A Question of Justice, 2003 : Disability Council of NSW

A Question of Justice

Access and Participation for People with Disabilities in Contact with the Justice System, 2003
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Foreword

A Question of Justice was a research project jointly funded by the Disability Council of NSW and the Law and Justice Foundation of NSW, conducted over the period 1998-99 and intended to inform the process of reform within the justice system.

The Disability Council of NSW is the official advisory body to the NSW Government on disability issues and policy. The Council, appointed by the Governor and reporting to the Minister for Disability Services, operates under the Community Welfare Act 1987 and is made up of a majority of members who have a disability. In addition, there are members who have experience in the provision of services for people with disabilities, their families and carers.

The role of the Disability Council is to:

research, evaluate and implement all government policy relating to disability issues and assess its impact on people with disabilities;
advise government on the priorities and initiatives to be given to services and advocate on behalf of people with disabilities;
promote the integration of people with disabilities into the community through community awareness and education; and
encourage diversity, flexibility and innovation in services through constant consultation with people with disabilities, their families and carers.

The justice system is composed of a broad range of specialist and generic services. These include private and public agencies that provide legal and para-legal services to the community. It is the responsibility of all entities within the justice system to address the issues of access and participation for people with disabilities. With this in mind, the recommendations of A Question of Justice identify key areas for change that must be addressed by all facets of the justice system.

Council believes that the recommendations form an ongoing part of the discourse for a more inclusive justice system. That is, when a recommendation is made that a process, or policy, for example, 'be developed' or 'be provided', the implication is that this is a systemic responsibility. This report also emphasises a whole of government approach, such that the justice system's responsibility to its clientele includes the identification of, and the maintenance of relationships with, other Departments and agencies that can advise or facilitate the realisation of particular recommendations.

The Disability Council welcomes the initiatives that have been developed, or progressed, since this report’s inception. These have

the continued development and implementation of the Disability Strategic Plan strategies by the NSW Attorney General’s Department (see section 5.7.2), particularly the Flexible Service
the release of the Framework Report, commissioned by the Intellectual Disability Rights Service and the NSW Council for Intellectual Disability, which discusses issues relating to appropriate community service for offenders with intellectual disability, or those at risk of offending;
the Court Support Program for people with intellectual disability, funded by the Department of Ageing, Disability and Home Care and conducted by the Intellectual Disability Rights Service; and
the review of the Jury Act 1977 being undertaken by the NSW Law Reform Commission as part of its inquiry into whether people who are blind or deaf are eligible for jury service.

While initiatives such as these address some of the issues raised in the report, to varying degrees, the reality is that a significant amount of work remains to be done. The information received during the research for A Question of Justice was extremely complex and the analysis has taken some time. Nonetheless, the recommendations of this report are just as important as ever.

Andrew Buchanan
Chairman, Disability Council of NSW

Executive Summary and Recommendations

The justice system is founded on the rule of law as the cornerstone of civil democratic society. Access to, and participation in, the justice system are considered to be central to the notion of citizenship.

However, a growing body of evidence suggests that people with disabilities are being denied access to and participation in the justice system, through a range of barriers.

This report presents the findings of an extensive study, looking at the experiences of people with disabilities in contact with the NSW justice system. It was based on interviews conducted from 1998 to 1999. The project was funded by the Law and Justice Foundation of NSW and the Disability Council of NSW. The aim was to gather information about barriers to access and participation for and the effects for people with disabilities when they became involved with the justice system.

This research documents the experiences of sixty-one people with disabilities in contact with the NSW justice system. It must be emphasised that the findings should not be generalised as applicable to all people with disabilities – this report does not speak for all. Rather, it illuminates the experiences some people with disabilities have had in their contact with the NSW justice system. It tries to identify barriers to access and participation, based on those perspectives. The research does so in a way that acknowledges positive practice and policy changes, while identifying further opportunities for change. Most importantly of all, it argues that people with disabilities are powerfully placed to inform the process of change.

The Disability Council of NSW had three aims in undertaking this project:

to gather empirical data about people with disabilities and their access to the justice system;
to identify critical areas of access prevention and/or difficulty; and
to use this information to inform the reform process.

Accordingly, this report

documents the experiences of people with disabilities in contact with the justice system;
presents the views of other key stakeholders about disability-related issues; and
identifies access issues and opportunities for reform.

