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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-10-19 Daily Xml
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JUSTICE FOR THE DISABLED

Adjourned debate on motion of Hon. K.L. Vincent:

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.

(Continued from 14 September 2011.)

The Hon. T.A. FRANKS (20:34): I rise on behalf of the Greens to support the motion of the Hon. Ms Vincent for a select committee to investigate and report on access to justice for people with disabilities, their families, carers and support networks.

A recent Four Corners program highlighted the need for this area of our society to be repaired and certainly improved upon. For those who did not see the recent program, it dealt with the stories of abuse at St Ann's Special School some time back. In particular, the very brave parents of a young boy went on that program and spoke of how that particular school and the church attached to that school failed their son who had an intellectual disability. Their son was sexually abused but never got either recognition of that or justice for that. For those who are not aware, no efforts were made to even inform the parents of the suspected abuse. While the alleged perpetrator was told his services were no longer needed as a bus driver for that school and that he would not be receiving any more work, they congratulated him and thanked him for his previous service in a lovely letter. As I say, they did not inform the parents.

Those who are most vulnerable in our community are those who have the least access to justice and are those who come into contact with our justice system in a negative way, in most cases. If there are areas where we can improve on our treatment of people with disabilities and in the way that the system not only listens to people with disabilities but also understands the differences and the changes that our institutions must make to accommodate and include all members of our society, then that can only be a good thing.

I am certainly looking forward to being a participant in this select committee and am happy to volunteer my time and effort. I hope that we come back with a positive report that looks at further improvements in this state to afford people with disabilities, their families and their carers better access to justice. With those few words, I commend the motion to the council.

The Hon. A. BRESSINGTON (20:37): I rise to indicate my support for the Hon. Kelly Vincent's motion to establish a select committee inquiry into access to and interaction with the South Australian justice system for people with disabilities, their families, carers and support networks. Given the recent examples raised by the Hon. Kelly Vincent, the media and others—particularly the case involving the bus driver, as the Hon. Tammy Franks has just mentioned, for St Ann's Special School—there can be no doubting that the particular challenges faced by people living with a disability to the justice system have not been met.

My office attended the briefing hosted by the Hon. Kelly Vincent, for which I thank her. Tony Kerin, President of the Australian Lawyers Alliance; John Brayley, the Public Advocate; and Associate Professor Mary Heath from Flinders University, amongst others, informed those in attendance of the barriers faced by victims of crime who are living with a disability in accessing justice. They spoke in detail of the reforms needed in the justice system and to the rules of evidence, particularly around the use of interpreters, which I note is on the government's legislative agenda. As the honourable mover stated, it is clear we have a lot to learn when it comes to equitable access to justice for all Australians.

While the committee will no doubt focus on barriers to victims with a disability accessing the justice system, of which there are many, I also hope this committee looks at issues facing those living with a disability—particularly those with an intellectual disability—who find themselves accused of a crime. Numerous studies have reaffirmed the need for police to have a basic understanding of the disabilities they may encounter and that too often police appear to be insufficiently aware of the need for caution when interviewing people with a disability or mental illness. This is often because people with an intellectual disability, in particular, will not raise the issue of their disability and instead often present as passive, placid and, according to the research by Ochoa T. and Rome J. published in 2009, are highly suggestible. Given that the research suggests that intellectual disability is often missed or, worse, ignored by front-line officers, this should be of concern to us all.

As is detailed in the research paper 'Police interviews with vulnerable adult suspects' by Dr Lorana Bartels, Research Fellow of the Australian Institute of Criminology, other states have undertaken significant reform of the law concerning police interviews for vulnerable adults, particularly those with an intellectual disability. These include measures such as requiring a support person to be present or at the least the option to be provided if it is suspected that a person suffers an intellectual disability or other vulnerability.

In Queensland, if a police officer reasonably suspects a person is disadvantaged by comparison with members of the Australian community generally, then even if the suspect declines the offer of a support person, the law requires, without discretion, the police officer to arrange for a support person to be present during questioning. To quote Dr Bartels:

Clearly, the (Queensland) legislature have determined in such circumstances that it is in the interests of justice that the person's stated desires be overridden by a police decision.

