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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-27 Daily Xml
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SELECT COMMITTEE ON ACCESS TO AND INTERACTION WITH THE SOUTH AUSTRALIAN JUSTICE SYSTEM FOR PEOPLE WITH DISABILITIES

The Hon. S.G. WADE (22:55): I move:

That the report of the select committee be noted.

On 19 October 2011, on the motion of the Hon. Kelly Vincent, the Legislative Council established a select committee to inquire into and produce a report into the access to justice for people with disabilities. In proposing the committee, the Hon. Kelly Vincent highlighted that the key objective of the committee was to raise awareness of the universal right to access justice so that the parliament might hear firsthand how reforms to the justice system would benefit people with disabilities in our communities. It was intended that the committee would work cooperatively with the government in developing proposed amendments to the Evidence (Hearsay Rule Exemption) Amendment Bill and thus facilitate government work in these reforms.

The committee was named the Select Committee on Access to and Interaction with the South Australian Justice System for People with Disabilities, and it was my privilege to chair it. I would like to thank the other members of the committee for their positive engagement: the Hon. Ann Bressington MLC, the Hon. Tammy Franks MLC, the Hon. Kelly Vincent MLC, and the Hon. Carmel Zollo MLC. Leslie Guy was our secretary and Patti Raftopoulos, the research officer. Yes, honourable members, you are right: there was a complete lack of gender balance amongst both the members of the committee and the support staff—I was the token male.

The committee's terms of reference charged the committee with the responsibility 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. In particular, it highlighted participants' knowledge of their rights, availability and use of appropriate service reports, dealings with the police, the operation of the courts, how South Australia compares with other states and territories in terms of access to justice 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 any other related matter.

Honourable members will recall that the background to this committee was the tragic case in relation to St Ann's Special School and other cases involving people with an intellectual disability and also, I think it would be fair to say, the dialogue that the Hon. Kelly Vincent was having with the courts about accessibility. In one of those ironies that only real life can provide, the chief justice at that time, John Doyle, experienced a period of temporary mobility issues and was able to understand in a fresh way the mobility issues faced by citizens accessing our justice system.

The committee met on 11 occasions to receive oral evidence, consider written submissions and deliberate. Meetings were held in Adelaide. In total, the committee received 31 written submissions from individuals, organisations, and oral evidence was heard from 17 witnesses. I would particularly like to thank people with disabilities and their carers who participated in the review. It is not easy to share one's lived experience of what in many cases was painful criminal abuse, but it was certainly invaluable for the committee to be able to meet and talk with both people with disabilities and their carers in better understanding the challenges before us.

The committee found that people with disability faced multifaceted structural barriers in accessing justice as both victims and offenders in the South Australian justice system, and these barriers often leave people with disability vulnerable to miscarriages of justice. In particular, people with disability often experience significant difficulties comprehending information available about their rights in the justice system and significant difficulties communicating in both investigations and in justice proceedings.

The committee made a number of important recommendations to improve the current system of justice for people suffering with a disability. These included improving community legal education to present information in ways more appropriate to the range of levels of comprehension, including people living with intellectual and/or cognitive disabilities. It was recommended that appropriate tertiary education and continuing professional development opportunities should be provided for the legal profession and police, which build the capacity and skills with the criminal justice system workers to understand the general and legal needs of people living with disability.

The committee recommended that disability organisations consider providing appropriate tools for people with disability so that professionals in the criminal justice system can more readily identify citizens who live with disability and adjust their procedures accordingly. Consistent with the origins of the committee in terms of the Evidence Act, the committee recommended that the Evidence Act be amended to increase opportunities for people with disability to provide admissible evidence in court.

In conclusion, I would like to focus on one of the committee's recommendations that was of particular interest to me. Independent advocacy and information are important tailored mechanisms to support people with disabilities to engage across a range of domains including the justice system. Evidence submitted to the committee supported the crucial role a disability justice advocate could provide in supporting a person with disability to be aware of their legal rights and help the person exercise these rights effectively. This role would also be particularly important in assisting a person who suffers from a disability to understand and communicate appropriately in legal proceedings and, therefore, improve their access to justice.

