shot by police, and 42 % had a mental illness.

Women, children, Aboriginal and Torres Strait Islander people, and people from a culturally and linguistically diverse background with disabilities, are even less likely to have equitable access to justice.

So what can be done? The justice system in Australia is large and complex. The Commission report recommended that each State or Territory develop its own Disability Justice Strategy, to deal with all of the issues raised in our report.

The Commission also put together a database of programmes and services which provide a more positive justice pathway for people with disabilities. http://www.humanrights.gov.au/our-work/disability-rights/current-project s/programs-and-services-assist-people-disability-criminal

Much more needs to be done so that Australians with disabilities are truly equal before the law.

These comments were made by me at an Australian Human Rights Commission RightsTalk entitled Balancing The Scales Of Justice on 16 June. The whole RightsTalk can be viewed at http://www.youtube.com/watch?v=lXvydqXU08I Captioning is in progress at time of posting.

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