The Justice System - whole of System Issues
Data, personal information and privacy
Service models and support workers
Community legal education and information
Awareness raising and training for the system
Communication and intermediaries
Data, Personal Information and Privacy
What we know
Data on the involvement of people with disability in the ACT Justice system, whether criminal or civil, is scarce [27]
The primary reasons for this are:
- lack of systematic collection and sharing of such information by institutional stakeholders
- people’s reluctance to self-identify as having a disability for a range of personal and systemic reasons
- limited points at which data can be collected about a participant’s legal issues and proceedings.
This is not an issue for the ACT alone. Other jurisdictions also do not have systemic institutional data on the extent of interaction of people with disability with the justice system and have sought to overcome this through targeted research.
The data that is collected by non-government stakeholders, for example Legal Aid ACT and Canberra Community Law, is done on a self-reporting basis and therefore may underrepresent the number of people with disability to whom they provide services.
The IT systems of the justice stakeholders are not connected and cannot share information from one actor to another. IT systems are also not designed to collect and report on information in relation to disability, whether self-reported or otherwise identified.
Should a person indicate they have a disability there is no current mechanism by which that person’s details and story could travel with them across the system. They are required to self-identify and explain at every point in the system.
Information collection and exchange appears to be better in the health and education sectors but there are considerable limits on how such information is shared with the justice sector.
What we know is that if you can’t identify people’s needs in a system, their needs will not be met, and there is no motivation to accommodate their needs. Without identifying a requirement there is no accountability to meet a need.
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What we heard
People with disability indicated that they wanted the system to better coordinate its interaction with them and in particular to ensure that, where appropriate, they only have to tell their story once and to have the information travel with them in their interactions with the justice system. Numerous examples were relayed as to the lack of recording of needs, such as necessary reasonable adjustments, which meant that the needs of people with disability were not met and service delivery was compromised. The heavy reliance on written material without regard to the recipient’s needs and despite requests and reminders as to their needs featured heavily in consultations.
Frustration was expressed by some as to why the system did not record key information and share it with others, often resulting in errors and misunderstandings between entities which could have been avoided if they had shared information appropriately. When asked if they had ever been given the option of agreeing to share their information with other organisations by consent participants indicated they were never asked.
In consultation with justice institutions, they highlighted that current IT systems were not designed to collect information on disability per se and changes to systems would be expensive and take some time. It was further highlighted that they were often dependant on people self-identifying as having a disability. It was acknowledged that changes to IT systems may assist in data collection but would not necessarily resolve the portability of personal information.
We heard:
"We want continuity and consistency."
Consultation participantJustice entities also raised privacy concerns about sharing personal information. However, this may be due to excessive caution rather than legal barriers to sharing. It is noteworthy that there are few information sharing protocols or memoranda of understanding in relation to people with disability and the justice system.
What could we do?
Ideally, there would be a simple, cost-effective solution for collecting a person with disability’s personal information at any point of contact with the justice system, which they could then choose to have shared with other entities. Such a solution would allow a person’s information, needs and wishes to travel with them across the system, with additional information included at each point and the system acting to join the dots. Such a solution would also allow for data analysis to develop a systemic view of interaction with the justice system by people with disability.
Currently, there does not appear to be such a solution on the horizon, although this should remain under review as technology changes and new opportunities become available. However, there are a range of potential measures which could be pursued that may over time improve both the collection of data and the portability of personal information to improve service delivery. These include:
- Better case management within justice entities to ensure a person’s disability needs and reasonable adjustments are recorded and acted upon. By using existing system flags and note functions, better service can be achieved. With increased use of disability justice workers/ liaison officers within justice entities, improved case management may also be achieved and result in better sharing of information between entities.
- There are also emerging opportunities to improve case management IT functionality within ACT Government with the introduction of the Resolve case management system in the ACT Human Rights Commission, in addition to improved data analysis capabilities, which may lay the ground work for expansion of some form of case management function to all justice entities in touch with people with disability.
- Targeted research which focuses on critical points in the system or the lives of people with disability to identify needs and the scope of issues. They could include incident studies, point-in-time assessment, surveying and sampling. For example, legal needs surveying is the only way to assess unmet legal needs. Another opportunity may be expanding any future Alexander Maconochie Centre Inmate Health Surveys to cover disability in a comprehensive way not just intellectual disability.