Findings: Barriers to access and participation

The justice system views people with disabilities in a negative way. People with disabilities encounter responses of fear, confusion, hostility and dismissal. The system places the onus on individuals to assert their rights and demonstrate their capacity to access and participate within the justice system in a way that is not experienced by people who do not have a disability.

Who else is involved?

People with disabilities are supported in a variety of ways through a combination of personal and professional networks. The critical role of these support networks is often ignored by the justice system.

The identity of ‘the other party’ presents significant barriers for people with disabilities in their decision to take action. These barriers include:

the comparative power, status and resources of the other party;
the role of the other party in providing essential services, care and assistance;
personal relationships with the other party; and
the fear of reprisal, harassment, threats and intimidation.

The complex nature of these relationships is compounded by the inherent adversarial nature of the justice system, characterised by advantage and disadvantage, gains and losses, winners and losers.

Advocacy & support

The justice system fails to understand the role of advocates, which leads to a perception of them as a hindrance and interference to ‘normal’ process.

People with disabilities – especially those living in regional and remote areas – have limited access to advocacy, largely because of limited funded services. The quality of advocacy is limited by the quality of recruitment and training.

Impact of the adversarial system

The inherently adversarial nature of the justice system disadvantages people with disabilities. People’s disabilities are used against them to undermine their credibility and participation in formal proceedings. Even the less-formal alternative dispute resolution processes are implicitly adversarial – yet the system fails to acknowledge this or address underlying power imbalances.

Accessibility

The justice system presents many barriers for people with disabilities trying to access information, advice or support, including:

inaccessible physical environments;
inaccessible information formats;
inappropriate consultation;
staff attitudes and awareness;
gate-keeping mechanisms; and
lack of service continuity.

The search for legal information and assistance is time-consuming, discouraging and frustrating for people who have little assistance and few resources.

Physical access

Organisations, buildings and services throughout the justice system are generally physically inaccessible. The lack of physical access reflects essential systemic assumptions about who is entitled to participate and how. Resource and budget allocations reflect underlying attitudinal norms and priorities that overlook disability-related requirements.

Physical access is generally interpreted in its narrowest sense; the physical access requirements of many people with disabilities are subsequently overlooked or misunderstood.

Perception of roles

The roles of those involved in legal proceedings are rarely explained clearly to people with disabilities.

Consistency and continuity

People with disabilities experience inconsistent, interrupted and uncoordinated service provision when attempting to access the justice system. Their experience includes a high level of staff turnover, difficulties in accessing the designated representative, little communication, and inconsistent practice.

Communication

The ability of people with disabilities to participate is severely limited by communication barriers. The justice system is unable to communicate effectively, relying on complex language and verbal forms of communication.

Consultation

People with disabilities are excluded from consultation with those representing their interests, due to time and resource issues – which is compounded by a lack of awareness about disability-related requirements and rights to effective consultation.

Flexibility

The justice system is rigid and inflexible, shaped by ‘norms’ that fail to acknowledge community diversity. It operates according to strict time-limits that do not recognise disability-related requirements, or the comparative disadvantage in access to essential resources and support.

There is also considerable confusion about the respective, appropriate roles for interpreters, advocates and support persons – and these are often not available when most required, or available inconsistently throughout proceedings.

Procedures in the justice system are applied narrowly and inflexibly.

Flexibility is interpreted by the system as procedural unfairness: anything outside the ‘norm’ is considered to be ‘special’ or ‘extra’.

Cost

The financial, physical and emotional costs of legal action are major barriers. People with disabilities are less likely to be in a position to afford private legal advice and more likely to rely on the diminishing resources of community legal services, pro bono schemes, and Legal Aid. The risk of incurring costs for the other side – high profile, highly resourced legal teams employed by large government and private corporations – dissuades many people with disabilities from pursuing legal action.

Significant physical and emotional costs are directly attributed to the effects of inappropriate processes and practices within the justice system, to the point where people with disabilities do not pursue action, or decide against reporting subsequent incidents.

Time

Time issues created significant additional pressures and stress for people with disabilities when taking legal action. On the one hand, they are confronted with a system that seeks to process cases quickly, without making allowances for disability-related requirements. On the other hand, they face the frustrations associated with long delays in resolving matters.

Multiplicity of issues

People with disabilities are usually juggling a number of different issues at any one time – frequently involving essential service-providers, large government and private corporations. As a result, there is a tendency to label people with disabilities as vexatious or unreasonable litigants, which has an influence on the process and outcomes of legal action. These labels ignore the complexity and difficulties experienced by people with disabilities when they try to exercise basic rights.

