Equal before the law? How the criminal justice system is failing people with disability

I acknowledge the traditional owners of the land on which we meet and pay my respect to their elders past and present.

I am delighted to be here today to deliver the 2016 Annual Costello Lecture.

Last year, the President of the Australian Human Rights Commission, Professor Gillian Triggs, delivered a lecture on business and human rights, proposing that the corporate world is both a cause and a solution to breaches of human rights.

Today I would like to discuss with you the criminal justice system in relation to human rights. In particular, I will explore the extent to which people with disability are treated differently within the justice system compared to members of the broader community.

Introduction

Rose (‘Rosie’) Ann Fulton, a name you may be familiar with.

In 2014, she caught the nation’s attention as the 23-year-old NT resident who spent at least 18 months in prison without conviction for crimes relating to a motor vehicle. She had been found unfit to plead by a WA Court because she had an intellectual disability and was sent to Kalgoorlie prison because no other suitable accommodation was available for her.

Following media attention, public outcry and a petition signed by 120,000 Australians, the NT Government intervened to see Ms Fulton returned to her home in Alice Springs.

So what has become of Rosie Ann Fulton?

Just a few months ago, Ms Fulton was rearrested for assaulting a police officer and disorderly conduct in a police station. She was sentenced to 21 days’ jail.

Ms Fulton’s guardian Ian McKinlay was quoted in the media saying that the residential care model devised for her by the Health Department had failed. He said: “The support has slowly collapsed down to next to nothing ... For all intents and purposes she's back on the streets, taking drugs, being exploited and is at serious risk."^[1]

And in news from last Friday, the United Nations Committee on the Rights of Persons with Disabilities released its views on the case of Marlon Noble.^[2] That name may also be familiar to you. Mr Noble, an Aboriginal man who has an intellectual disability, was charged with child sexual abuse in Western Australia. He was deemed unfit to stand trial but was nevertheless detained in prison for more than 10 years. The Committee found that because the authorities did not provide alternatives and support services for Mr Noble, this detention converted Mr Noble’s “disability into the core cause of his detention”.^[3] And, further, the Committee noted that throughout Mr Noble’s detention, “the whole judicial procedure focused on his mental capacity to stand trial without giving him any possibility to plead not guilty and test the evidence submitted against him.”^[4]

What are we seeing here?

A grim picture of disability, disadvantage, discrimination. Our repeated failure as a nation to respect the basic human right of all Australians, including people with disability, to have equal access to justice. It is ten years since the Convention on the Rights of Persons with Disabilities was adopted by the United Nations. Yet we are still seeing people with disability treated as inferior to others in the criminal justice system.

Sadly, Ms Fulton’s and Mr Noble’s cases are not isolated ones. Many Australians who need communication supports, or who have complex and multiple support needs, are not having their rights protected, and are not being treated equally, in the criminal justice system.
People with disability continue to be ‘outsiders’, struggling to understand and be understood in formal systems not designed with them in mind and, for a long time, without their input.

Case for change

In 2014 the Australian Human Rights Commission, under the leadership of former Disability Discrimination Commissioner Graeme Innes, published the report "Equal before the law: towards disability justice strategies". In developing this report, the Commission consulted with victims, witnesses, those accused of crime and offenders.

I would like to look briefly at the situation described in that report and consider what if any progress has occurred.

Evidence and submissions examined by the Commission supported the conclusion that people with disability have higher rates of interaction with the criminal justice system than other Australians. For example, more than a quarter of people who report sexual assault have a disability.^[5]

The situation of people with intellectual disability or mental illness who come in contact with the criminal justice system, especially young people, is particularly precarious and concerning.

• In NSW, young people with mental health disorders and/or cognitive impairment are at least six times more likely to be in prison compared with young people without a disability.^[6]
• Research by the Australian Institute of Criminology revealed that between 1989 and 2011, of the 105 people shot by police, 42 per cent had a mental illness.^[7]
• A 2013 inquiry by the Senate Legal and Constitutional Affairs References Committee also found that people who interact with the criminal justice system often have: high levels of hearing impairment, cognitive disabilities, acquired brain injury, mental illness and language impairment. ^[8]

The evidence also suggests that it is women, children, Aboriginal and Torres Strait Islander people, and people from a culturally and linguistically diverse background with disabilities, who are even less likely to have equitable access to justice.

• Ninety per cent of women with intellectual disabilities have been sexually abused.^[9]
• According to the Survey of Disability, Ageing and Carers (SDAC) conducted by the Australian Bureau of Statistics (ABS) in 2012, Aboriginal and Torres Strait Islander people were 1.7 times more likely as non-Indigenous people to be living with disability.^[10] The rate of imprisonment for Aboriginal and Torres Strait Islander prisoners was 15 times higher than the rate for non-Indigenous prisoners at 30 June 2013, which was consistent with 2012.^[11]

The report identified five key barriers which limit or prevent access to justice for people with disabilities.

