Published on February 27, 2014
Equal Before the Law Australia Human Rights Commission 2014 ncid.org.au !1
In 2013 the Australian Human Right Commissioner (Graeme Inness AM) and his Department travelled around Australia collecting stories on how people with a disability are treated in the Justice System. ! ! They found that there are several barriers to accessing justice for people with a disability in Australian. ! Based on this they have called for a National Disability Justice Strategy to be developed using Human Rights Principles. http://www.humanrights.gov.au/sites/default/files/document/publication/2014_Equal_Before_the_Law.pdf ncid.org.au Equal before the law 2014 !2
Justice is a State/ Territory responsibility in Australia, therefore the Commission has not made recommendations in this report. Rather it is calling all Justice Agencies to adopt the Disability Justice Strategy. The report also acknowledges that many States/Territories have introduced changes which are designed in increase access to justice for people with a disability. ncid.org.au Equal before the law 2014 !3
NCID has had an interest in how People with an Intellectual Disability become engaged in the criminal justice system for the past three decades. ! ! In working alongside people and their families NCID has witnessed the barriers which exist to obstruct justice for a person with an intellectual disability and we are pleased that the Human Rights Commission made this an area of study in 2013. ! ! NCID supports the formation of a Disability Justice Strategy to ensure that in future people with a disability can access justice on the same basis as any Australian citizen. ncid.org.au Equal before the law 2014 !4
The Australian Human Rights Commission conducted a wide-ranging consultation to assess how people with disabilities and people who work in the criminal justice system cope with the following five barriers: ! BARRIER 1. 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. BARRIER 2. 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. BARRIER 3. 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. BARRIER 4. 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’). BARRIER 5. 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. (Page 8) ncid.org.au Equal before the law 2014 !5
The Commission decided that a Disability Justice Strategy is required which entails: ! ! 1. Safety of people with disabilities and freedom from violence 2. Effective access to justice for people with disabilities 3. Non-discrimination 4. Respect for inherent dignity and individual autonomy including the freedom to make one’s own decisions 5. Full and effective participation and inclusion in the community ! ncid.org.au (page 9) Equal before the law 2014 !6
These outcomes reflect the understanding that people with disabilities: ! • have the right to be heard and informed • should feel safe and be free from violence so that they can live in safety and with dignity • should be able to access the support, services and programs they need to prevent disadvantage and address a range of health and social risk factors • are able to easily identify and access appropriate high quality services if they experience violence, or feel they are unsafe and at risk of experiencing violence • are treated with dignity when they begin or defend criminal matters, or participate in criminal justice processes, and the legal system provides the modifications, supports and aids needed to participate • when lawfully deprived of their liberty are treated humanely and provided with supports, adjustments and aids needed to participate in prison life and transition successfully to the community. ! ncid.org.au (page 9) Equal before the law !7
Page 10 of the report outlines the human rights principles that need to underpin a Disability Justice Strategy: ! ! Participation Everyone has the right to participate in decisions that directly affect their lives in any way, including through the development of law, policies and projects. People with disabilities, particularly women, children and Aboriginal Torres Strait Islander people with disabilities, must be consulted in the development and implementation of legislation, policies and procedures relating to access to justice in the criminal justice system and participate in decisions that affect their lives. ! Accountability Everyone has a right to know how their human rights are affected and by whom. This requires proper accountability and transparency from Government. Governments, police, courts, correctional services and disability service providers, amongst others, have a responsibility to uphold the human rights of people with disabilities and are clearly identified. Monitoring, remedies and effective preventative measures must be available to people with disabilities. ncid.org.au Equal before the law !8
Equality Everyone has the right to be equal. This requires that attention is paid so that laws, policies and projects benefit everyone and will result in substantive equality for everyone. A human rights approach requires the elimination and prevention of discrimination in the criminal justice system for people with disabilities, including addressing attitudinal barriers and disadvantage when gender and other issues intersect. ! Empowerment Everyone has the right to claim their human rights. Empowerment is the difference between wanting to act and being able to. Education, training and establishing structures that enable decision making to be shared are important. Meaningful participation and consultation requires people with disabilities to be provided with the support and aids they require, including communication that is accessible and appropriate. ncid.org.au Equal before the law !9
The report documents the barriers to justice for people with a disability exist in all areas of the Justice System from contact with police, in legal and court proceedings and in the prison system. ! They also note that there have been efforts around Australia to address barriers to justice for people with an intellectual disability. ncid.org.au Equal before the law !10
! ! The finding of the report is that there are six areas which need to be improved in the justice system broadly for people with a disability to access equity before the law. These are ! • Appropriate communications • Early intervention and diversion • Increased service capacity • Effective training • Enhanced accountability and monitoring • Better policies and frameworks ! ncid.org.au These are discussed on pages 31-37 of the report Equal before the law !11
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