- Information sharing protocols which allow entities to share vital information obviating the needs for people with disability to repeat their stories, and ensuring that where they come into contact with another justice entity their needs and reasonable adjustments are already recognised and the new entity can act in a responsive manner.
- Mapping the key contact/intervention points and targeting them for improvements in data collection and personal information collection. For example, the police as the first point of contact with the criminal justice system and entry and exit from incarceration or guardianship applications, are examples of critical intervention points.
- Increase self-identification and self-reporting of disability by implementing measures to help inform people with disability of their privacy rights and how they can consent to the sharing of their information and be confident their information will be appropriately handled.
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Service Models and Support Workers
What we know
Legal professionals, police officers, corrections officers, court staff and other professionals in the justice system are often pressed for time and it
is difficult for them to spend the time to address the adjustment needs of people with disability.
Liaison and support worker models, such as CALD community workers, have been successful in increasing the reach and supports for people with specific needs [28]. A study by the University of Melbourne on appropriate supports for persons with cognitive disability involved in unfitness to plead proceedings found that support workers were critical facilitators of the justice system for the client [29]
The Law and Justice Foundation LAW Survey highlighted the importance of non-legal advisers in providing advice and helping to resolve legal issues for people with disability.
There are a number of emerging service models that enable access to justice for disadvantaged groups, which include health justice partnerships, social worker support models and communities of practice. These models increase outreach, are responsive, free up legal resources by providing support to help resolve whole of life issues as well as provide more time and are more responsive to individual needs.
A number of specialist service models exist which provide support persons or advocacy to assist people with disability to navigate interactions with the justice system. Examples include: interview friend schemes; volunteer court guides; and speciality disability advocacy services, which aim to support the person with disability by both advocating on their behalf and building the individual’s capacity for self- advocacy.
Support persons can also play an important role in:
- coordinating across the system in support of people with disability
- supporting and educating colleagues on the impact of disability and trauma to build a disability and trauma-informed workforce
- providing a central point to advocate for the needs of people with disability from within their organisations.
We heard:
"We are picking people up from the bottom of a cliff and just putting them back up again."
Consultation participant
"We need to build a partnership capability."
Consultation participant
"We need to incentivise collaboration."
Consultation participantSome other jurisdictions have more mature service delivery arrangements to ensure support, advocacy and coordination for people with disability in touch with the justice system, particularly the criminal justice system. These include the:
- NSW Disability Justice Project, which created communities of practice across the state supported by training and awareness programs on specialist topics to assist and inform key workers and issue noticers on how to seek assistance for people with disability
- NSW Intellectual Disability Rights Service, a specific legal service that provides advocacy and support to people with intellectual disability
- Victorian Disability Criminal Justice Service, which provides specific support to persons in the criminal justice system including supervision and support for disability action plans arising from diversion from the criminal justice system [30]
Law Council report [31] findings included that:
- People with disability face a wide range of systemic and structural barriers to accessing justice, such as inaccessible legal information, physical inaccessibility, inflexible court procedures, negative attitudes and stigma towards people with disability, lack of understanding of disability by those who work in the justice system, lack of critical supports at all stages of the justice system, and an under- resourced legal assistance sector.
- The system’s emphasis on expediency, minimising costs and fast resolution of disputes can place additional pressures on people with disability who require adjustments, such as longer appointments, regular breaks in court to maintain concentration or Auslan interpretation.
- Some support services, such as disability advocates and support persons, may be required at every stage of the legal process to enable people with disability to participate in the justice system on an equal basis with others. Other supports, such as accommodation, rehabilitation and diversionary programs, and health and allied health services, play an important role in early intervention and prevention of legal issues and/or diverting people with disability away from the criminal justice system to prevent escalating or re- occurring legal issues.
- Disability advocates and non-legal support persons play an important role in facilitating access to justice for people with disability at all stages of the justice system.
- People with disability required additional non-legal support to navigate the system effectively, such as assistance to fill out forms and attend appointments.
- Lack of support persons or disability advocates to assist people with disability following a period of institutionalisation or imprisonment can increase the risk of recidivism and reduce the prospects of effective reintegration into the community.
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What we heard
We heard:
"Navigating the justice system is very difficult even if you’re disability-aware."
Consultation participant — a father whose adult child has an intellectual disability
"Police are good people but they speak a different language."
Consultation participant
"Volunteers should be working at the art gallery, not at court."