A disability advocate would, where possible, be nominated by the person suffering the disability. In that sense, there are two main ways the committee considered this system could operate effectively. First, the system could be similar to the registered intermediaries in the United Kingdom where suitably qualified workers who are not normally known to the person with a disability are trained in communicating with people who have specific disabilities. The report recommended that a pool of suitably trained people could be maintained for this purpose, and registered intermediaries would be available for people with disability to access during the investigation and trial phase of the criminal justice system.

Secondly, a disability justice advocate could be a familiar person known to the person with a disability. This could be a family member, a carer, a disability services case manager, a communications specialist, an independent advocate or a trusted friend. Although they may be a legal practitioner, their role as a disability justice advocate would not be as legal adviser.

This recommendation of the committee was picked up in an episode of the PM program. On 25 July 2013 Caroline Winter interviewed the Hon. Kelly Vincent. As part of that interview, the Hon. Kelly Vincent particularly addressed this recommendation and said:

They are a trained professional communicating with people with disabilities, who might communicate in ways that are different to verbal, or perhaps they have reduced verbal capacity allowing the person to help the person with a disability communicate with the judge or with the police officer and so on.

Caroline Winter then says, 'John Brayley is South Australia's Public Advocate and has backed that recommendation 100 per cent.' John Brayley responds and says:

Certainly there's good evidence in other jurisdictions, the independent third persons in Victoria and in the UK, intermediaries who are trained professionals who for example can help at court.

I think what's good about this South Australian recommendation is that it recognises that a range of people could be asked to do this support role.

Caroline Winter says, 'But he wants to see more than ideas and plans.' John Brayley then says:

As recently as yesterday I heard about another case about a person who had been assaulted and couldn't get a case up because of issues of evidence. So I think it's going to be really important that these actions occur sooner rather than later.

I think that is a very appropriate transcript to reflect on. We are now, effectively, six months since that interview and any participant in the committee wants to know that the recommendations will be acted on. As John Brayley, the Public Advocate, indicated, that aspiration is also shared by the community. People with a disability need to have processes in place that can support them to access the justice system. These recommendations can only be a starting point.

There is, if you like, a clear way forward. In this report Caroline Winter highlighted the disability justice plan. Again, I quote from her interview. She says:

The report will feed into the state's Disability Justice Plan which will also include proposals to change laws and assist people with disabilities to give evidence in court.

She then introduces South Australian Attorney-General John Rau. Mr Rau is quoted as saying:

Part of what will come out of this, definitely, is a proposal for amendments to the Evidence Act to enable people with disabilities to be better accommodated in the courts.

Caroline Winter says:

In terms of the timeline for implementing any recommendations from this report, the plan which will eventually be finished and the changes to the Act, when could we actually see I guess some action that will protect these people?

John Rau says:

Subject to the consultation on the final proposals going fairly smoothly, we could start to see things roll out towards the end of this year.

That comment was made in July of this year. I am certainly not aware of any movement on the implementation of these recommendations, even in relation to that evidence space. As I said, both this parliament and the community will be looking for action.

The vehicle to take these recommendations forward may well be the disability justice plan. The discussion paper in relation to the plan was released on 21 May 2013. The committee was well aware of the development of the plan and in fact was able to meet with officers of the team developing the plan. We appreciated the fact that in the issues paper issued by the government in relation to the disability justice plan it was specifically indicated that submissions to our parliamentary committee would be taken up as part of the government consultation. So, I think that was a good way to make sure that parallel processes of consultation with the community did not lead to duplication of effort, but proved to be complementary.

The disability action plan consultation involved five public meetings involving more than 120 people, including three meetings in regional areas as well as a considerable number of meetings with a range of individuals and organisations. I was particularly pleased to become aware of a summary of outcomes from consultation meetings. The web page of the Attorney-General's Department in relation to the disability justice plan has a page called, 'Legislation—outcomes Disability Justice Plan public meetings.' What the page indicates is that these are the range of issues that were identified in meetings and the number of green stickers, as they put it, indicate the level of priority indicated in the public meetings. The more stickers the higher priorities.