Accountability

As citizens, people with disabilities have a right to an accountable justice system, yet they perceive little accountability in the justice system. At an individual level, people with disabilities are unaware of their rights to redress, unclear about how to pursue them, or frustrated in their efforts to do so. At the systemic level, people with disabilities’ rights are routinely overlooked.

A widespread lack of disability-awareness and narrowly-defined assumptions regarding ‘access’ and ‘participation’ are the results of inadequate and ineffective accountability mechanisms. Because accountability in the justice system is generally self-regulated it is, therefore, considered to be ineffective and biased.

Access and participation: the implications for citizenship

People with disabilities are citizens. Citizenship involves a broad range of social, political and economic rights. Society is obliged to assist and support citizens to exercise their rights, by recognising and resourcing disability-related requirements. However, the justice system does not recognise such requirements as valid and therefore fails, firstly, to provide adequate assistance and support and, secondly, to challenge systemic ‘norms’.

Participation in juries is one way of expressing citizenship status: people with disabilities are effectively excluded from jury duty. The disclosure of disability is generally interpreted as grounds for exemption, irrespective of ability and willingness to participate in duty.

Training issues

There is a clear need for more community education for people with disabilities – particularly those in isolated, vulnerable and dependent situations – to learn about their legal rights and responsibilities.

With regard to people working in the justice system, basic disability awareness training is required at all levels, to address a general lack of understanding of disability issues. Such training needs to be compulsory, ongoing and related to real experiences of people with disabilities.

People with disabilities must be involved as trainers, facilitators, experts and consultants.

Issues identified by people working in the justice system

Identification and disclosure

Basic disability awareness training must explore the complex issues involved in disclosure and identification of disability to stop people from second-guessing – and to stop people with disabilities, who are accessing the justice system, from being required to provide disability-awareness education.

Policies, procedures and guidelines

At all levels of the justice system, there needs to be formal policies that relate to disability access and participation. Such policies need to be presented in a way that makes them readily accessible and easy to implement, through timed action plans.

The language of disability

The justice system views disability in terms of impairment, illness, medical treatment, misfortune, tragedy and suffering. People with disabilities are objectified as ‘other’ and ‘different’ from the ‘norm’.

The justice system perceives the ability to communicate as directly reflecting a person’s capacity and credibility. A person’s ability to communicate presents significant issues for legal practitioners:

Difficulties in communication often lead to reliance on a third party as a point of reference, rather than directly communicating with the person with a disability.
The need to communicate clearly and directly with people with disabilities is recognised, but legal jargon and terminology may be used to disguise discomfort, inexperience and/or lack of knowledge, or as a shortcut to minimise costs.
The justice system maintains that everyone who participates experiences difficulties and concludes that people with disabilities do not experience any particular barriers. Thus, barriers to access and participation are the results of an individual’s incapacity, actions and choices. Disability may be regarded as just another issue used to disadvantage, unsettle and undermine an opponent, in an adversarial system.

Whole of government approach

A whole of government approach is sought by the justice system to co-ordinate responses to people with disabilities. Key agents of change identified were:

legal representatives;
senior police management;
local court managers;
senior departmental managers;
members of the judiciary; and
people with disabilities and peak disability organisations.

The justice system relates the barriers experienced by people with disabilities to inadequate resources. Resources are seen as inevitably limited and reflect an economic reality.

The justice system identifies the need for people with disabilities to be involved, as potential service-users:

in assessing existing services;
as educators and trainers; and
as advisers and consultants.

The system recognises that agencies should provide opportunities for people with disabilities to comment on their services.

Recommendations

Community education

That education and training programs about the justice system, aimed at people with disabilities, be developed.
That education and training about the justice system, aimed at people who informally assist people with disabilities, be developed.
That advertising of existing services and resources for people with disabilities be increased.
That accurate information to people with disabilities about legal rights, procedural criteria, limits to the law and alternative options be provided.
That information on the above be provided in accessible formats including community languages for people with disabilities.

Training

That there be universal disability awareness education and training for all personnel in the justice system.
That mandatory and ongoing training requirements for all personnel in the justice system on the awareness of disability be provided.
That all disability awareness training be informed by people with disabilities;
That skills-based training on working with support persons, advocates and interpreters be provided to all personnel in the justice system.
That skills-based training in the use of alternative formats, communications and assistive technology be provided to all personnel in the justice system.
That training about the justice system for professional support persons, advocates, interpreters, and staff in disability services be provided.

