


New report shows big gaps in justice system for people with disabilities

El Gibbs Ramp Up 7 Feb 2014
Judge's hand with gavel

The Human Rights Commission this week launched its report 'Equal before the law: Towards disability justice strategies'. Credit: SalFalko (Flickr (Creative Commons))


El Gibbs reports on the Human Rights Commission's latest findings on the problems people with disability face when dealing with Australia's criminal justice system.

This week, Disability Discrimination Commissioner Graeme Innes launched a new report, Equal before the law, which outlines the barriers and challenges people with disability face when dealing with the criminal justice system.

The report details specific problems encountered by people with different communication needs and those with complex disabilities. These include a higher risk of being jailed and less access to bail, police and lawyers not having an understanding of modifications and supports needed, and people with disabilities not being seen as credible witnesses.

According to the report, people with disabilities are over-represented within prison, with rates of mental illness and brain injury far above the general population. Aboriginal and Torres Strait Islander people are also more likely to have disability, particularly children. People with disabilities are more likely to be victims of violence, with 90% of women with intellectual disability reporting sexual abuse in one study, most before they turned 18.

At the launch, Alastair McEwin, President of the Deaf Society of NSW, said:

"Imagine you are a young confident deaf person who is fluent and articulate in sign language. Imagine you just happen to be in the wrong place at the wrong time - you're suddenly caught, with some deaf friends, in the very middle of a small riot outside a Sydney pub one night. Police are called to deal with the melee. They see you using your hands and arms to communicate with your deaf friends. The police take these hand/arm movements to be 'wild' and 'threatening'; they assume you're intoxicated and pose a threat to others. Nothing could be further from the truth. The next thing you know, you've been arrested and taken to the nearest police station. No interpreter is provided and you have no idea what is going on."

Fiona Given, from the Australian Centre for Disability Law, told a similar story. She said:

"I would like you to imagine for a second, you have just been sexually assaulted, you cannot speak, you do not have a communication device nor do you have access to an independent communication support worker. This means you are unable to tell anyone what has happened to you. You are unable to call or visit a police station. You are trapped within your own silence."

The Human Rights Commission (HRC) conducted a range of consultations in developing the report, and also commissioned a cost-benefit analysis from Professor Eileen Baldry and PriceWaterhouse Coopers. This paper showed, starkly, that the cost of keeping people with disabilities in jail far outweighed any cost of intervention and support programs. In some of the case studies used in the analysis, the difference was in the millions of dollars for just one person.

Graeme Innes doesn't understand why State and Territory governments are unwilling to fund cost saving support programs. "I think they haven't done it because there's a 'tough on crime' ethos throughout Australian politics, and while some attorneys recognised the impact of these programs, not funding them is a short sighted approach that means damage done to lives of people with disabilities," he said.

Innes is also concerned that recently announced cuts to legal support services will exacerbate this situation, making support for the most vulnerable people within the justice system even more difficult to find.

Several stories in the report illustrate strongly how the lack of support for people with disabilities in the justice system can have devastating impacts on lives. The National Aboriginal and Torres Strait Islander Legal Services cites one client who had only been diagnosed as clinically deaf after his trial for murder:

"He had been through the whole process saying, 'Good' and 'Yes'-those were his two words-and that process had not picked him up. Given the very high rates of hearing loss, you have to wonder about people's participation in the criminal justice system as being fair and just if in cases like that people simply are not hearing or understanding what is going on."

Other groups reported meeting with prisoners who were unaware of why they were in jail, the denial of essential medication and aids, and a lack of access to in-prison support and rehabilitation programs.

In their submission, Advocacy for Inclusion noted that people living in group homes who experienced violence, were specifically excluded from domestic violence laws in many states. They reported that "victims of violence have great difficulty having the user of violence removed or finding alternative accommodation. People with disabilities consequently live in violent situations for many months and even years."

The National Council on Intellectual Disability detailed the myriad ways that people with an intellectual disability are discriminated against within the justice system. For example, a lawyer may not understand that a person requires more time to process a question, so they "will ask another question thinking that person has not understood/ doesn't know/ doesn't want to answer the questions. For the 'client', they then do not know which question to answer first, and will become overwhelmed in situations when a questioner keeps firing one question after another with the common result that they are unable to answer any question."

