Submission into the Victorian Government (Department of Justice and Regulation) Access to Justice Review 2016

Communication Rights AustraliaSubmission into the Victorian Government (Department of Justice and Regulation) Access to Justice Review 2016

Monique SweetlandMarch 2016

Jan AshfordCEOCommunication Rights AustraliaEmail: jashford@communicationrights.org.au

Introduction

Communication Rights Australia is a human rights information and advocacy organisation which works in partnership with people who have communication difficulties. People request our service when they experience discrimination and isolation or exclusion.

We represent a range of people on a continuum from severe speech and communication difficulties, such as Autism Spectrum Disorder, acquired brain injury, illness (such as Motor Neurone Disease, stroke, mental health, physical and sensory impairment, intellectual disability), through to children whose capacity to communicate impacts on correctly and consistently sending their message (such as Apraxia). People approach us when their ability to communicate their message is impacting on their ability to access their human rights.

Communication Rights Australia uses the UN Convention on the Rights of People with Disabilities, Victorian Charter of Human Rights and Responsibilities Act, disability discrimination legislation and government policies to ensure people can enjoy their rights. Our activities promote change and facilitate inclusion into community activities.

Due to gaps in data collection tools, reliable data on the prevalence of speech and language disorders is patchy, but according to the ABS Australian Survey of Disability, Ageing and Carers, in 2012 there were 215,000 Australians under age 65 with a disability who require assistance with communication - this includes people with profound or sever speech/language limitations. This equates to 1 in 100 Australians so affected.

According to recent research, people with a disability, including speech disabilities, had significantly higher prevalence of legal problems than the general population (Law and Justice Foundation of NSW, Legal Australia-Wide Survey: Legal Need in Australia, 2012)[footnoteRef:2]. [2: While the LAW survey was relatively broad - involving 20,716 telephone interviews with household residents approximately equally spread across the States and Territories, with households randomly selected using random digit dialling - it is recognised that it did not reach some demographic groups key to the focus of our submission, namely people in residential care settings or people unable to complete a phone interview (Law and Justice Foundation 2012, p54).]

Focus of our submission

The focus of our submission relates to the second part of the Review’s aim, being “ensuring the most disadvantaged and vulnerable in our community receive the support they need when engaging with the law and the justice system”. In particular, our submission relates to the following terms of reference:

1. “the availability of easily accessible information on legal assistance services and the Victorian justice system”;

4. “potential reform to the jurisdiction, practices and procedures of the Victorian Civil and Administrative Tribunal (VCAT) to make the resolution of small civil claims as simple, affordable and efficient as possible”; and

6. “the availability and distribution of funding amongst legal assistance providers by the Victorian and Commonwealth governments to best meet legal need”.

In relation to (1), our concerns focus on access to holistic information and support for people with a communication disability who have a legal issue, as well as the availability of information for officers WITHIN the justice system, both criminal and civil, on how to support people with communication disabilities to ensure they receive equitable access to the legal system.

In relation to (4) our focus is on changes to practices and procedures that could greatly enhance the equitable experience of people with communication disabilities who find themselves engaging with the justice system through VCAT. We note with concern that this term of reference is restricted to the civil jurisdiction despite overwhelming evidence of significant over-representation of people with disabilities in the criminal justice system, and growing consensus about substantial gaps within the criminal justice system in availability of supports to ensure equitable outcomes. Our submission addresses this area of need, highlighting in particular the need for access to appropriate communicate supports in both the civil and criminal systems.

In relation to (6), our primary concern overlaps with (1), being about the need for adequately resourced legal information and advocacy services that have specialised expertise working with people with communication disabilities.

Right to communicate - Freedom of expression

A large proportion of our advocacy cases and requests for assistance/information relate to issues around access to justice. The situations and incidents at issue in these cases vary widely, but they all have one common thread: people being denied their right to communicate. This right is enshrined in legislative frameworks applicable in Victoria, most significantly:

· under section 15 of the Victorian Charter for Human Rights and Responsibilities 2006, which provides that “every person has the right to freedom of expression which includes the freedom to seek, receive and impart information…orally; in writing; in print; by way of art; or in any other medium chosen by him or her”; and

· under article 21 of the United Nations Convention on the Rights of Persons with Disabilities which provides that “States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice…including by: …(b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions”.

