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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-14 Daily Xml
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JUSTICE FOR THE DISABLED

The Hon. K.L. VINCENT (16:01): I move:

1. That a select committee of the Legislative Council be established to inquire into and report on access to and interaction with the South Australian justice system for people with disabilities, their families, carers and support networks, namely:

(a) participants' knowledge of their rights;

(b) availability and use of appropriate services supports;

(c) dealings with the police;

(d) the operation of the courts;

(e) how South Australia compares with other states and countries in terms of access to the justice system for people with disabilities and what measures could be taken to enhance participation in and thereby provide people with disabilities with just and equitable access to our justice system; and

(f) any other related matter.

2. That standing order No. 389 be so far suspended as to enable the chairperson of the committee to have a deliberative vote only.

3. That this council permits the select committee to authorise the disclosure or publication, as it sees fit, of any evidence or documents presented to the committee prior to such evidence being reported to the council.

4. That standing order No. 396 be suspended to enable strangers to be admitted when the select committee is examining witnesses unless the committee otherwise resolves, but they shall be excluded when the committee is deliberating.

Members would be well aware that highlighting the failings of the police and court systems in terms of equitable access for people with disabilities has formed a large focus of my work of late, and so it should, for it is clear that the barriers to accessing the justice system for these people are plentiful and arise all too often.

The Hon. Tammy Franks once said in this place, when speaking to my motion regarding the Eitzen family and support for family carers of people with disabilities that, 'Disability is more than a condition, it is a way of living'—and right she is. Disability is something that consists of more than not being able to walk, talk, hear, see or learn easily and so on, the ramifications often reach across many areas of life and affect people with disabilities more deeply and in more ways than we might originally assume.

With this issue, we have a very good example of that: a situation where a person's disability not only makes them more vulnerable than average to abuse but where that person also has fewer avenues to pursue justice than the average person once they have been abused. It is a situation where, once again, those who need the system most are those who are the most let down. So what exactly are the barriers which people with disabilities may face in accessing the justice system? People with disabilities are being let down in all relevant areas, be it protection from abuse or rights-based education or even the attitude of the judiciary.

Given that this motion focuses on access to the justice system specifically, I will only mention the problems with the latter. First, there is the police system. Currently the front-line officer who deals with the alleged victim in the first instance makes an assessment at their own discretion as to the vulnerability of the witness and whether they would benefit from being referred to the victim management unit. This unit consists of five officers who have undergone just one level of training above the average communication training which every officer is obliged to take. This extra level of training educates VMS officers in the art of open-ended questioning.

For some alleged victims, particularly those who are extremely traumatised or emotional, open-ended questioning could be very helpful, but for people with some forms of disability, particularly intellectual disability, or people with limited capacity to speak, open-ended questioning could potentially be more of a hindrance than a help.

For example, if you asked a person with an intellectual disability which meant that they could only think very literally, 'Why are you here today?' they would answer with something like, 'Well, because you told me I had to come,' or 'Because someone brought me here.' Again, a person with limited vocabulary, such as some people who use speech generation devices, may not be able to answer such abstract questions, and it would seem that this is where the road presently ends when it comes to police support for people with disabilities in the interview process.

There is no onus on police to be trained specifically in communicating with people with disabilities, nor is there onus on them to employ someone who does have such training to assist the alleged victim. I recently met with SAPOL in the light of recent cases of alleged abuse of very young children, children with communication disabilities, and I have to inform the chamber that the thing I find the most disturbing is not the fact that the current police system is so deficient in this sense but the fact that the police officers I met with genuinely seemed to believe that the current system is sufficient.

It is logical that if a police officer is only able to gain a very limited statement from an alleged victim, whether it be due to disability or some other factor, their case is very unlikely to get before a court, let alone have a successful outcome. However, even if a case does get to court, there are further barriers which people with a disability must face. The most glaring problem is a lack of genuine onus on a judge to offer supports that would aid a person with a disability to give evidence. Yes, there are some clauses in the current Evidence Act, most relevantly section 13, which attempt to make provisions for so-called vulnerable witnesses. But, it would seem that there is a problem with the subjective nature of the language used in these particular clauses. For example, section 13(1) provides:

(1) Subject to this section if—

(a) it is desirable to make special arrangements for taking evidence from a witness in a trial in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom, or for other proper reason; and

(b) the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make these special arrangements; and

(c) the special arrangements can be made without prejudice to any party to the proceedings,

the court should, on its own initiative, order the special arrangements to be made for the taking of evidence from a witness.

The potential problem caused by the subjectivity of the language in this section is, in my belief, quite evident. What does it mean for supports to be 'readily available' exactly? My wheelchair is currently readily available to me, but is it feasible that, if I did not have it with me but required it to participate in the court, it would not be considered readily available?

A person who needs a sign language interpreter to give evidence in a court is highly unlikely to have such a person following them around at all times and may require someone to make a phone call to Deaf CanDo or some other organisation on their behalf to arrange for an interpreter to be present. Would this classify as 'readily available'? The examples I have given may seem a bit outlandish, but I believe they are worth considering, given that several cases involving victims with disability seem to indicate that appropriate supports for people with disabilities in courts are rarely, if ever, used.

The St Anne's case, involving alleged sexual abuse of then students with severe and multiple disabilities in the 1990s, first brought this shameful issue to the surface. As members will be well aware, this year we have seen a similar incident occur, and that case is still before the courts. This case consists of about seven children with communication disabilities who were allegedly sexually abused by their school bus driver. Some of the charges against this man will be pursued, but many, including all the charges pertaining to two particular children, have been dropped due to lack of evidence, reportedly because the disabilities of these children might prevent cross-examination.

I hope that the establishment of this select committee will not only give us the opportunity to increase awareness about the universal right to access justice but also give people a chance to tell us exactly what are their experiences and how they, as the people who would be benefiting from any changes made, would like to see these things amended. Members might be aware that there is also currently an inquiry in Victoria which is very similar to that which I am proposing here, which not only shows us how widespread and important an issue this is, but also that we could learn a lot about it from other jurisdictions.

It is clear that we have a lot to learn when it comes to equitable access to justice for all Australians. I was briefed just this afternoon on changes to the Evidence Act, which the Attorney-General will be tabling in the other place today. From what I am told, these changes sound like a step in the right direction, but there is a lot further to go.

The required systematic attitude changes will not come quickly, but with the establishment of this committee, I hope to speed us down that path a little more. This is not an issue that can wait, as the two cases I just mentioned illustrate quite clearly. I commend this motion to the council and encourage all members to join me in working towards creating a justice system that is truly just.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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