What was interesting was that there were three high priority items, double sticker items, and one of them specifically in relation to improving evidence was in relation to support. It said that participants wanted to have it legislated that a vulnerable adult must be accompanied in an interview with either a legal representative or a support person. With those words, I commend the report to the council. I thank both the members and the staff who were involved in its preparation. I urge the government in whatever form it takes in the future to maintain the direction and I would hope accelerate the momentum of developing responses under the disability access to justice framework.

The Hon. K.L. VINCENT (23:10): It has been my enormous privilege over the past several months to have had the opportunity to participate in this inquiry into such an important issue, one that I am sure members here are well aware has formed much of Dignity for Disability's focus and workload for some time. I must again express my gratitude for the support that my motion to establish the committee enjoyed in the council and the hard work of my fellow committee members, in particular the Hon. Stephen Wade, who kindly offered his time and experience to chair the committee and act as token male. I was not even aware that this was the case until now but I am all for autonomy, so if that is how the Hon. Mr Wade wants to view himself, far be it from me to stop him.

I also note with interest the fact that if I understand correctly several times throughout his speech for all its strengths, the Hon. Mr Wade used the term 'people suffering with a disability'. I might be corrected but I believe it was something to that effect. I think it is relevant in the context of this committee and this report that we talk about eliminating the barriers that many people with disabilities face to equal rights so that they can in fact live with their disabilities with dignity, autonomy and respect instead of suffering from the societal barriers that are inflicted upon them more often than not, if not all the time, not by themselves. I also acknowledge the hard work and efforts of Leslie Guy, the committee secretary, and the work of research officer, Patti Raftopoulos.

In speaking to the committee's report, I feel that perhaps the best approach would be to deal in turn with the committee's terms of reference, but before doing that I would like to extend my additional thanks to those who presented to the committee—people with disabilities, professionals, family carers and so on. As the Hon. Mr Wade has already pointed out, they were not always easy stories to listen to but, if it is not an easy story to listen to, it is probably five times harder to tell, so I acknowledge the bravery and honesty of many of the witnesses who presented to the committee.

In dealing with each of the committee's terms of reference in turn, this is an approach that is not only rational but also allows me to deal first and foremost with what I feel are some of the greatest issues examined by the committee, the first being participants' knowledge of their rights. The evidence before the committee indicated strongly that for people with disability generally, but for people with intellectual and cognitive impairments and sensory disabilities in particular, there is scant information available and accessible which educates people with disabilities about their rights, in appropriate formats and at an appropriate level of complexity.

This, I feel, is the starting point for the wider crisis for people with disabilities in the justice system because without adequate information and education that gives us the knowledge and language to protect our rights, people with disabilities are left with precious little means to protect ourselves. With a lack of accessible and appropriate information, little or no education in civics and many people with disability excluded from sex education delivered in PE classes, for example, within out schools, the conditions are fixed in such a way that it is almost inevitable that people with disabilities become victims or offenders depending on their life experience and disability in far greater numbers than their non-disabled peers and that when they do they are unable to make effective use of their rights or of the justice system that exists apparently to safeguard those rights.

This brings me to the second term of reference, availability and use of appropriate service supports. This is where we as a society compound our failure of people with disabilities. Having failed to provide people with disabilities with information and education that might have helped them avoid coming into contact with the justice system, or at least letting them know how to circumnavigate it, we now doom them within it, failing to provide adequate support to allow them to participate effectively.

A lack of quality, specialised training for court officials, police and lawyers leaves those in the justice system who could support people with disabilities without the tools to do so. The failure of the justice systems to keep pace with interstate and international standards and advances in infrastructure technology and procedure has left us with this system that is largely inaccessible by virtue of its ageing buildings (an issue the Hon. Mr Wade touched on earlier), indecipherable language, and the inability to adjust to accommodate new professions and services, such as facilitated communication.

These failures are sadly replicated in relation to the committee's third term of reference, dealings with police. Here, also, a lack of training for officers and a failure to keep pace with the developments now in other jurisdictions and the expectations of communities has left this state with a system that is unable to accommodate the needs of people with disability. In many cases this produces serious injustices. People are unable to collect evidence effectively from victims of crime with disabilities if they do not have the supports available to allow them to communicate this evidence effectively, and this serves, of course, as a serious barrier to successful prosecutions, which again compounds the likelihood that these prosecutions will need to occur, because anyone wanting to perpetrate abuse against people with disabilities in particular will know that they are a lot more likely to get away with it.

