7.6 A range of personal and systemic issues may affect the ability of persons with disabilities to participate fully in court processes. These include:
- communication barriers;
- difficulties accessing the necessary support, adjustments or aids to participate in the justice system;
- issues associated with giving instructions to legal representatives and capacity to participate in litigation;
- the costs associated with legal representation; and
- misconceptions and stereotypes about the reliability and credibility of people with disability as witnesses.
7.7 Article 13 of the CRPD stipulates that States Parties must ensure effective access to justice for persons with disabilities on an equal basis with others, including by:
- providing procedural and age-appropriate accommodations to facilitate their role as direct and indirect participants, including as witnesses, in all legal proceedings; and
- promoting appropriate training for those working in the field of administration of justice, including police and prison staff.
7.8 In its 2014 report, Equal Before the Law: Towards Disability Justice Strategies, the Australian Human Rights Commission (AHRC) identified the barriers people with disabilities face in achieving equality in the criminal justice system. It recommended that each jurisdiction in Australia, in addressing these barriers, should develop a Disability Justice Strategy, incorporating the following core set of principles and actions:
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.
7.9 The access to justice issues addressed in the context of this ALRC Inquiry are narrower in scope. The focus of the Inquiry is on laws and legal frameworks affecting people who may need decision-making support rather than, for example, on how and by whom such support should be provided and funded.
7.10 Legal reform is likely to have limited practical impact if people do not have access to the support necessary to enable them to participate in legal processes. Further, under the CRPD, Commonwealth, state and territory governments have an obligation to provide support to people with disability to assist them in decision-making.
7.11 The significance of the availability of support was emphasised by stakeholders. The Offices of the Public Advocate (South Australia and Victoria) (OPA (SA and Vic)) submitted that the ‘foremost concern’ in relation to access to justice is ‘the lack of support available for people with cognitive impairment currently accessing and interacting with the justice system’.
7.12 National Disability Services (NDS) said that reform to encourage supported decision-making makes it ‘imperative for the justice system to draw on disability expertise in decision support and adjustments’ such as:
interviewing techniques that address issues associated with recall of information or a propensity to be led by authorities;
assistive technology and techniques that addresses communication barriers; and
support to address circumstances where there are reduced social networks and fear of retribution if experiencing carer abuse.
See, eg, Law Council of Australia, Submission 142. ‘The Law Council considers that lack of appropriate funding to legal assistance services has severely undermined the capacity of legal assistance providers to meet the legal needs of specific and vulnerable target groups, particularly people with disabilities’.
See, eg, Abigail Gray, Suzie Forell and Sophie Clarke, ‘Cognitive Impairment, Legal Need and Access to Justice’, (2009) Justice Issues, Law and Justice Foundation, Paper No 10.
‘Equal Before the Law: Towards Disability Justice Strategies’ (Australian Human Rights Commission, 2014).
UN Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) art 12(3).
Offices of the Public Advocate (SA and Vic), Submission 95. ‘For example, our experience is that accommodation for people with disabilities in court processes such as cross-examination is not being made’. The OPA (SA and Vic) considered a ‘comprehensive Disability Justice Plan is required, that considers the needs of people with disability who are victims, witnesses and offenders, across civil and criminal law’.
National Disability Services, Submission 92.