What is the Disability Justice Strategy?
The Disability Justice Strategy is a ten-year plan which aims to ensure people with disability in the ACT have equal access to justice. It is part of the ACT Government’s vision for an inclusive society that gives everyone the chance to participate in community life and leaves no-one behind.
The plan is underpinned by the following principles:
- equality before the law and access to justice are fundamental human rights (as expressed in Articles 12 and 13 of the Convention on the Rights of Persons with Disability (CRPD) and section 8 of the Human Rights Act 2004(ACT))
- people with disability are significantly disadvantaged members of society in being able to access justice
- an ACT justice system which provides equal access to justice for people with disability will be a better justice system for everyone.
Who is it for?
The Disability Justice Strategy is for:
- people with disability, their families and carers — to support the right to equality before the law and access to justice
- the justice system — to help the system build capability to provide a better response to people with disability including through the provision of reasonable adjustments
- the service system — to assist the service sector identify the needs of people with disability, recognise that early support can prevent future contact with the justice system, and promote the creation of services which prevent, reduce and break the cycle of contact with the justice system.
People with disability are those who have ‘long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. (CPRD)
The justice system is the combination of courts, tribunals and legal processes that deal with criminal, civil and other legal issues.
“We just want access to justice like everyone else.”
The service system is the wide range of human and legal services that engage with people with disability such as health, education, housing, disability services (including advocacy services), regulatory services, police, and legal advice and representation.
Why is it needed?
In the ACT, there are approximately 62,000 people who identify as having a disability. While we do not have clear ACT data, we know from national and international research that:
- people with disability are over-represented in the criminal justice system and are estimated to constitute up to 50 per cent of detainees
- forty-nine per cent (49%) of women with intellectual disability report experiencing sexual violence
- people with disability are 10 times more likely to be subject to violence
- people with disability are 2.2 times more likely to have legal issues and 1.4 times more likely to be victims of property crime
- people with disability have the greatest increased occurrence of legal issues of any disadvantaged group and less satisfactory resolution of legal issues.
This data shows that people with disability face a range of disadvantages which lead to an increased level of contact with the justice system and a greater level of legal need than a person without disability. In fact, of all the groups of people in society who are disadvantaged it is people with disability who experience the greatest occurrence of legal issues including: accidents; consumer issues; credit/debit; crime; employment; family; government; health; housing; money; personal injury and rights.
These legal issues often occur because of the compounding disadvantage experienced by people with disability including: poverty; poor educational outcomes; isolation; poor connections; poor health; reduced life expectancy; and increased risk of being subject to violence and crime. There are a range of ACT Government strategies under development or in the early stages of implementation which seek to address some of these areas of disadvantage early. These initiatives include: the Blueprint for Youth Justice 2012–22 (revised); Early Support by Design; the Future of Education: An ACT Education Strategy for the Next Ten Years; a Charter of Rights for Victims of Crimes; the Early Childhood Strategy; the Housing Strategy; the Family Safety Hub; Justice Reinvestment; and Building Communities, Not Prisons.
The Disability Justice Strategy acknowledges and supports the invaluable role these initiatives will play in addressing compounding disadvantage before it leads to contact with the justice system. The strategy’s role is to focus on improving access to justice for people with disability who are engaged with the justice system.
The two key initiatives being led by the Education Directorate, development of a territory-wide Early Childhood Strategy and implementation of the Future of Education ten-year roadmap of reform, align neatly with the Disability Justice Strategy. The Early Childhood Strategy, and the rollout of the universal access to preschool for three-year-old children, will support earlier identification of disability through earlier access to preschool so these children receive the adjustments needed to support their effective engagement with learning. A focus on more effective transitions for children from early childhood education and care to preschool will also support better information sharing in relation to their adjustment needs, enabling coordinated and responsive supports. As children with disability move into their formal years of schooling, a greater focus on inclusion, student wellbeing and strong communities for learning through the Future of Education Strategy will support improved outcomes for all children and young people.
The Australian Human Rights Commission’s report Equal before the Law: Towards Disability Justice Strategies(2014) states that there are five barriers experienced by people with disability who seek access to justice.
- Community support, programs and assistance to prevent violence and disadvantage and address a range of health and social risk factors may not be available to some people with disabilities.
- People with disabilities do not receive the support, adjustments or aids they need to access protections, to begin or defend criminal matters, or to participate in criminal justice processes.