The first barrier concerned programmes, assistance and other community supports addressing violence, prevention and disadvantage, which may not be readily accessible to those with disabilities.

The second barrier dealt with the supports people may need, to participate in the criminal justice process.

• In an anonymous submission to the Commission, it was noted when deaf people go to the police station, their request for an interpreter is commonly denied. An example was given of an incident where two police officers attended a deaf couple’s house and expected the deaf couple’s child to interpret for them. The submission noted that “It is very inappropriate to use family members as interpreters, even more so to use children, who should not be exposed to adult situations and conversations such as Police matters.”^[12]
• Another submission observed that while children under the age of 16 years old are permitted to give their statement via audio or video taped evidence, no such opportunity exists for those who are over 16 years of age but have an impaired cognitive functioning that is similar to that of a 12-year-old.^[13]

The third barrier concerned negative attitudes and assumptions about people with disabilities, which often result in us being viewed as unreliable, not credible or not capable of giving evidence, making legal decisions or participating in legal proceedings.

The fourth barrier dealt with accommodation and programmes for people deemed 'unfit to plead'. These people are often detained indefinitely in prisons or psychiatric facilities, without being convicted of a crime.

• In 2014, the Commission conducted an inquiry into the case of four men with intellectual and cognitive disabilities who had been held for many years in a maximum security prison in the Northern Territory. Each complainant had been found unfit to stand trial or found not guilty by reason of insanity. For two of these men, if they had been found guilty, they would have received a sentence of 12 months. Instead they were imprisoned for four and a half years and six years respectively.^[14]
• In the Commission’s report on this inquiry, it was noted that with respect to one of the men, the impact “of custody in a maximum security prison was severe. Chief Justice Martin found that [he] was unable to live under conditions in a prison where he can associate with other prisoners...he was isolated in a small single cell and the opportunities for him to be permitted outside this cell were restricted to two or three hours per day.”^[15]

The last barrier we identified concerns prisoners. Supports and adjustments may not be provided to prisoners with disabilities so that they can meet basic human needs, and participate in prison life. This can result in delays and difficulties exiting prison, or exiting with successful chances of re-integration.

These barriers lead to breaches or potential breaches of Australia’s human rights obligations under a number of international treaties and conventions. These would include among others the Convention on the Rights of Persons with Disabilities, the Convention Against Torture and in the cases of multiple discrimination, the Declaration on the Rights of Indigenous Peoples, Convention on the Elimination of all Forms of Discrimination against Women and other instruments.

Not only is there a human rights imperative to ensure equality before the law, there is also a strong economic imperative. Cost-benefit analyses indicate significant savings for governments when support is provided early, and diversion options from the criminal justice system are available. For every dollar spent on diversion between $1.40 and $2.40 in government costs is saved^[16] – big money when the Australian community spends $11.7 billion annually on the criminal justice system.

But more than any figure or statistic I can quote, it goes against our moral and social conscience as society that Australians with disability should be denied the opportunity to participate equally and be treated with dignity and respect, whether they be victims, offenders, witnesses, jurors, or participants in the criminal justice system.

Call for Disability Justice Strategies

Since criminal justice is ultimately a matter for the states and territories, the Commission recommended in its report that each jurisdiction in Australia develop a Disability Justice Strategy. It was recommended that such strategies should, in ways that are relevant and appropriate to the particular characteristics of the jurisdiction, address a core set of principles and include certain fundamental actions.

The first principle was about ensuring the right of people with disability to appropriate communications support. Communication is the cornerstone of a person with disability’s participation in the justice system and essential to their personal autonomy and decision-making.

• In a recent inquiry into Equality, Capacity and Disability in Commonwealth Laws, the Australian Law Reform Commission encouraged the move towards ‘supported decision-making’ recognising the equal right of people with disability to express their will and preferences and be supported, where such support is needed. ^[17]
• Actions that could be taken to improve communication and supported decision-making could include providing access to an interpreter service, communication support worker or hearing assistance. Conditions of bail, bonds and restraining orders should also align with the person’s capacity to comply and be communicated appropriately.

Other principles outlined in the report covered:

• Early intervention and wherever possible diversion into appropriate programs.
• Increased service capacity and appropriately resourced support.
• Effective training addressing the rights of people with disabilities and appropriate responses to violence and abuse.
• Consultation with people with disability and involvement as active partners in the development, implementation and monitoring of relevant policies and programs.
• Finally, specific policy and legal measures to address the intersection of disability and gender to achieve appropriate responses.