Consultation participant
"Carers feel completely disempowered and know nothing of what people’s rights are."
Consultation participantA consistent issue raised at all public consultations and in targeted consultations was that people with disability and their supporters did not understand what was happening during their interactions with lawyers, police, courts and tribunals amongst others. Central to this was a lack of time, use of technical language that people did not understand and not having a consistent person who would join the dots for them.
When asked what would have made a difference, almost all respondents said someone to explain things, a consistent presence and someone they felt was on their side. Some expressed the view that such support workers should not be volunteers. While acknowledging the enormous contribution of volunteers, it was felt that volunteer arrangements did not recognise the specific knowledge and skill sets necessary to provide appropriate support.
Local ACT examples where doing something differently was seen by peoples with disability and their supporters to be making a difference were:
- Canberra Community Law’s Socio-Legal Practice Clinic where the combination of a social worker with a lawyer was making an important and at times dramatic difference to helping people deal with life issues, avoid homelessness and resolve housing issues.
- Outreach initiatives such as the ACT Civil and Administrative Tribunal undertaking guardianship hearings at hospitals allowing people with psycho-social and mental health disabilities to attend hearings, increasing hearing attendance to approximately 95 per cent, reducing the time between lodgement of an application and a hearing, and where appropriate allowing earlier discharge from hospital.
- The ACT Courts and Tribunal establishing a Courts and Tribunal Assistance Officer who is available to provide information and assistance to people with disability, including reasonable adjustments, to help ensure the courts and the ACT Civil and Administrative Tribunal are accessible.
- Piloting of Health Justice partnerships by Legal Aid and the Women’s Legal Centre with the Family Safety Hub.
- The critical role of the ACT Disability, Aged and Carer Advocacy Service and Advocacy for Inclusion (plus a range of other support organisations) play in providing advocacy and support to people with disability in many instances.
- Koomarri’s Forensic Disability Service to support people with disability with multiple and complex needs with aims including to reduce the risk of re-offending and increase opportunities for community reintegration.
Consultations confirmed that often legal issues went unrecognised and that the critical point of advice/intervention may be a carer, support worker, doctor or teacher. Such ‘issue noticers’ often did not know where to go to seek help and also felt they could not adequately navigate the system themselves. They emphasised the critical importance of key workers within the system to whom they could refer and seek assistance.
Consultation participants also highlighted the importance of having someone on their side— as well as formal supports from the system such as intermediaries. Consistency of support was a strong desire for people with disability.
From our consultations with stakeholders we heard that they would like to do more and provide better services but felt constrained by a lack of expertise, time and a frustration that they had no one to refer people with disability to assist with wider life and communication issues.
In the criminal justice system stakeholders expressed frustration at the difficulty in obtaining disability services that would help to divert or provide services to people with disability who may be offenders or had difficult behavioural issues. It was suggested that the ACT should consider a forensic disability service to provide services to people in such situations. Previously there was a team working within Disability ACT who focussed on the interface between people with complex intellectual disability who were engagement with the justice systems, and provided some training to justice based organisations. This service closed in transition to the NDIS and has not been replaced.
Both the ACT Law Society and ACT Policing noted that they would appreciate a contact point where they could seek advice about disabilities and how to improve their handling of matters.
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What could we do?
Services specifically focused on meeting the justice needs of people with disability appear to be necessary and urgent. Some responses could be implemented quickly and cost effectively, such as:
- organisations establishing disability key workers to support, coordinate and broker on behalf of people with disability
- expanding service models which have been found to work effectively with people with disability and to provide a secure, long-term funding base
- supporting outreach arrangements which put legal service provision together with other services in locations where people with disability can best access those services.
Key workers and a community of practice
The justice system involves a range of stakeholders who interact with one another depending on the circumstances of a client, the type of matter at issue and whether the criminal or civil system or both is involved. This report has highlighted the disjointed experience of people with disability seeking legal redress, particularly when they come into contact with the criminal justice system. The Data, personal information and privacy section (above) also outlines the issues with information not travelling with a person as they move across the justice system. In the longer term there may be ways in which such lack of connectivity can be addressed. In the short term, the likely most effective way to improve responsiveness and connectedness may be to create a network of key workers or a community of practice with disability justice at its core. With the placement of liaison positions within each of the key justice entities combined with a supporting structure, a foundational network could be created to warm refer people from one organisation to another, provide points of contact to assist with navigation, offer a professional support service to fellow key workers and create a mechanism for the resolution of issues on behalf of people with disability within their organisations.