The HRC report is calling on all State and Territory governments to develop comprehensive Disability Justice Strategies that will highlight the safety of people with disabilities, be non-discriminatory, and ensure freedom from violence. Of the State and Territory representatives approached for comment, NSW Attorney General Greg Smith's office said that he will consider any recommendations that apply to his portfolio, while a representative from ACT AG Simon Corbell replied that their government "will take time to consider the Australian Human Right Commission's report... [which] raises a number of issues across the criminal justice system and disability service system."

Innes believes "the recognition of various disabilities and the impacts they have, irrespective of the type, is the most important issue here. As a blind person I can't see a form, a deaf person using hands to communicate is not being drunk, for a person with intellectual disability, not treating them as stupid. And that sums it up.

"Having a disability doesn't mean people don't have capacity to communicate and participate. It's all very well to say people have formal equality, but for real and substantive equality, we have to recognised the impact of disability on the justice system."

El Gibbs is a freelance writer with an unhealthy interest in Senate Estimate Committees. She's on Twitter as @bluntshovels and blogs unpredictably at AusOpinion and bluntshovels.

Comments (7)


  • Nick Collyer :

    11 Feb 2014 11:47:10am

    Wonderful work by the Commission- Graeme Innes and staff - in getting the word out on this neglected issue. It's not widely known, I think, that 20 - 30 % of people in our jails have intellectual disabilities, and while the courts don't actually put people in jail for having an intellectual disability, that is the net effect. Pragmatically, we can save a lot of $s by working on prevention rather than spending the $ thousands it costs to keep people in prison.

    re: other comments here- Commission staff can only work with the legislation we, thru parliament, give them. Didn't get the outcome you want? Fight harder to strengthen our anti-discrimination laws rather than blaming Commission staff.

    • Anon :

      11 Feb 2014 4:54:21pm

      I can't go into detail about my case, due to the gag clauses put in the agreement by the conciliator! However, my case WAS covered by existing legislation. I didn't get the outcome I wanted, because commission staff refused to accept documented proof from me, but instead took the unsubstantiated denials of my supervisors as fact.

      Show me the weakness in our existing laws, and I'll join the fight to strengthen them. Demonstrate laziness by refusing to accept documented evidence and go for the easy option of a conciliation meeting and close the file instead, and I'll fight the system that's allowing abuses to continue.

    • Blank :

      11 Feb 2014 10:18:02pm

      Just how do you propose disabled individuals (groups) fight harder to strengthen our anti-discrimination laws for the HRC to do their job as they should ? You too should be fighting not just rhetoric ....when we need Action.

      Spell it out why don't you ?

      Mediation only process has got us nowhere in 20 yrs. but more blaming victims. Highly paid jobs $380,000 for so called HR discrimination fighting ... bar humbug.

      Mediation only is like if you rang the police to attend a violent crime in the street, they come, but they just stand there and say oh well the law stops us from doing anything.

      Not good enough.

  • Anon :

    09 Feb 2014 4:12:23pm

    It's a bit hypocritical for the HRC to put this report out, when disabled can't get justice through the Human Rights Commission complaints process!
    In my own complaint over discrimination and bullying by manager/supervisors, I was told by both the case manager and conciliator that they weren't interested in the truth, they just wanted us to make an agreement and walk away. They claimed that we (4 respondents and I) would never agree on what actually happened, so there was no way of finding out the truth. I had emails proving some of my claims and at short notice got 1 witness statement and could have obtained a second, but this evidence was ignored as irrelevant. I was not even allowed a lawyer, while the respondents had one in the "conciliation meeting". I will never trust the HRC again after my direct experience of their brand of justice.

    • Boo Boo :

      11 Feb 2014 9:08:17am

      Spot on Anon !

      HRC does nothing, waste of time. Their mediation only process is a loser. Can't even enforce its own D.D.Act .....I mean sheesh.

      If they can't lift their game may as well save the huge costs of these commissioners $380,000 p.a.+ and staff.

      All they got me was more stress, disappointment + bad news and $700 in costs.

  • pete :

    07 Feb 2014 2:38:32pm

    in my opinion, the whole justice system needs to reorient towards good outcomes for ordinary people and away from the professionals with vested interests. The concerns are not new. The system only works well if you can afford a good lawyer and you already know something about dealing with the police, as a victim or as an alleged offender.

    • anon :

      07 Feb 2014 4:26:32pm

      Disgusting, frightening.

      The whole Justice (not) system needs to hang its head in shame.

      Heard in a Hospital the other day doctor/nurse speaking their opinion is anyone over 60 is geriatric.

      Amazing the we are supposed to work to 67 now.

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