Call for Disability Justice Strategy

The Australian Human Rights Commission has called on all States and Territories to introduce a disability justice strategy after a new report finds people with disability are not treated equally in the criminal justice system

The Commission says the report Equal before the law: Towards disability justice strategies is the culmination of extensive consultations held last year with victims, perpetrators, witnesses, disability advocates, policy makers and criminal justice workers.

The Commission found that equality before the law is a wide-spread problem for people with disabilities, and in some cases, the injustice experienced has been severe.

“I am very concerned that at least 20-30 people with disabilities are detained in jails because they were found unfit to plead,” Disability Discrimination Commissioner Graeme Innes said.

“Denying people appropriate accommodation, and the support needed to return to the community, is nothing short of a breach of human rights.”  

Commissioner Innes has called on all states and territories, as well as the Commonwealth, to introduce an holistic, over-arching disability justice strategy which would improve the lives of people with disabilities and save the community money through diversion and support.

“It is a basic human right for all Australians to be able to access the criminal justice system equally, but as I have discovered, dignity, respect, safety and support are all too often missing when people with disabilities are trying to access justice,” he said.

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 Commision said an overarching disability justice strategy should entail:

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

The report said that the Commission’s attention was also drawn to many services and programs that are attempting to overcome barriers and bridge gaps that frustrate access to justice for people with disabilities.

But “the conclusion that clearly emerges from the submissions, public consultations and private meetings is that despite much good work and the best intentions, people with disabilities have far too many unsatisfactory interactions with the criminal justice system. In particular, knowing what support is available and getting it to the right place at the right time seems to be part of the problem.”

“This and other issues are being addressed in South Australia through development of a Disability Justice Plan. The South Australian Government intends to use this plan to safeguard the rights of all people with disabilities in their interactions with the criminal justice system. They are being careful to involve people with disabilities from the outset in formulating the plan,” the report said.

The Commission has urged governments around Australia to consult with South Australia and to learn from experiences there.

The report will be distributed to Attorneys General and can be found here.