Such a community of practice would provide the necessary key personnel to help their organisations develop training and awareness of disability issues, reform their procedures in order to support reasonable accommodations as well as provide linkages to external support services.
Advocacy and support person role
Given the strong voice of people with disability as to the pressing need for independent support persons, careful consideration could be given to funding over a number of years the key advocacy bodies in the ACT to broker and manage advocacy in justice situations and to evaluate those arrangements to provide an evidence base to support future service funding.
Disability specialist justice service
Larger jurisdictions have the advantage of economies of scale. Standalone service provision can be expensive in a small jurisdiction such as the ACT. However, the ACT has the advantage of size in that personal linkages and the flexibility can help deliver services more responsive to need and without undue overheads. Currently in the ACT there is strong good will and the building blocks for better services to ensure that the legal needs of people with disability are met and, most importantly, that such access to justice can divert people from contact with the criminal justice system. However, these foundations need to be fostered and developed in order to build a responsive and holistic system.
In the medium- to long-term consideration could be given to the feasibility of establishing a formal disability justice service either as a function of government or as a funded service provided by the private/NGO sector. Such a service could provide, as an example, the following:
- coordination of screening and assessment services to the justice system
- case management and support for people with disability in contact with the criminal justice system or at risk of this, for example through homelessness
- consultation services to justice organisations in relation to training, awareness raising and service changes to ensure reasonable adjustments are made
- advocacy and independent support persons to people in need, such as for police interviews or court appearances
- management of volunteer programs to support the justice system
- leading community legal education and information on disability justice issues.
The Disability Justice Strategy could ensure that local services are supported and built whilst also looking at what would be the best longer term services arrangements for the ACT.
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What we know
There is strong evidence that many Australians have limited understanding of their rights, have difficulty identifying legal issues and do not know where to go for advice and assistance. This is even more so for disadvantaged groups such as people with disability [32]. As the Productivity Commission observed ‘a lack of knowledge and capacity contributes to legal issues going unresolved , which in turn can lead to more severe issues in the future’ [33]. The Law Council Justice project identified a lack of legal awareness as an ongoing critical barrier for most disadvantaged groups such as people with disability.
Legal capability comprises three elements:
1. Basic legal knowledge: individuals require the rudimentary legal knowledge to recognise that they have an issue that is legal in nature, that there are potential legal solutions, and where to obtain assistance.
2. Non-legal skills: adequate literacy, language, communication and information processing skills are required to manage a claim/issue and to interact with the legal system.
3. Psychological readiness: individuals need the confidence in the legal system and its various players, as well as self-efficacy, readiness to act and determination to see an issue through [34]
The Productivity Commission identified that community legal education and information could improve legal capability by assisting people to:
- be aware of how the law affects them
- better identify legal issues
- better understand which avenues for recourse are appropriate given the nature
and severity of their legal issue - have the confidence to deal with their issues [35]
A number of studies have highlighted that self-help tools are often an ineffective strategy for people with poor legal knowledge, literacy and communication skills, and people with multiple and complex legal and non-legal needs— characteristics of many people with disability. However, community legal education and information can be critical for a person with disability’s family, carers and supporters as well as those people with disability with good legal capability.
It is also recommended that ‘for disadvantaged groups, less capable groups, legal education and information strategies may be more effective as complementary strategies to connect them with more appropriate forms of service, such as legal advice, minor assistance and representation’ [36].
Information and education can act more as an access strategy than an education strategy, allowing issue noticers in key settings—e.g. accommodation, healthcare, schools— to identify possible issues and to make appropriate referrals or seek assistance.
The lack of legal information in plain English and other accessible formats makes accessing the justice system especially difficult for many people with disability, such as those with visual, hearing, intellectual or cognitive impairment. For many people with disability, legal language can be confusing, difficult to understand and overly technical [37].
What we heard
We heard:
"There are so many websites but no real help."
Consultation participantPeople with disability, their carers and supporters acknowledge that they were frustrated in dealing with the justice system as they did not understand how it worked, how they could obtain accessible information on legal issues or how to get help. Carers and supporters felt poorly served as there was little information available to them. This compromised their capacity to notice issues and seek appropriate resolutions.
Detainees described their incomprehension and fear of what was happening to them in court proceedings, acknowledging that without someone to support them they effectively had no idea of what was happening and why.
