El Gibbs reports on the Human Rights Commission's latest findings on the problems

people with disability face when dealing with Australia's criminal justice system.

This week, Disability Discrimination Commissioner Graeme Innes launched a new

report, Equal before the law, which outlines the barriers and challenges people with disability
face when dealing with the criminal justice system.
The report details specific problems encountered by people with different communication
needs and those with complex disabilities. These include a higher risk of being jailed and less
access to bail, police and lawyers not having an understanding of modifications and supports
needed, and people with disabilities not being seen as credible witnesses.

According to the report, people with disabilities are over-represented within prison, with rates
of mental illness and brain injury far above the general population. Aboriginal and Torres
Strait Islander people are also more likely to have disability, particularly children. People
with disabilities are more likely to be victims of violence, with 90% of women with
intellectual disability reporting sexual abuse in one study, most before they turned 18.

At the launch, Alastair McEwin, President of the Deaf Society of NSW, said:

"Imagine you are a young confident deaf person who is fluent and articulate in sign
language. Imagine you just happen to be in the wrong place at the wrong time - you're
suddenly caught, with some deaf friends, in the very middle of a small riot outside a Sydney
pub one night. Police are called to deal with the melee. They see you using your hands and
arms to communicate with your deaf friends. The police take these hand/arm movements to
be 'wild' and 'threatening'; they assume you're intoxicated and pose a threat to others.
Nothing could be further from the truth. The next thing you know, you've been arrested and
taken to the nearest police station. No interpreter is provided and you have no idea what is
going on."
Fiona Given, from the Australian Centre for Disability Law, told a similar story. She said:

"I would like you to imagine for a second, you have just been sexually assaulted, you cannot
speak, you do not have a communication device nor do you have access to an independent
communication support worker. This means you are unable to tell anyone what has happened
to you. You are unable to call or visit a police station. You are trapped within your own
silence."
The Human Rights Commission (HRC) conducted a range of consultations in developing the
report, and also commissioned a cost-benefit analysis from Professor Eileen Baldry and
PriceWaterhouse Coopers. This paper showed, starkly, that the cost of keeping people with
disabilities in jail far outweighed any cost of intervention and support programs. In some of
the case studies used in the analysis, the difference was in the millions of dollars for just one
person.
Graeme Innes doesn't understand why State and Territory governments are unwilling to fund
cost saving support programs. "I think they haven't done it because there's a 'tough on crime'
ethos throughout Australian politics, and while some attorneys recognised the impact of these
programs, not funding them is a short sighted approach that means damage done to lives of
people with disabilities," he said.

Innes is also concerned that recently announced cuts to legal support services will exacerbate
this situation, making support for the most vulnerable people within the justice system even
more difficult to find.
Several stories in the report illustrate strongly how the lack of support for people with
disabilities in the justice system can have devastating impacts on lives. The National
Aboriginal and Torres Strait Islander Legal Services cites one client who had only been
diagnosed as clinically deaf after his trial for murder:

"He had been through the whole process saying, 'Good' and 'Yes'-those were his two words-
and that process had not picked him up. Given the very high rates of hearing loss, you have
to wonder about people's participation in the criminal justice system as being fair and just if
in cases like that people simply are not hearing or understanding what is going on."
Other groups reported meeting with prisoners who were unaware of why they were in jail, the
denial of essential medication and aids, and a lack of access to in-prison support and
rehabilitation programs.

In their submission, Advocacy for Inclusion noted that people living in group homes who
experienced violence, were specifically excluded from domestic violence laws in many
states. They reported that "victims of violence have great difficulty having the user of
violence removed or finding alternative accommodation. People with disabilities
consequently live in violent situations for many months and even years."
The National Council on Intellectual Disability detailed the myriad ways that people with an
intellectual disability are discriminated against within the justice system. For example, a
lawyer may not understand that a person requires more time to process a question, so they
"will ask another question thinking that person has not understood/ doesn't know/ doesn't
want to answer the questions. For the 'client', they then do not know which question to
answer first, and will become overwhelmed in situations when a questioner keeps firing one
question after another with the common result that they are unable to answer any question."
The HRC report is calling on all State and Territory governments to develop comprehensive
Disability Justice Strategies that will highlight the safety of people with disabilities, be non-
discriminatory, and ensure freedom from violence. Of the State and Territory representatives
approached for comment, NSW Attorney General Greg Smith's office said that he will
consider any recommendations that apply to his portfolio, while a representative from ACT
AG Simon Corbell replied that their government "will take time to consider the Australian
Human Right Commission's report... [which] raises a number of issues across the criminal
justice system and disability service system."

Innes believes "the recognition of various disabilities and the impacts they have, irrespective
of the type, is the most important issue here. As a blind person I can't see a form, a deaf
person using hands to communicate is not being drunk, for a person with intellectual
disability, not treating them as stupid. And that sums it up.

"Having a disability doesn't mean people don't have capacity to communicate and participate.
It's all very well to say people have formal equality, but for real and substantive equality, we
have to recognised the impact of disability on the justice system."

El Gibbs is a freelance writer with an unhealthy interest in Senate Estimate Committees.

She's on Twitter as @bluntshovelsand blogs unpredictably at AusOpinion and bluntshovels.
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