While South Australia Police are, by section 104(4) of the Summary Procedures Act 1921, able to take a statement from a person who is illiterate or suffers from an intellectual handicap in the form of a video or audio record of the interview rather than a written statement, South Australian law otherwise fails to recognise the vulnerabilities of people living with a disability. I am hopeful that this inquiry will be the impetus for the much needed reform.

South Australia is also yet to undertake the reform of Queensland and to a lesser extent Victoria on the use of restrictive practices in the justice system and, for that matter, across all disability services. The recommendations of the pioneering report by Justice Bill Carter QC, which led to the Queensland reforms, have been strongly advocated by the Public Advocate, Dr John Brayley, most notably in his office's 2009-10 annual report.

Some time ago my office contacted the Public Advocate about the interaction between the justice system and people with a disability. The Public Advocate drew my attention to the establishment of a forensic disability unit in Queensland for detaining people with a disability and the need for such a facility here in South Australia.

Currently, those people either unfit to plea due to their disability or who are found not guilty due to mental impairment and cannot be discharged into the community are admitted to James Nash House, a mental health facility, or in some instances kept in prison. To quote the Public Advocate, with whom I wholeheartedly agree:

Our state needs such a facility to cater for the needs of this group, as current alternatives are unsuitable.

No doubt, the Public Advocate will again passionately repeat these calls in his testimony to this inquiry.

As I indicated, I am aware from the government briefing on the Evidence (Hearsay Rule Exception) Amendment Bill that some of the reforms advocated by the disability sector are already on the government's legislative agenda. From memory, I believe I was told to expect a raft of legislation in the new year.

Whilst this is, of course, to be welcomed, I indicate my hope that the government will work cooperatively with this committee and put forward its reform proposals so that the committee and the disability sector, which is clearly behind it, can work with the government in establishing these reforms. With that said, I commend the mover for this motion and look forward to reading the select committee's report in the new year.

The Hon. S.G. WADE (20:43): I rise to indicate the support of the Liberal opposition for this motion. I will speak relatively briefly as the Hon. Kelly Vincent has clearly put the case for an inquiry and other members have joined her and the opposition agrees with them all.

As a former chair of Julia Farr Services, at that time the largest disability services institution in South Australia, I am acutely aware of the vulnerability of people with disabilities in the justice system. In our facilities at Highgate, we provided accommodation and services to hundreds of people often with severe multiple disabilities.

I came to appreciate that access does not simply mean technical availability. It is a constant challenge to ensure that people are supported to access justice with whatever challenges they face. For example, a person with locked-in syndrome is both acutely vulnerable to abuse and severely constrained in their ability to communicate complaints; a person who has been institutionalised for a long period may have become so inculcated in dependency that they are unable to challenge abuse; and a person with cognitive impairment being supported in community living may need tailored information to make them aware of their rights, particularly as a consumer.

During my time as shadow minister for disability services, issues of justice were often raised with me. Our disability services policy at the 2010 election committed to promoting equality services. Our policy stated:

Within our first year of government a Redmond Liberal government will produce a vision for disability plan with an element of enhancing the equality of services including through a new Disabilities Services Act which reflects the values of the United Nations Convention and through a strong quality assurance program with elements such as independent advocacy and information, a community visitor scheme and a restrictive practices regime.

Independent advocacy and information are important tailored mechanisms to support people with disabilities to engage across a range of domains, including the justice system. A community visitor scheme is a mechanism to provide independent oversight of the quality of care and the protection of legal and other rights of people with disability. In that context, I pause to welcome what I understand is a recommendation in the disability blueprint today that a community visitor scheme be established. That is confirmation of the wisdom of this council in insisting on such a scheme for people with mental health issues.

A restrictive practices regime is a structure which the Hon. Ann Bressington referred to a moment ago. Such processes ensure that support providers are monitored to ensure that the least restrictive approach is used in delivering support. In many ways, these initiatives are not merely disability initiatives, they are also justice initiatives. Quality assurance processes have both a crime prevention and a crime response impact.