Increased access to legal advice and representation

That funding and resources for community legal centres and legal aidservices be increased.
That the structured provision of pro bono representation be increased.
That new disability-specialist advocacy and legal centres be established.
That there be an emphasis on front-end engagement, with professional supervision and support.

Physical access and the built environment

That physical access that recognises the range of disability-related access requirements be provided.
That the provision of physical access recognises the external as well as internal access requirements to the justice system facilities.
That there be agreed and coordinated minimum standards between people with disabilities and the justice system of physical access, design and signage, across the entire justice system.
That there be an agreed and coordinated minimum provision between people with disabilities and the justice system of communications and assistive technology across the entire justice system.
That the audit of access provisions and a review of implementation be a requirement of resource and funding allocations.

Procedural issues

That specialist disability policies and procedures be developed, coordinated and incorporated within mainstream service provision across the justice system.
That realistic practice guidelines, informed by local contexts, resources and expertise, be developed, coordinated and incorporated within the justice system.
That clear professional boundaries and negotiated client agreements be developed and produced in accessible formats.
That attitudinal bias, camouflaged as procedural requirement, be challenged as a matter of urgency.
That the integral recognition of the role, status and use of support persons, advocates and interpreters be adopted within the justice system.
That the need for greater flexibility in predetermined processes and timeframes be addressed.
That designated personnel, trained and skilled in disability issues and resources, and supported by justice organisations, be made available to people with disabilities.

Flexible service delivery

That flexible work practices be introduced and associated resources be proactively offered and advertised.
That appropriately trained and skilled staff to respond on-site and as required by people with disabilities, be provided.
That a procedure for identifying disability-related requirements be developed and implemented.
That alternative ways of giving evidence, making statements, lodging and making complaints, that will assist the person with a disability, be developed and implemented.
That clear and agreed definitions and role of support persons, advocates and interpreters be developed.
That the availability of support persons, advocates and interpreters at all stages of contact be increased.
That flexible timeframes be built into procedures.
That flexible approaches to address physical access issues be adopted.
That the use of plain English, symbols and alternative formats be adopted in the provision of information.
That the provision and use of TTYs (telephone typewriters for the deaf), communications and assistive technology be increased.
That resources to facilitate flexible service delivery at all stages of contact, and particularly in rural and regional areas, be increased.
That community and support resources be increased.

Monitoring and evaluation

That a systematic procedure of monitoring and evaluation of disability issues across the justice system, to identify barriers to access and participation for people with disabilities, be developed and implemented.
That the procedure for monitoring and evaluation should involve ongoing surveys of service users for feedback.
That services and organisations across the justice system should seek informal and formal feedback from people with disabilities.
That the procedure for monitoring and evaluation of service provision and delivery should be introduced as an ongoing process.
That the procedure for monitoring and evaluation should be based on an established and accountable framework of review and implementation.

Accountability

That perceptions of self-regulation and lack of accountability should be recognised and addressed.
That a positive response mechanism should be developed and implemented;
That accountability mechanisms should be accessible, transparent, responsive, independent and external.
That accountability mechanisms should be advertised widely, routinely and in accessible formats.
That accountability mechanisms should be supported by appropriate resource levels.

Legislative issues

That agreed definitions of disability, reflecting the impact of social and cultural contexts and avoiding the medical model view of individual impairment, be included in legislation.
That clear, simple and relevant information about the application and limits of legislation be provided in alternative formats and community languages.
That legislation involving alternative dispute resolution processes needs to include clear guidelines that relate to access and participation issues for people with disabilities.
That guidelines defining the use of accessible formats, support persons, advocates and interpreters, as integral parts of the process be included within legislation.

Involving people with disabilities

That the personal and professional skills and expertise of people with disabilities be recognised.
That people with disabilities be included in needs assessments, service design, monitoring and evaluation.
That experienced or professional educators, trainers, advisers and consultants with disabilities be engaged.
That people with disabilities be included as members of management committees, advisory forums, and review bodies.
That the input and contributions of people with disabilities should be supported by appropriate resources, assistance and access provisions.

Whole of government approach

That the processes, protocols, referral arrangements be streamlined.
That information and skills-sharing within the justice system be formalised.
That the service provision and delivery to people with disabilities, across departments and jurisdictions, be coordinated.
That a process of flagging from one jurisdiction to the next be implemented.
That a system of networking of specialist services be developed and implemented.

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