I have previously expressed, and will reiterate now, my deeply held concern that this makes some people with disabilities, in particular children with disabilities, targets for particular types of offending. In relation to people with disabilities accused of offences, a similarly troubling pattern apparently emerges. Rigid procedures find themselves at times mixed with a somewhat bloody-minded 'us and them' mentality. The submissions to the committee included reference to a number of occasions in which officers did not believe that people had disabilities and withheld supports in an effort to test them or to make them earn the right to use those supports that we would have hoped would have been naturally available to them.

I could be mistaken, but I do not believe that we force someone who presents as probably needing an English language interpreter in court to sit an English test before they are given that support. I think this implied need to prove your requirement for these supports indicates a concerning type of discrimination. On other occasions it was disclosed that inflexible processes were applied with an unaccommodating 'tick-a-box' approach, which saw people without a clear understanding of their situation rushed through procedures, with the only apparent goal being to indicate that the procedure had been in some way followed. This does not represent what I would consider to be a genuine effort to administer justice, and in many cases produces outcomes that can only be described as bizarre, if not depressing.

I have already dealt in part with the fourth term of reference. It is my view that none of these terms of reference are mutually exclusive, the fourth being the operation of the courts. However, I feel it would be remiss of me not to again make a special point of mentioning the issue of facilitated communication and communication assistance. This is an issue that is terrifyingly foreign to the South Australian justice system, despite the clear need for professional intermediaries to assist people with communication difficulties, if they have the need, already being well established in other jurisdictions in Australia, such as Victoria. It is my understanding that intermediaries have been assisting young people and people with physical, intellectual and psychiatric disabilities in the United Kingdom since 1999. The fact that South Australia appears incapable of comprehending how such a scheme could operate is perhaps the clearest indication of how far behind we are and how important it is to discuss an issue like this openly, frankly and urgently.

I ask at this point: exactly what is it that the judicial and police system is so afraid of? Why is it so hard for many people within those professions and systems—and I do not wish to imply that all of them are the same, but why are we so afraid of change that could, in fact, make it easier for police and court officials to do their job—to do everything they can in their power to administer justice. I think the fact that we have these supports interstate and internationally indicates that we should and, indeed, have nothing to fear but the miscarriage of justice.

This brings me quite clearly to the fifth term of reference: how South Australia compares to other states and countries in terms of access. I will pause for just a minute to make another expression of gratitude, that being to Ms Mary Woodward, who is a speech pathologist and communication assistant who works with disadvantaged people, including people with disabilities, to help give their evidence in a court, whether as an alleged victim or alleged perpetrator. Her advice and time has been invaluable to me in forming my opinions on these issues. I look forward to continuing to work with her in the future.

In addition to the issue of facilitated communication, another area I feel requires particular reflection is the area of evidence law. Changes have been mooted in this area by the Attorney-General for some time now after I raised the issue following the appalling and now, unfortunately, infamous Christies Beach bus case. Given the amount of time that has elapsed since the government indicated the issue was a priority, I have had a great deal of time to research it. I have considered the Uniform Evidence Act, which is in use at the commonwealth level and in all states and territories except Queensland, Western Australia and South Australia.

A key point of difference between the Uniform Evidence Act and South Australia's Evidence Act of 1929 is the way in which it deals with the issue of capacity. While the South Australian legislation is silent on capacity, with the issue left to the common law, the Uniform Evidence Act contains a clear statement regarding competence, which establishes an assumption of general competence to give evidence, which can only be displaced by an 'incapacity which cannot be overcome'.

The aim of this provision, as highlighted in a number of Australian Law Reform Commission reports and discussion papers, is to ensure that no person who is able to communicate with assistance—be that, as I understand it, through an interpreter, a communication facilitator or otherwise—should be prevented from giving evidence. I feel that this is a principle that should be reflected in South Australia's evidence laws and, in fact, in many other laws, particularly as we attempt to move our disabilities services legislation at both state and national levels to a human rights, competency-based, autonomy-based level. We should at all times respect and appreciate the inherent competence and ability of people with disabilities until we are given solid evidence to prove otherwise, and even in those cases we should support those people as well.