The United Nations has recognised the need to uphold the rights of children and adults with disabilities by adopting the Convention on the Rights of People with Disabilities. The convention is intended to protect the rights of people with disability and specifically provides that people with disabilities should enjoy the full range of human rights and, in particular, that they enjoy full equality under the law.

In a report prepared by the National People with Disabilities and Carers Council, entitled Shut Out, the council highlighted the experience of people with disabilities and their families in Australia. One of the main barriers identified by people with disabilities, their families, friends and carers, and their full participation in the economic and social life of the community, was in the area of rights, justice and legislation. Rights, justice and legislation had the third-highest percentage of submissions, after social inclusion and community participation.

One case highlighted by the Shut Out report involved the lack of services and support for people with disabilities. It involves an individual, who was referred to as T. T's doctor found that T had an inadequate skill base for the activities of daily living, such as shopping, cooking and self-care, as well as problem-solving and decision-making. T was also diagnosed with an anxiety disorder; however, T could not access disability services as he did not meet the three diagnostic criteria in order to verify diagnosis of intellectual disability.

The criteria included IQ assessed as being below 70, limitations in adaptive functioning, and onset before 18 years. The Disability Support Service in T's area argued that as T went to school at a regular school, as he had been employed as a cleaner and as he had a driver's licence and an IQ over 70, he did not qualify for support. Such eligibility criteria exclude people with IQs higher than 70 who have an impaired function or skill base for daily living. The discussion paper found that this particular population group are over-represented in the criminal justice system, both as victims and as offenders.

The Hon. Ann Bressington mentioned the government's bill in relation to hearsay evidence and in that context I specifically asked the officers in the Attorney-General's Department how disability was defined in the context of the legal system. I welcome the fact that there was actually less clarity in the legal system. I think that the case of T highlights that if you have a heavily diagnostic approach, rather than a holistic consideration of a person's set of needs, you can fail to hone in on a very vulnerable group within our community. I am sure that is an issue that will be considered by the committee.

As shadow attorney-general, I am interested in the outcomes of this committee, not only in terms of raising awareness but also as part of the process of building broad political support for practical enhancements to the system. I note that an amendment has been tabled in relation to this motion by the Hon. Ian Hunter on behalf of the government, and that amendment significantly reflects the point I just made. It seeks to add two more diagnostic groups to the two that the Hon. Kelly Vincent has highlighted.

Of course, in terms of diagnostic groups, we could attach a volume. I understand the mover is inclined to accept the amendment, but I do welcome the fact that—I am anticipating debate, which is disorderly, so I will stop doing that. The two motions before us tonight, the one on disability in law and the one on co-morbidity, do interrelate, and I think that it will be important for those of us who serve on this committee to unpack the issues of how the legal system in particular responds to people as they present within the criminal justice and civil systems, and also how we can try and ameliorate the co-morbidity issues and delivery of services.

As I was saying earlier, things like restricted practices and community visitor schemes are crime prevention and crime response services, and if the more generalised diagnosis is only available before the court, we are actually missing a lot of those opportunities for crime prevention. Rather than steal the rest of my speech for the next motion, I will commend the motion to the house.

The Hon. R.L. BROKENSHIRE (20:51): I will be brief.

Honourable members: Hear, hear!

The Hon. R.L. BROKENSHIRE: Wouldn't it be good if colleagues actually did the same thing?

Members interjecting:

The Hon. R.L. BROKENSHIRE: I have just lost half a minute, sir, but anyway. I simply want to put on the public record that Family First supports the select committee moved by the Hon. Kelly Vincent which has been debated tonight. It is unfortunate that we have to have these sorts of select committees to try to get justice and equity into an area that is so important, but, notwithstanding that, we support the select committee. Given that there is multipartisan support with this, I think it is important. I wish the select committee all the best in obtaining evidence and writing a report, and I look forward to reading it when it is tabled.

The Hon. K.L. VINCENT (20:53): Thank you, Mr President.

The Hon. S.G. Wade: Which one are you speaking to?