A number of states and territories acknowledged the Commission’s findings and have developed Disability Justice Strategies or other initiatives. These include among others:

• The Government of South Australia, which has developed a Disability Justice Plan 2014-2017.^[18]
• The NSW Department of Justice has a Disability Inclusion Action Plan 2015–18^[19] and Disability Strategic Plan 2014–16.^[20]
• In Tasmania, a Steering Committee and Community Reference met for the first time this year to discuss the development of a Disability Justice Strategy for Tasmania. Further meetings will take place through 2016 and it is anticipated the draft Disability Justice Strategy for Tasmania will be presented to the Attorney-General in early 2017.^[21]

There is more to do

However, as the cases of Rosie Ann Fulton, Marlon Noble and others illustrate, it is clear that we still have a lot of work to do.

Recently a case has been referred to the UN Human Rights Council involving the treatment of an intellectually disabled Aboriginal man, who had been repeatedly sedated and strapped to a restraint chair in the maximum security wing of an Alice Springs prison.

Ensuing revelations about the shocking treatment of juveniles in the Don Dale Youth Detention Centre have prompted the Prime Minister to set up a Royal Commission into the Child Protection and Youth Detention systems of the Northern Territory.^[22]

From time to time, high profile cases such as these come to our attention. We are shocked, we respond, and at times some intervention or reprieve follows.

But how many more stories are left unheard?

It is estimated that there are at least another 30-40 cases of people with intellectual disability being detained in the Northern Territory without conviction.

And what of that victim of sexual assault who was unable to communicate her story to the police because of her disability? The person with brain injury who could not understand the complicated language of the court and his bail conditions, moreover comply? And that woman who is deaf who could not participate in a jury because no Auslan interpreting was made available to her?

There is clearly a lot more we have to do to improve the situation of people with disability, everyday Australians, who come into contact with the criminal justice system. This is where Disability Justice Strategies and other systemic improvements come into play.

Systemic change must occur in the criminal justice system and this must be done in consultation with people with disability.

I would like to take this opportunity to recognise and commend the legal services, disability support workers, guardians, carers, peak bodies and advocacy groups who work tirelessly to provide support and assist people with disability to navigate the justice system. Amidst resource, time and funding pressures, these dedicated individuals and organisations are leading the way in this battle for access.

The bigger picture

It is also important to see these issues in context.

The criminal justice system is just a window into the broader issues of disadvantage, discrimination and exclusion that people with disability and other vulnerable groups face every day in Australia. Issues which I know would not be foreign to Reverend Costello and many of you here today. Here is a brief picture:

• One in five people in Australia has a disability, that’s 4.3 million Australians.^[23]

• The World Health Organisation and World Bank Group have reported that people with disabilities are more likely to experience poverty, live in poor quality or insecure housing and have low levels of education. They are often socially isolated, with fewer opportunities to take part in community life.^[24]

• Australia ranks lowest among Organisation for Economic Co-operation and Development (OECD) countries for the relative income of people with disabilities.^[25]

• Overall, employment rates for people with disabilities remain low, with workforce participation at around 54 per cent compared to 83 per cent for people without a disability. Initial results from the 2015 ABS Survey of Disability Ageing and Carers indicate that these figures have remained steady since 2012.^[26]

• In 2014-15, the Commission received 3,529 enquiries and 742 complaints about disability discrimination. More than a third of enquiries (35.4%) and complaints (41.0%) were in the area of employment.

Equality before the law and access to justice is not the sole burden of the state governments, police, the courts, disability services. It is our collective responsibility as Australians to ensure that the fundamental human right of equal access to justice is not denied to those of us with a disability in Australia.

As Disability Discrimination Commissioner, my proposed priorities, based on initial consultations and reviews, will be: employment, education, housing, NDIS and criminal justice system. There are of course many other areas of life where discrimination against people with disability is prevalent, however resources and time preclude me from taking on a wide range of issues.

I look forward to working together with all of you to build pathways to justice in our criminal systems. But more than that, pathways to inclusion for people with disability in our communities. To quote Reverend Costello in closing: “Ultimately, we have got to co-operate for our common destiny”.

Thank you.