Of course, I do feel that this particular clause of the Uniform Evidence Act could be, importantly and quite easily, hopefully, imported into South Australian evidence laws and suggest that the adoption of the Uniform Evidence Act is one way that this could be accomplished.

The final term of reference, the consideration of any other related matter, provided some interesting information regarding the accessibility of correctional facilities. I have, through constituent complaints, had an awareness of a number of issues in this area for some time and consider it to be a further example of the wider failure in the justice system to be flexible and accommodating to people with disabilities and to keep pace with new developments, infrastructure, training, technology and procedure as well as cultural and societal attitudes.

In relation to this area, I would also like to highlight a longstanding issue that I have raised on previous occasions regarding the issues surrounding individuals with intellectual disability who are found to be unable to enter a plea. The fact that these individuals, in the event that they require supervision or other assistance, are placed under the supervision of the Minister for Mental Health and managed in accordance with the Mental Health Act is entirely inappropriate and results not only in harm to the individuals placed under supervision but also an additional pressure on services that are not designed to support them.

Of course, if a person with an intellectual disability happens to have a mental illness that is relevant to the proceedings, then it is perhaps appropriate that we have this discussion but to generalise and lump people with disabilities is not only disrespectful to their autonomy and personhood but also, again, places unnecessary pressure on an area that is already under much pressure and places them in an environment where they are not going to flourish and they are probably going to seem even less able to stand up in a court because they are expected to do so using supports that are not designed to fit their needs.

The committee has made a number of recommendations to address these issues which include a number of matters I have already mentioned such as the need for improved training for police, lawyers and court staff, improvements to support services (including communication assistance), the introduction of intermediaries, recognition of the role of professionals in the field of facilitated communication and the urgent need to amend the Evidence Act 1929.

I would again like to thank my fellow committee members and our committee staff for their hard work on this very important issue. It is, of course, hard work that is ongoing, as the Hon. Mr Wade pointed out and as I certainly have previously and will continue to do so. The debate on this is ongoing. It has been far too slow and frustrating at many points and certainly the tabling of this report, or any other plan, does not give us the right to rest on our laurels. It is when we actually have the justice system that fits the needs of people to whom it is supposed to deliver justice that we can do that.

I commend the committee's report to the council and implore the government to adopt its recommendations expeditiously and call on it to finally take action to address this crisis in our justice system because, from many of the stories told to the committee and the stories that I have told in this place, we are clearly running out of time. The facts disclosed in the submissions to the committee paint a clear picture of a justice system that is failing and has been failing for some time—too much time.

In some respects, the South Australian justice system is not years but decades behind other jurisdictions and behind the people again that it is supposed to serve. I cannot stress strongly enough that it is a crisis, and one that we, whether government members or non-government members, have a duty to stand up and treat as such and respond to as such. With those words—they certainly will not be my last on the issue—I commend the report to the council.

The Hon. CARMEL ZOLLO (23:30): As a member of the committee, I rise to make some very quick comments in relation to this report. I note that the committee worked in a very cooperative manner and made eight recommendations. I, too, take the opportunity to thank those members of the public who came forward to be witnesses before the committee. I think we all appreciated that it is not always easy to do so when life's experiences have not been pleasant and sometimes outright distressing.

The government had already made a commitment to make amendments to the Evidence Act and had embarked upon a wideranging consultation process through the Disability Justice Plan, and the work of our committee then fed into the plan in order to be complementary to the public meetings and other submissions that were received.

The Hon. Kelly Vincent spent some time talking about the further education that is required in the legal system, and I do concur with her comments; indeed, it would seem to most people to be obvious. While the legislation that was committed to by the government has not been prepared in time for this parliament, it is hoped that when the new parliament resumes the legislation will be before it in the near future.

I also add my thanks to the other committee members: obviously, the Hon. Stephen Wade as the Chair, the Hon. Kelly Vincent, the Hon. Tammy Franks, and the Hon. Ann Bressington. Of course. I also thank the committee staff—the secretary, Ms Leslie Guy, and our research officer, Ms Patti Raftopoulos.

Motion carried.

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