- Negative attitudes and assumptions about people with disabilities often result in people with disabilities being viewed as unreliable, not credible or not capable of giving evidence, making legal decisions or participating in legal proceedings.
- Specialist support, accommodation and programs may not be provided to people with disabilities when they are considered unable to understand or respond to criminal charges made against them (‘unfit to plead’).
- Support, adjustments and aids may not be provided to prisoners with disabilities so that they can meet basic human needs and participate in prison life.
The aim of the Disability Justice Strategy is to address these barriers because they mean that often the people with greatest need are not able to access justice in a fair and equitable way. The removal of barriers will require cultural change and systemic improvements in the justice system.
 Human Rights Watch 2018, I Needed Help, Instead I Was Punished: Abuse and Neglect of Prisoners with Disabilities in Australia.
 Australian Bureau of Statistics 2016, Personal Safety Survey 5.
 Emerson, E. et al, Physical Violence and Property Crims Reported by People with and without Disability in New South Wales 2002–2015, University of Sydney, Centre of Disability Research and Policy.
 Law and Justice Foundation of NSW 2012, Legal Australia–wide survey legal needs in Australia.
 Law Council of Australia 2018, The Justice Project Final Report Part 1 – People with Disability p. 10.
 Law and Justice Foundation of NSW 2012, Legal Australia-Wide Survey, Legal Need in Australia.
What needs to change?
Table 1 provides examples of shifts in the justice and services systems that would address the barriers and change the experiences of people with disability
Achieving shifts in the justice and services systems will create a range of social and economic benefits including:
- preventing legal issues from developing will minimise contact with the justice system
- meeting the legal needs of people with disability early in their lives and early in the life of the issues will avoid the stress and expense of proceedings in courts and tribunal
- swifter resolution of legal issues and earlier intervention in the circumstances surrounding those legal issues will avert the recurrence of contact with the justice system
- making the justice system fit for purpose for people with disability will make the justice system more accessible for everyone
- the justice system will be truly the service of ‘last resort’ leading to reduced costs.
It is important to note that the range of disadvantages experienced by people with disability are best addressed early in the life of a person with disability, as well as early intervention in the development stages of legal needs will lead to better outcomes. If the human services system works effectively to identify needs and provide supports at an early stage this can work to reduce the level of future contact with the justice system.
How has the strategy been developed?
People with disability in the ACT have clearly stated a need for equal access to justice and the ACT Government responded through a commitment to a Disability Justice Strategy. The development of the strategy has been a collaboration between the Community Services and the Justice and Community Safety Directorates (the Disability Justice Strategy Team) guided by the Disability Justice Reference Group. The membership of the reference group includes people with disability, lived experience of the justice system, and representatives from government and non-government organisations across the justice, disability and human services sectors.
Public consultation took place through the ACT Government’s Your Say webpage, through online surveys supported by discussion papers and four public conversations held in a variety of venues across Canberra. The Disability Justice Strategy team also met with key stakeholders across the disability and justice sectors, and members of the public individually. These conversations, together with research conducted by the Disability Justice Strategy team, have informed the development of the Disability Justice Strategy. The What We Heard Report and discussion paper can all be accessed at YourSay website
Further detail can be found in Towards Disability Justice for the ACT which discusses what we know about the issues faced by people with disability, what we heard during consultations, and suggestions for action.
Table 1 State of the ACT justice and services systems
FROM – Current state
TO – Future state
People with disability are not always able to receive legal information in accessible ways and have their rights upheld
Legal information is accessible and available across all areas of legal need and people with disability understand their rights
Limited awareness and understanding in the justice system of the needs of people with disability
Organisations and workers understand the needs of people with disability and are given the tools to make reasonable adjustments for those needs
People with disability are often invisible in the justice system because they are not identified
There are multiple opportunities to identify the needs of people with disability in the justice system
Services are disjointed with gaps in service provision and few reasonable adjustments are made
Services are informed and skilled and provide coordinated and responsive supports to people with disability
People with disability are over-represented in the justice system
Services and supports are in place early to divert people with disability away from contact with the justice system
Data gathering, and information sharing is limited
Services ask if people have adjustment needs and are able to share information, with consent, to allow reasonable adjustments to be made throughout the system and to support improved data collection for analytical purposes