The Hon. K.L. VINCENT: I was just about to clarify, thank you. Can I start by thanking members for their contributions today, particularly the Hon. Mr Wade for being so enthusiastic about the idea that he wished to discuss both motions at once. It is very heartening to see that our legislators still have some enthusiasm in their work. Of course, I would like to thank all contributors today—the Hon. Ms Franks on behalf of the Greens, the Hon. Ms Bressington, the Hon. Stephen Wade and the Hon. Mr Brokenshire—for their support of this committee.

I would especially like to thank Mr Wade, representing the Liberal Party, for understanding the need for this committee to exist as a select committee rather than being deferred to a standing committee such as the Legislative Review Committee or the Social Development Committee, because I understand that they originally intended to table an amendment to defer this issue to one of those committees.

I have made it clear to them that I consider it mandatory that this be a committee of its own. That is because I believe that this council contains many members who have a particular interest and, indeed, a particular worthy expertise in the areas of justice and the justice system—and in particular child protection, which I think is also pertinent to this topic—who are not necessarily members of those committees. I am grateful for members' patience in establishing yet another select committee to tackle this issue. I think that it will be well worthwhile. As Mr Brokenshire said, it is terribly unfortunate that this select committee discussing this terribly tragic topic has to exist at all, but it is undoubtedly important because, as the Hon. Ms Franks said, those who are most vulnerable are those who are currently most let down by the system.

As the Hon. Ms Bressington pointed out, we have much to learn about the topic of expanding access to our justice system, and we could certainly learn a lot of that from existing jurisdictions across Australia and overseas, particularly in Victoria, where an organisation called Communication Rights Australia exists to aid people with intellectual and communication disabilities in giving evidence in a court. I will not go too far into that as I have already touched on it in my speech introducing this motion, but I would again now remind and encourage members to look into the work of that great organisation.

We have of course seen that, in the blueprint for disability reform which was tabled today, there is a priority recommendation that the issue of access to justice and the police and judiciary systems is examined by this government. However, I still consider it very necessary that this committee go ahead, especially given that no matter how wonderful the recommendations in this report may be, we have certainly seen in the past reports, such as the Layton report into child abuse, where—

The Hon. S.G. Wade: And the Mullighan report.

The Hon. K.L. VINCENT: —indeed—a number of worthwhile recommendations were made but barely any of them were actually implemented by the government. Therefore now, years down the track, we are actually going back to that report in the light of recent cases of abuse of people with disabilities, such as those who were discussed in the Four Corners program. We are now going back to that report all these years later to again try to implement those recommendations. I believe that this committee is terribly important in helping to ensure that the recommendations in the blueprint today are indeed carried out, and for that reason I consider that this committee will be complementary to the blueprint and not in any way disruptive to it.

I would also like to make mention again of a few things that I have mentioned before many times. The Hon. Stephen Wade pointed out very eloquently that the Shut Out report, for instance, clearly indicates the societal ramifications of having inadequate protection for people with disabilities under the law: the lack of community participation, the lack of feeling of respect and value in our society so I hope to tackle that as well, and also, as Mr Stephen Wade pointed out, the need for a needs-based approach to disability services provision and disability funding, rather than a diagnostic approach.

As I said, I have already touched on that several times and will not take up too much of the council's time this evening by going any further. Again, we have heard the need for monitoring and legislative protection in terms of restrictive practices in the disability sector and also a community visitor scheme, and these are things that I hope not only to tackle in this committee but intend to tackle on a legislative level in the coming months in this parliament.

With that said, I thank members for their contributions and their understanding of the need for another select committee. I look forward very much to participating in this committee, and I hope to make some changes to this very important sector of our community.

Motion carried.

The Hon. K.L. VINCENT (21:00): I move:

That the select committee consists of the Hon T.A. Franks, the Hon. Carmel Zollo, the Hon. S.G. Wade, the Hon. A. Bressington and the mover.

Motion carried.

The Hon. K.L. VINCENT: I move:

That the select committee have power to send for persons, papers and records, to adjourn from place to place and to report on 23 November 2011.

Motion carried.

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