^[1] Tom Maddocks, Rosie Anne Fulton: System has 'failed' intellectually impaired NT woman (1 July 2016), ABC News Online. At http://www.abc.net.au/news/2016-07-01/carer-says-system-has-failed-rosie-fulton/7560532 (viewed 8 September 2016).
^[2] Committee on the Rights of Persons with Disabilities, Views adopted by the Committee under article 5 of the Optional Protocol, concerning communication No. 7/2012 (23 August 2016). At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD/C/16/D/7/2012&Lang=en (viewed 26 September 2016).
^[3] Ibid, page 16.
^[4] Ibid, page 15.
^[5] Statewide Steering Committee to Reduce Sexual Assault, Office of Women’s Policy, Department for Victorian Communities, Study of Reported Rapes in Victoria 2000–2003: Summary Research Report (2006), p 16.
^[6] University of New South Wales and PwC, People with mental health disorders and cognitive impairment in the criminal justice system: Cost-benefit analysis of early support and diversion (2013) p 4.
^[7] Australian Institute of Criminology, Police shootings of people with a mental illness Research in Practice No. 34 (2013). At http://www.aic.gov.au/publications/current%20series/rip/21-40/rip34.html.
^[8] Legal and Constitutional Affairs References Committee, The Senate, Value of a justice reinvestment approach to criminal justice in Australia (2013) p 27. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/justicereinvestment/report/index (viewed 15 September 2016).
^[9] VicHealth, Disability and health inequalities in Australia (2012), p 8.
^[10] Australian Bureau of Statistics, Aboriginal and Torres Strait Islander People with Disability (2012). At http://www.abs.gov.au/ausstats/abs@.nsf/productsbytopic/176B7899CCE3B173CA257D9E00112463?OpenDocument (viewed 9 September 2016).
^[11] Australian Bureau of Statistics, Prisoners in Australia, 2013, Aboriginal and Torres Strait Islander Prisoners (2013). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4517.0main+features62013.
^[12] Australian Human Rights Commission, Access to justice in the criminal justice system for people with disability- submissions received, (2013), submission 3. p.1. At https://www.humanrights.gov.au/our-work/disability-rights/access-justice-submissions (viewed 15 September 2016).
^[13] Australian Human Rights Commission, Access to justice in the criminal justice system for people with disability- submissions received, (2013), submission 8. At https://www.humanrights.gov.au/our-work/disability-rights/access-justice-submissions (viewed 15 September 2016).
^[14] KA, KB, KC and KD v Commonwealth of Australia [2014] AusHRC 80.
^[15] KA, KB, KC and KD v Commonwealth of Australia [2014] AusHRC 80, [264]-[265] (citation omitted).
^[16] McCausland, R. & Baldry, E. People with mental health disorders and cognitive impairment in the criminal justice system: Cost-benefit analysis of early support and diversion (August 2013), At http://www.humanrights.gov.au/our-work/disability-rights/publications/justice-reinvestment-people-disability-could-save-millions (viewed 14 September 2016).
^[17] Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Summary Report (August 2014). At https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_124_summary_report_whole_pfd_.pdf (viewed 15 September 2016).
^[18] Government of South Australia, Disability Justice Plan 2014-2017 (2014), The Attorney-General’s Department. At http://www.agd.sa.gov.au/initiatives/disability-justice-plan (viewed 15 September 2016).
^[19] NSW Government, Disability Inclusion Action Plan. (2015). At http://www.arts.nsw.gov.au/wp-content/uploads/2015/12/DeptofJustice-DIAP2015.pdf (viewed 16 September, 2016).
^[20] NSW Government, Disability Strategic Plan 2014-2016. (2014). At http://www.correctiveservices.justice.nsw.gov.au/Documents/Disability-Strategic-Plan-2014-2016_Online_final.pdf (viewed 16 September, 2016).
^[21] Equal Opportunity Tasmania, Disability Justice Strategy for Tasmania Project meetings, 22 March, 2016. (2016). At http://equalopportunity.tas.gov.au/__data/assets/word_doc/0009/342459/16_03_23_DJST_SC_and_CRG_communique.DOCX.docx. (viewed 16 September, 2016).
^[22] Prime Minister of Australia, Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory (28 July 2016), Media Release. At https://www.pm.gov.au/media/2016-07-28/royal-commission-child-protection-and-youth-detention-systems-northern-territory (viewed 12 September 2016).
^[23] Australian Bureau of Statistics, Disability Ageing and Carers, Australia: First Results, 2015 (29 April 2016) 4430.0.10.001. At http://www.abs.gov.au/ausstats/abs@.nsf/0/56C41FE7A67110C8CA257FA3001D080B?Opendocument (viewed 9 September 2016).
^[24] World Health Organization and World Bank Group, World report on disability (2011), p 263.
^[25] Organisation for Economic Co-operation and Development, Sickness, disability and work: Keeping on track in the economic downturn – Background paper (2009), p 34.
^[26] Australian Bureau of Statistics, Disability Ageing and Carers, Australia: First Results, 2015 (29 April 2016) 4430.0.10.001. At http://www.abs.gov.au/ausstats/abs@.nsf/0/56C41FE7A67110C8CA257FA3001D080B?Opendocument (viewed 9 September 2016).