“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.
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.’
[Disability Discrimination Commissioner Graeme] 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.’
A closely related conversation lies in how incredibly difficult it has been made for a person with a disability to pursue a claim under the Disability Discrimination Act. The Equal Opportunity Commission offers no advocacy for people with disabilities (PWD), such claims must be pursued in Federal Court, and PWD not only pay their own legal costs (if they can’t access pro bono representation), but they can be awarded many thousands of dollars in court costs and legal costs from the other side should they lose. That doesn’t just happen if they have no case – it can even happen if there is a finding that there WAS disability discrimination, but the deep-pocketed company concerned manages to convince the judge that there is “unreasonable hardship” involved in rectifying the situation.
When “costs caps” are awarded, they’re in the tens of thousands of dollars. How many PWD have that sort of cash lying around?
Litigating is already incredibly difficult for many PWD even if money and communication and cognitive ability is somehow no object. It’s a drawn-out, soul-sucking, difficult-to-access business. Especially given that Australia has some of the poorest PWD in the OECD, expecting us to shoulder massive financial burdens simply in order to access the world is ridiculous, and has dramatic chilling effects. All a discriminating company or school or department has to do is hold out, push that PWD towards Federal Court, and odds are they will have no choice but to drop the claim.
We desperately need a government-funded third party to investigate and enforce illegal access barriers in our society. The Disability Discrimination Act celebrated its twenty-first birthday last year, but there is precious little to actually celebrate.