Participants in consultations expressed that they did not know what their rights were, how they should be treated and found language too complex.
All sectors of the justice system were noted as needing to develop easy-read materials for distribution and online to explain to people with intellectual disability/cognitive impairments what to expect when they come into contact with the police, what to expect in court/ACAT, how complaints processes work, what community legal centres do, etc. A good example of easy-read materials cited in NSW was the NSW Intellectual Disability Rights Service website
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What could we do?
Based on the views of the community and the available research there is strong evidence of a need to improve the information available to the community on legal issues and the justice system especially for people with disability and their supporters.
Suggestions as to possible initiatives include:
- The use of video material has considerable support to assist people with disability, particularly young people, to understand issues and processes.
- A disability justice website— there was a degree of support for a disability justice website providing up-to-date materials for anyone seeking information on the justice system. An example of such a website is the Irish Criminal Justice Disability Network,.
- Support for existing websites being upgraded to include accessible information and provide links to other resources.
- A plain-English guide for carers who may be supporting people with disability who are in contact with the justice system and people with learning disabilities in the criminal justice system. An example is the guide for carers and learning disability services produced by the English Association for Real Change in March 2016 which provides explanations of legal terms and processes
- A dedicated funding pool to pursue technical innovation to provide information and supports co-designed with people with disability and their supporters.
- A community awareness campaign to overcome stigma and discrimination against people with disability and to inform the public, business and other sectors on the rights of people with disability to equal treatment and reasonable adjustments.
- A public information and outreach campaign for people with disability, their carers and supporters to understand their rights and how to access justice options available to them.
There are positive initiatives on which to build, including the ACT Legal Aid Law Handbook [38] and the improvements the courts are making to their web material on access to the courts and how they work [39]. Legal Aid, Community Legal Centres and Advocacy Groups such as ADCAS and AFI provide community legal education and information. Their efforts could be assisted by focused attention on the specific needs of people with disability supported by government.
The Office for Disability is providing training to a number of justice organisations in the preparation of easy-read material to improve their legal information offerings through the disability inclusion grants.
Until further steps can be implemented as part of the Strategy, a disability justice webpage is being created as part of the ACT Disability Commitment webpage INVOLVE— on to which relevant material will be posted to help inform people with disability, their carers and supporters.
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Awareness Raising and Training for the Justice System
What we know
The legal profession receives little (if any) training on disability and so has limited understanding of the impact of disability and how to make reasonable adjustments for a person’s disability in the context of their work.
Lawyers are often time constrained, are trained to use language that is complicated and technical in nature, and make assumptions about people’s capabilities which reflect the same prejudices and lack of awareness as the general public.
Courts and tribunals are often geared more toward people with a greater degree of legal capability (see explanation on page 24).
A number of jurisdictions have some training for people within the justice system to assist professionals to increase their awareness and responsiveness to people with disability. However, there has been little in the ACT.
A number of jurisdictions have developed aids to assist the profession and the judiciary to increase their knowledge and awareness including bench books, practice directions, guidelines and training material on topics such as capacity, communication, identification of disability and supported decision-making.
The most comprehensive training and awareness raising project reviewed has been the NSW Disability Justice Project which supported a range of workers within the justice and disability sectors to enable people with disability in the justice system.
The piloting of intermediary schemes in a number of jurisdictions has been supported by training and development programs as well as guidelines for participants which are helping to raise understanding of communication needs for people with cognitive and intellectual disability.
Training and awareness raising measures need to extend to the broader justice system and include police, court and tribunal workers and corrections workers.
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What we heard
We heard:
"About one third to half of people being evicted on the day [before the ACT Civil and Administrative Tribunal] have no supports."
Consultation participant
"Police are good people but they speak a different language."
Consultation participant
"We need to understand disability better and have better skills. Our default to behaviour issues is to call the police."
Consultation participantPeople with disability, their carers and supporters frequently raised their frustration at the complex and technical language used by members of the justice system including police, legal professionals, magistrates and judges. It was also expressed that stakeholders within the justice system didn’t appreciate how bewildering and disempowering the system was, and some consumers felt they demonstrated little empathy for people with disability. In addition, consultations identified a lack of understanding that with reasonable adjustment and support, people with disability had capacity to be credible witnesses, express their views and wishes and make decisions of their own.
