Statutes Amendment (Vulnerable Witnesses) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 30 June 2015.)

The Hon. K.L. VINCENT (15:29): It makes me immensely proud to speak to this bill today and to know that in some small way Dignity for Disability has contributed to improving the justice system in this state for all people with disabilities through consistent and fierce lobbying for what we now know as the Disability Justice Plan.

Not long after I was elected to this place in 2010, I was made aware of horrific cases of alleged abuse perpetrated against seven children under the age of 10 years who also had intellectual and communication related disabilities. These abuses were allegedly perpetrated by their school bus driver. The case involving these children and this abuse never proceeded to trial. This is because our police, courts and justice system more generally do not cater for people with different communication needs and does not recognise specialist methods of evidence collection and interview types nor the need for cases to proceed to trial quickly where witnesses have a disability.

The fact that these abuses occurred is heartbreaking to me, and should be to us all, but of course most of all to the victims and their families. As all of you have probably heard me explain before, children with disability are estimated to be between four and seven times more likely to experience abuse—physical and sexual—in their lifetime than their non-disabled peers. The fact that this horrendous statistic exists at all is upsetting, but the fact that most cases of abuse involving children and adults with disabilities never proceed to trial is plainly wrong, alarming and a complete miscarriage of justice which must be rectified.

How does one move on with one's life as a victim, a survivor or the family member of a victim knowing that the perpetrator is still wandering around the community, never to be brought to justice. How is that in any way fair or just? I would go as far as to guess that one of the reasons that people with disabilities are more likely to experience abuse is probably because the court and other systems that would otherwise provide us with an avenue to tell people what has happened to us present a barrier to us, so this situation must be rectified.

As members would be aware, this bill seeks to change some of the failings in our current justice system and improve the experience of people with disabilities within it as witnesses, as suspects or as defendants and very importantly for victims. This bill is about improving the position of potentially vulnerable or disadvantaged parties in the justice system—people with disabilities but also children generally—whether they have a disability or not.

Changes that will be enshrined in legislation following the passage of this bill include a child, whether or not disability is present, will now be defined as a person aged zero to 14 years (the current definition is zero to 12 years old); provision of communication assistants or communication partners, as they are sometimes known, for people who need it such as someone with a disability that affects the way they communicate. This could be somebody who uses augmentative and alternative communication methods such as speech boards, picture boards and so on. It could also be someone with an intellectual disability or cognitive impairment or, for example, a child with autism who uses some sign language.

These will now be admissible as evidence in court. The measures are spelt out in the bill very clearly, we believe. The communication partner must be objective in the same way that we would expect an interpreter for a witness whose first language is not English to be objective, and the communication partner is clearly not an advocate for the person they are helping to communicate, nor are they a lawyer.

There can now be 'ground rules' hearings. This will set out how a case will be conducted: for example, what is admissible evidence; what type of questions can be asked of potentially disadvantaged defendants; are witnesses victims and suspects? This measure has been very successful in the United Kingdom, I am told from the consultation I have undertaken, in making suggestions to government. For instance, this would potentially prevent the use of questioning that is deliberately verbose, repetitive or delivered in another style that might confuse or frustrate a witness with particular communication or literacy-related needs.

The bill also provides for the use of audio visual evidence of interviews as the evidence of victims or witnesses who are children under the age of 14 years, or who have a disability that affects their capacity to give evidence involving violence, including sexual violence, and outlines how those interviews can be conducted.

The bill also admits the use of hearsay evidence in some restricted cases: for example, a teacher, a parent or other caregiver reporting what a child has disclosed to them. It will extend the priority listing of trials to include people with a disability whose disability affects memory, so that the trial must proceed within three months of arraignment.

An example of this type of disability might be someone with an acquired brain injury (ABI) or cognitive impairment. At the moment only trials involving children get that priority listing. Given that it may well be that a person with a disability is able to give detailed and substantial evidence that would otherwise be admissible and it is just that they need to do it within a specified time, this is a very important amendment.

The bill also makes amendments to section 21 of the Evidence Act. This allows for an exemption for the need to give evidence in a court. It is hoped that some witnesses will not need to appear in a trial, which could be particularly important for people who are traumatised by what they are giving evidence about.

Finally, the bill also amends section 25 of the Evidence Act to clarify and strengthen the ability to prevent complex and confusing cross-examination, as I mentioned earlier. These amendments proposed are supported in the strongest possible terms by Dignity for Disability as they are simply technical amendments to capture changes that have already been passed by this parliament at the end of 2014, introducing new sexual offences to protect people with cognitive impairment or intellectual disability.

I strongly commend this bill to the chamber and also remind everyone that this is just one small part of the disability justice plan, which was launched in 2014. More cultural, policy and legislative changes are yet to occur to empower people with disabilities to not only speak out about what we experience but to prevent us from experiencing those negative things in the first place. Increased cultural awareness of disability rights, as well as education for people with disabilities about what are those rights in a broad range of life experiences, is definitely needed.

These changes will require us all to work together conscientiously and constructively in this space for many years to come. We certainly welcome the passage of this bill. We thank the government for its cooperation on this very important project. Perhaps even more so, we thank those people who have allowed us to use their stories as cases for the need for these changes. Of course, we wish that we had never had to use them and that they had never happened in the first place, but it is my hope that in using these stories we can create a situation where we will not have to hear these stories again in future. With those few words, I am very proud, on behalf of Dignity for Disability, to support the passage of this bill today.

Debate adjourned on motion of Hon. S.G. Wade.