4 Actions and statements of principle

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The Commission considers that each jurisdiction in Australia requires an holistic, coordinated response to the issues raised in this report through a Disability Justice Strategy. The development of a Disability Justice Plan in South Australia provides a good potential model for achieving this.

The Commission considers that any Disability Justice Strategy should address a core set of principles and include certain fundamental actions. These are set out in the following six sections:

Appropriate communications
Early intervention and diversion
Increased service capacity
Effective training
Enhanced accountability and monitoring
Better policies and frameworks

It is not the Commission’s intention to prescribe all the details of an ideal Disability Justice Strategy. Strategies may need to be adapted to suit the circumstances of individual jurisdictions and must be given effect in operational plans devised and owned by those ‘on the ground’. We consider, however, that respect for the human rights, dignity and personal autonomy of people with disabilities compel the following essential matters to be covered by Disability Justice Strategies developed in partnership with people with disabilities

4.1 Outcome: Appropriate communications

PRINCIPLES

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.

If the right to appropriate communications support for a person with disability is denied or ignored then courts should take that into account as a mitigating factor.

Legislation, guidelines and procedures should protect the rights of people with disabilities who need communication supports so they can communicate using their preferred method of communication.

ACTIONS

ACTION 4.1.1 Include formal recognition of the requirement to ascertain the need for an interpreter service, communication support worker or hearing assistance when dealing with Aboriginal and Torres Strait Islander people.

ACTION 4.1.2 Provide access to an appropriate independent communication support worker and interpreter regardless of place of residence or geographical location.

ACTION 4.1.3 Align terms and conditions of bail, bonds and restraining orders to a person’s abilities and capacity to comply.

ACTION 4.1.4 Communicate bail decisions in a format and mode appropriate to the person with disability.

ACTION 4.1.5 Provide support to remind a person of bail conditions and support compliance.

4.2 Outcome: Early intervention and diversion

PRINCIPLES

Early intervention and wherever possible diversion into appropriate programs can both enhance the lives of people with disabilities and support the interests of justice.

Detention is a measure of last resort for all children and young people with disabilities and this is reflected in all legislation, policies and programs.

Where detention is the only sentencing option it is for the shortest appropriate period of time and the support needs of people with disabilities are taken into consideration and addressed appropriately.

Viable community-based alternatives to detention should exist for children and young people with disabilities.

ACTIONS

ACTION 4.2.1 Make available via an e-referral program information that assists police and courts with appropriate diversion and early intervention.

ACTION 4.2.2 Make the e-referral program state- or territory-wide and link it to registered local, state and national support service agencies.

ACTION 4.2.3 Use e-referral programs to provide timely interventions that stream Aboriginal and Torres Strait Islander children with disability to the support services that they need.

4.3 Outcome: Increased service capacity and support

PRINCIPLES

Increased service capacity and support must be appropriately resourced.

A Disability Justice Strategy should coordinate deployment of resources across government community agencies to achieve effective outcomes for people with disabilities.

ACTIONS

ACTION 4.3.1 Design intervention and support services that are :

age-, gender- and disability-sensitive
appropriate for people with disabilities who have communication impairment or complex support needs
culturally appropriate to the needs of women, children, Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse backgrounds with disabilities.

ACTION 4.3.2 Expand Community Visitor's schemes to include a broader range of settings and apply to all people with disabilities.

ACTION 4.3.3 Provide access to advocacy and legal services with disability expertise regardless of place of residence or geographical location.

ACTION 4.3.4 Provide during interviews a sexual assault counsellor, disability support advocate or specialist disability lawyer to support adults and children with disabilities who have been sexually assaulted or experienced violence.

ACTION 4.3.5 Provide to people with disabilities who are lawfully deprived of their liberty the support, adjustments and aids they need to meet basic human needs and participate in custodial life.

ACTION 4.3.6 Establish as a matter of urgency a national Aboriginal and Torres Strait Island disability individual advocacy program.

ACTION 4.3.7 Create an assessment protocol that assists police, courts, and correctional institutions in identifying people with disabilities in order to determine:

the necessity for Independent Communication Support Workers, and Disability Advocate / Support Person
the appropriate supports and services to exercise their legal capacity and enhance health, social and welfare outcomes
the requirement for procedural and age-appropriate accommodations to ensure effective access to justice.

ACTION 4.3.8 Provide pre-court conferencing for children and young people with disabilities.

ACTION 4.3.9 Provide witness support services to people with disabilities,

Action area: police; courts.

ACTION 4.3.10 Aboriginal and Torres Strait Islander people with disabilities are provided with culturally secure assessment, supports and services that promote full and effective participation in society and a life with dignity.

ACTION 4.3.11 Adopt individual case management for prisoners/detainees with disability, including through prison in-reach services provided by community organisations, to provide education and support (pre- and post-release) to assist re-integration into the community and reduce offending behaviour.

ACTION 4.3.12 Make available quiet rooms for people with disabilities to wait, meet or for break times in court.

ACTIN 4.3.13 Sentencing for unpaid fines should involve the exercise of discretion, taking into account the high incidence of poverty among people with disabilities.

4.4 Outcome: Effective training

PRINCIPLES

Effective training should address the rights of people with disabilities and prevention of and appropriate responses to violence and abuse, including gender-based violence.

People with disabilities and independent advocacy and legal services with gender and disability expertise should be involved in the development and delivery of education and training to service providers and to people with disabilities

ACTIONS

ACTION 4.4.1 Develop and deliver staff training that:

improves responses and attitudes of staff
addresses the impact of intersectional experiences of disability, gender and violence.
emphasises the rights of people with disabilities to make their own decisions, with support if necessary, and that those decisions deserve respect.

ACTION 4.4.2 Provide to people with a disability, their families and carers appropriate education and information, in a culturally competent manner, so they are confident in using the service system and can acquire the ‘inside knowledge’ that makes a system work.

4.5 Outcome: Enhanced accountability and monitoring

PRINCIPLES

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
raise awareness of the rights of people with disabilities
prevent and respond to violence against people with disabilities
improve access to supports and services in the community, in particular to prevent disadvantage and address health and social risks.

ACTIONS

ACTION 4.5.1 Ensure people with disabilities are represented on relevant governance and advisory boards.

ACTION 4.5.2 Include transparent, effective and culturally appropriate complaints handling procedures.

ACTION 4.5.3 Implement a transparent independent mechanism to monitor the use of restraint and seclusion of people with disabilities in all settings, with a view to recording and minimising the use of these practices. When the circumstances justify the use of restraint and seclusion safeguards must in place and reported.

4.6 Outcome: Better policy and frameworks

PRINCIPLES

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.

Disability Justice Strategies should be linked to the National Disability Strategy and the National Disability Agreement

ACTIONS

ACTION 4.6.1 At every stage of the criminal justice system, recognise the importance of providing procedural and age-appropriate accommodations to people with disabilities.

ACTION 4.6.2 Recognise that failure to provide necessary accommodations to a person with disabilities can create a legitimate mitigating circumstance that a court should consider.

ACTION 4.6.3 Where a person who has been found unfit to plead is to be held in detention, demonstrate that all reasonable steps have been taken to avoid this outcome.

ACTION 4.6.4 Require chief executives of relevant agencies to report every 2 years to the Premier and the Premier’s Disability Advisory Council in relation to access to justice for people with disabilities in the criminal justice system.

ACTION 4.6.5 All criminal justice agencies monitor and evaluate:

participation rates by people with disabilities as victims of crime, witnesses, accused, defendants, offenders and jurors in all parts of the justice system
provision of adjustments and supports on critical indicators including age, sex, gender, disability, race, type of violence.