Members of the legal profession, police, corrections officers, who participated in consultation all expressed a willingness to better support people with disability. Like many others consulted, they also expressed their frustration that they did not always know where to get help to better support people with disability. Many also commented that resource constraints often made it difficult to make the necessary adjustments, such as taking more time to support people appropriately.
Workers in the justice system also indicated that they felt ill-equipped to identify whether a person had a disability and what adjustments should be made. Practical guidance was needed to enable effective communication and identification and to ascertain support pathways as means to help improve their responsiveness to people with disability. In addition, stakeholders saw merit in the role of supporters for people with disability.
Workers in the justice system felt that training was best when integrated into their work. As an example, police spoke positively of initiatives to improve their understanding of people experiencing mental health issues when supported by practical guidance material as to how to use such knowledge in operational situations.
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What could we do?
We heard:
Training needs to bring the unique perspective of how to manage situations and support people.
Consultation participantThe need to improve the understanding and awareness of the justice system of people with disability and to make reasonable adjustments was recognised early in the consultation period and as such steps have been taken to seek to improve the opportunities for training for the justice system in advance of the formal Disability Justice Strategy. Pilot training programs, based on the work of the NSW Disability Justice Project, are being conducted in partnership with members of the justice system. The first program was delivered to new corrections officers in October 2018. Over the coming months additional programs will be piloted for child and youth protection staff as well as on general themes for people from across the justice system— for example, working with young people with disability who are in touch with the justice system.
To achieve systemic cultural change such training and awareness raising measures will need to be provided regularly over time and will need to be an important feature of the future strategy.
Suggestions from consultations and from within the justice system included:
- support for the completion of a capacity handbook by Legal Aid ACT
- possible mandatory continuing legal education for the legal profession on disability
- training and information on how to identify cognitive, intellectual and communication disabilities across the justice system
- an ACT Bench book on disability issues such as fitness to plead, use of communication assistance and supported decision-making
- a continuing, regular focus on disability justice for the system through existing or new forums
- training programs for police, corrections officers, courts staff, youth workers as well as programs on specific themes such as legal capacity.
During the course of research, a number of resources were identified that could be adapted to ACT laws and procedures [40]. With the assistance of the relevant professionals we will seek to develop similar materials for the ACT as part of the Disability Justice Strategy.
An important instrument of cultural change is the process and completion of Disability Access and Inclusion Plans (DAIPs) [41] for justice organisations. In consultations, the majority of justice organisations and agencies expressed their enthusiasm for the development of DAIPs at their agency or directorate. This will assist justice agencies and their staff and members to better understand disability issues and work through how disability can affect a person’s access to their services. The Strategy will seek to ensure that DAIPs become a key part of the journey toward disability justice.
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Communication Assistance and Intermediaries
What we know
One of the fundamental structural barriers to equality before the law and equal access to justice for people with disability is difficulty in communicating with the system. This includes both being effectively understood by the system and understanding what the system needs or identifies. Communication assistance and Intermediary schemes have been piloted and are being implemented in a number of Australian jurisdictions in relation to the criminal justice system. An intermediary scheme has been in place in the United Kingdom for more than ten years.
A registered intermediary scheme could see support provided for people from the first point of contact with the justice system (usually police) through to communication with lawyers, the Director of Public Prosecutions, the courts and beyond.
In response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (see recommendations in the Criminal Justice report) [42] the ACT Attorney-General has committed in principle to implementing an intermediaries scheme for the ACT [43].
All the relevant reports and inquiries on access to justice for people with disability have identified communication difficulties as among the most important barriers to justice. Currently, without intermediaries in the criminal justice process, the court and other justice players do not understand what is required to allow a person to communicate effectively, and evidence obtained from people with disability is not as good as it could be. This results in inadequate outcomes in both the interest of justice as well as people with disability.
The Tasmanian Law Reform Institute in its issues paper Facilitating Equal Access to Justice: An Intermediary/Communication Assistant Scheme for Tasmania (no. 22, May 2016) [44] canvassed options for the introduction of a scheme in Tasmania and noted:
- Intermediaries/communication assistants perform a variety of functions at different points throughout the criminal justice process. They may act as quasi-interpreters, whose role is to reformulate questions into language that people with complex communication needs can understand and where necessary translate those people’s responses to the police and or the court. Additionally, communication assistants/intermediaries may be communication specialists who are able to assess and report to courts on the cognitive abilities of people with complex communication needs, an advisory function. Their reports make recommendations on how best to meet these people’s specific communication needs and they may provide advice to courts and counsel before and during proceedings about the appropriateness of questioning in a general and specific sense. They also facilitate communication at investigative interview and trial.
