Friday, May 26, 2017
Text Size

Equal Access to Justice

Commitments sought

The development of a Disability Justice Strategy incorporating real actions (funded programs) focusing on outcomes which support people with disabilities to achieve equitable access to the justice system. This Strategy must include:

  1. Invest in specialist community legal services that have capacity to respond to the access needs of people with disabilities as well as target the specific legal issues experienced by people with disabilities such as child protection, guardianship, and violence;
  2. Training for police and court personnel regarding the access rights and needs of people with disabilities;
  3. Invest in systems for providing support, accommodations and adjustments to people with disabilities at all stages of legal proceedings;
  4. Systematic data collection disaggregated by disability.

 

What is currently being done?

Disability led responses

-       None. There are currently no programs funded by the ACT government, controlled by and for people with disabilities, such as legal services or advocacy support targeted at improving access to justice.

Disability specialist responses

-       None.

Mainstream responses

-       The Disability Discrimination Law Service, other community legal centres, and Legal Aid, respond to many people with disabilities but have no specialist staff or communications expertise.

Background

 

People with disabilities are more likely to experience legal issues, which are wide-ranging and may further entrench their social exclusion.[1] They are significantly over represented in the criminal justice system as both offenders and victims, and are disproportionately impacted by child protection, guardianship, and tenancy matters. They are also significantly less likely to have their legal problems finalised.[2] It is clear the current reliance on mainstream services is not working.

Barriers include costs associated with legal representation as a socioeconomically disadvantaged group and difficulties accessing necessary support, adjustment or aids throughout proceedings.[3] Despite the demand, there are very few specialist disability response legal services anywhere in Australia, and few that have a capacity to respond to the variety of matters that the disability population faces. A shortage of funding to legal assistance services severely undermines their capacity to meet the legal needs of diverse groups, particularly people with disabilities who generally need more time and specific targeted responses.[4] This makes accessing the legal system highly problematic especially for people with cognitive impairment; they can find the highly formalised legal procedures and jargon incomprehensible, alienating and intimidating.[5]

In some instances people with disabilities are not provided with legal representation at all. For example, it is not usually expected that a person with disability subject to a guardianship application will have legal representation and it is certainly not routinely provided. In our experience legal representation is only provided when we intervene and organise it. Advocacy for Inclusion is only able to service a very small proportion of people in such circumstances, so the vast majority does not access legal representation. While guardianship hearings are conducted in a tribunal and are considered less formal, the decisions made through these processes have the power to remove a disabled person’s legal right to make decisions. Thus, access to legal representation is important for a fair process that can result in major life changing consequences to the person’s freedom.

When people with disabilities do access legal representation, lawyers are ill-equipped to respond to their particular individual needs because they are not specialists in disability communication; for example, allowing the client time to process information, or communicating in ways that support their comprehension and involvement.

People with disabilities not only need access to legal representation, but they also often need adjustments and supports throughout various points in a justice process. Inflexible systems fail to respond to a person’s disability and their associated needs, or the identification of their disability leads to discrimination against them both as victims and offenders. For instance, being assessed as having cognitive impairment, and subsequently being found unfit to plead, contributes to the indefinite detention of people with disabilities.[6] Victims with cognitive impairment may also be deemed unreliable witnesses, and subsequently be denied a fair hearing.

These barriers influence the sentencing stage and are a factor in the high number of detention orders imposed on people with disabilities.[7] For defendants with disabilities, some will struggle to understand their legal rights, including the right to silence, especially where no specific communications support is provided at arrest.[8] People with disabilities require a specialist response to aid their access to the justice system at every stage. This includes social supports to understand the process as well as disability responsive legal services.

A barrier to understanding the problem is inadequate data collection. The ACT Criminal Justice Statistical Profile rightly collects and publishes data on the interactions between other population groups and policing, courts, the Restorative Justice Unit and Corrective Services. Data is also provided on the age and gender of offenders, detainees and victims. However, disability status is not indicated, leaving a major gap in knowledge about the extent of disability access and support needs in the system.


[1] Coumarelos, C. et al. (2012), Legal Australia-wide survey: Legal need in the Australian Capital Territory (Vol. 8). Law and Justice Foundation of New South Wales, xv. 

[2] As above.

[3] Australian Law Reform Commission (2014) Equality, Capacity and Disability in Commonwealth Laws – Final Report, ALRC Report 124, p192.

[4] The Law Council of Australia (2014) Submission to Inquiry into Equality, Capacity and Disability in Commonwealth Laws. Office of the Public Advocate Victoria (2011) Submission to the Inquiry into Access to and Interaction with the Justice System by People with Intellectual Disability and their Families and Carers, 20-21.

[5] Parliament of Victoria Law Reform Committee (2013) Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers- Final Report. quoting the Submissions of the Legal Services Commissioner, Villamanta Disability Rights Legal Service, Victorian Advocacy League for Individuals with Disability Inc  xxiv, 103, 178, 205.

[6] Aboriginal Disability Justice Campaign, ‘Position Statement on the Inappropriate Incarceration of Aboriginal People with Cognitive Impairment’, (Position Paper, People With Disability Australia, October 2008) <www.pwd.org.au/systemic/adjc.html>. Sotiri, M, McGee, P, & Baldry, E (2012) No End in Sight. The Imprisonment and Indefinite Detention of Indigenous Australians with a Cognitive Impairment. Sydney: University of NSW.

[7] Cockram, J. ‘People with an Intellectual Disability in Prisons’ (2005) 12 Psychiatry, Psychology and Law 163, 170.

[8] Bartels, L. (2011). Police Interviews with Vulnerable Adult Suspects. Research in Practice Report No. 21. Australian Institute of Criminology, Canberra, ACT. 13p.