7.1 This chapter discusses issues concerning decision-making ability that have implications for access to justice. Persons with disability may be involved in court processes in a number of different roles, including as parties and witnesses in criminal and civil proceedings.
7.2 In this chapter, the ALRC examines a range of Commonwealth laws and legal frameworks affecting people involved in court proceedings. The issues discussed affect people as:
- defendants in criminal proceedings—the concept of unfitness to stand trial;
- parties to civil proceedings—the appointment and role of litigation representatives;
- witnesses in criminal or civil proceedings—giving evidence as a witness, and consenting to the taking of forensic samples; and
- potential jurors—qualification for jury service.
7.3 In each of these areas there are existing tests of a person’s capacity to exercise legal rights or to participate in legal processes. The ALRC recommends that these tests should be reformed consistently with the National Decision-Making Principles, based on art 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and other sources.
7.4 Generally, the ALRC recommends that these tests be reformulated to focus on whether, and to what extent, a person can be supported to play their role in the justice system, rather than on whether they have capacity to play such a role at all. By providing models in Commonwealth laws, the ALRC also seeks to inform and provide a catalyst for reform of state and territory laws.
7.5 An important theme is the tension between laws that are intended to operate in a ‘protective’ manner—for example, in order to ensure a fair trial—and increasing demands for equal participation, in legal processes, of persons who require decision-making support.
The issues discussed in this chapter do not arise in the same way in tribunal proceedings, which involve merits review of government decisions, and are generally less formal and adversarial than in the courts. There is no equivalent, for example, of rules about the competency of witnesses: see Matthew Groves, ‘Do Administrative Tribunals Have to Be Satisfied of the Competence of Parties Before Them?’ (2013) 20 Psychiatry, Psychology and Law 133.
See Ch 3.