Intermediaries and communication assistants may also have an interventionist role, intervening in proceedings to prevent inappropriate questioning and advising courts and questioners about appropriate forms of questions.
The South Australian scheme began with the Statutes Amendment (Vulnerable Witnesses) Act 2015, which incorporated major changes to the Evidence Act 1929. The reforms followed a decision in the state to discontinue prosecution of a bus driver who was accused of sexually assaulting a number of people with intellectual disability on the basis that they would be unreliable witnesses. The reforms sought to:
- give people, whether victims, witnesses or defendants, with complex communication needs a general entitlement to have a communication assistant present for any contact with the criminal justice system
- minimise the number of times vulnerable witnesses have to recount their experiences by providing alternative measures for their evidence to be presented to the court, including the use of pre-recorded evidence and investigative interviews at trial
- tackle the misconception that disability denotes ‘unreliability’
- enhance the supports available for vulnerable victims, witnesses and defendants, both in and out of court
- allow the evidence of vulnerable witnesses to be taken in informal surroundings
- extend the priority listing of sexual assault trials where the complainant is a child to those where the complainant has a disability that adversely affects their capacity to give evidence.
The Child Sexual Offence Evidence Pilot in NSW commenced on 31 March 2016 and underwent a process evaluation [45] in July 2017. The evaluation found that the strengths and skills of the intermediaries were highly valued. It also found that there was overwhelming support for the objectives of the pilot which are to lessen the stress and duration of court proceedings for child witnesses without unfairly impacting the defendant’s right to a fair trial. A pilot commenced in Victoria on 1 July 2018 offering intermediary assistance to child victims and adults with a cognitive impairment who are either victims in sexual offences or witnesses in homicide matters.
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What we heard
In each of our community consultations there was a strong plea for better assistance to enable people who experience communication difficulties to be confident that they are effectively communicating with the justice system. A particular concern was that people with communication difficulties, including language, cognitive, physical and sensory disabilities, were not treated with respect and were often not listened to, were disbelieved and not seen as being able to provide evidence which would stand up in a court.
There was a strong view that with appropriate supports, such as extra time, regular breaks and intermediaries to help manage questioning and provide advice on communication, people with disability could and should participate in matters. Without such supports they were being denied access to justice.
Examples were given where people with disability were discouraged from reporting, often out of a sympathetic (but perhaps misguided) belief that the process of complaint and evidence taking would be too onerous for the person and matters would not go forward because of the person’s disability. However, examples were also provided where, with appropriate support and time, evidence could be obtained.
Views from the community were that communication supports— such as Auslan interpreting; use of alternative communication devices, support persons, assistance animals, extra time and breaks— should be available as of right. Formal intermediaries should be widely available in adversarial matters such as court and tribunal hearings to assist the courts and tribunal as well as the parties, including the person with disability.
In discussions with justice stakeholders there was general support for an intermediaries scheme for the ACT in criminal matters to ensure that the best evidence could be obtained. Stakeholders recognised that they could be assisted by having expert support to aid communication and to advise on the necessary adjustments to be made to support people with disability.
There was relatively unanimous agreement that such a scheme requires a legislative base and that requirements must be mandated in legislation if it were to be successful in achieving its aims, as well as cultural change.
What could we do?
The ACT Government has committed to exploring the implementation of an intermediaries scheme for the ACT following the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse. The scope and coverage of such a scheme is yet to be determined. The ongoing examination will inform the Disability Justice Strategy.
Other measures to improve communication could include:
- Seeking to expand the pool of Auslan interpreters that can assist in legal matters given the demands of interpreting in such a technical field. There are currently only two local Auslan interpreters with the appropriate professional accreditation for court work in the ACT.
- Education and training for the justice system and key workers in reasonable adjustments that could be made to assist people with disability, such as extended time and use of plainer language.
- Working with all justice organisations to identify actions they need to take to find out ways they can be more responsive to communication needs.
- Inclusion of communication as a key focus area in agencies’ DAIPs.
- Strategies to assist people with disability to alert people to their communication needs.
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Part 2 Chapter 2 - Groups with additions needs and vulnerabilities
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Page updated: 27 Feb 2024