7.3 The Issues Paper observed that a range of personal and systemic issues may affect the ability of people with disability to participate fully in court processes. These include:
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.
7.4 Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (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.
7.5 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 before the law. 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.
7.6 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.
7.7 In this chapter, the ALRC examines how a range of Commonwealth laws and legal frameworks affecting people involved in court proceedings might be reformed to reflect the National Decision-Making Principles. By providing models in Commonwealth laws, the ALRC also seeks to inform and provide a catalyst for reform of state and territory laws.
7.8 One theme is the tension between laws that are intended to operate in a ‘protective’ manner—including in order to ensure, for example, a fair trial—and increasing demands for equal participation, in legal processes, of people who may require decision-making support.
IP 44 (2013), citing 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.
Australian Human Rights Commission, ‘Equal Before the Law: Towards Disability Justice Strategies’ (2014).
Administrative tribunals are another important element of the federal civil justice system. However, 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.