Despite these legal protections, we continuously hear of people being denied the opportunity to exercise this right. This can amount to discrimination on the basis of a person’s (communication) disability (under DDA 1992 s6(2) and UNCRPD Art 5), and a breach of their right to freedom of expression (under VCHR 2006 s15 and UNCRPD Art 21). The single greatest challenge for the people we work with, particularly in matters relating to access to justice, is getting access to appropriate communication support tools. Without access to a functional method of communication, a person with a communication disability is effectively being denied full participation in the service being provided. The tools may be simple (eg visual word cards) or technologically sophisticated (eg speech generating device), they may be a device (eg ipad) or a communication partner. Access to an appropriately trained communication partner or independent communication support person is essential from the point of police interview through to trial. This role should also be utilized for victim impact statements.

Regardless of the type, these tools exist and are readily available across Victoria. Yet still too often we hear of people being denied the right to use such supports. The reasons these supports are not always accessible to people include:

· lack of awareness of the existence/availability of such supports/tools;

· misperceptions about the cognitive capacity of people with communication disabilities, and therefore lack of understanding about the usefulness of communication supports for particular people;

· lack of resources preventing their acquisition/use; and

· lack of use because service providers have not been trained to use them.

In the context of the justice system, without access to such supports, people with communication disabilities face, in the words of VEOHRC, “considerable hurdles at all points in the criminal justice system” (Beyond Doubt: The experiences of people with disabilities reporting crime, 2014, p9). In the civil context, it has been noted that people with a disability stood out as the disadvantaged group with the highest prevalence of legal problems - across most problem types, i.e. accident/injury, consumer, credit/debt, education, employment, family, general crime, government and housing problems - as well as lower levels of resolution (Law and Justice Foundation of NSW, Legal Australia-Wide Survey: Legal Need in Australia, 2012 (“the LAW survey”)).

As the diagram on the following page illustrates (in the context of the criminal justice process), the hurdles include:

· being prevented from making statements to police;

· cases not proceeding to court on basis of ‘lack of evidence’; and

· testimony in court not being accepted due to misperceptions about lack of credibility and/or cognitive capacity arising from communication disability.

The longer term implications of these hurdles are significant and create further barriers:

· lower rates of reporting because people don't think their cases will be fully and fairly considered;

· people fearful of repercussions if they do report and matters are not adequately resolved;

· crime statistics not accurately reflecting the full extent of incidents involving people with communication disabilities, due to underreporting and/or low rates of convictions.

In the criminal justice context, the result of these barriers is a “heighten[ed] vulnerability of people with disability to further harm because the perpetrator is aware that charges are less likely to be brought or prosecuted than if the victim were a person without disability” (ALRC, Final report: Equality, Capacity and Disability in Commonwealth Laws, Aug 2014, p224-5, quote from the Tasmanian Anti-Discrimination Commissioner to the ALRC inquiry).

In the civil context, the consequences include lower rates of resolution of legal problems (as indicated by the LAW survey) and further entrenchment of social exclusion (LAW survey, p233).

Incidents involving people with communication disabilities

Report made to police

Report accepted

Don’t report because think case won’t be fully and fairly considered

END

Don’t report because fearful of potential repercussions

END

Matter proceeds to court

Report not accepted because no communication supports provided to enable sufficiently detailed statement to be taken

END

Matter doesn’t proceed to court because of misperceptions about cognitive capacity of witness/victim and/or lack of awareness of communication tools available

END

Negative outcome because testimony not given sufficient weight due to misperceptions about credibility based on communication disability and/or lack of availability of appropriate communication supports

END

Equitable access to legal process complete

Legal assistance services

The LAW survey reports “lower levels of finalisation for people with a disability in most jurisdictions” and notes that a number of factors could contribute to this reduced capacity to achieve legal resolution, including poor knowledge about legal rights and remedies, poor literacy levels and communication skills, high rates of a broad range of often substantial legal problems, as well as health and other non-legal needs which may complicate their ability to pursue legal resolution (p233). As a result, considerable legal and non-legal support is often required in order to support such people to address their legal problems effectively. This was recognised in the LAW survey:

“Not only are people with a disability more likely to experience legal problems by virtue of their disadvantaged status, but the impact of their legal problems may further entrench their social exclusion (Coumarelos et al. 2006; O’Grady et al. 2004; Pleasence 2006). The multiple legal and non-legal problems faced by people with a disability indicate that they may require both legal assistance and broader non-legal support in order to achieve complete resolution of their legal problems” (p233).

What is needed is well-resourced services that can provide holistic information and support, and that have specialised expertise in working with people with communication disabilities. The time needed to provide effective support can be considerably longer than in the case of a person without disability, due to their communication needs as well as the complexity of their situation i.e. overlapping legal and non-legal problems. This is currently not the case, with the few organisations currently providing legal, information and advocacy support to people with communication disabilities severely under-funded. However, the investment is undoubtedly justifiable on the basis that “access to justice is an important route to tackling social exclusion” (LAW survey, p206).

Misperceptions about competency and credibility

A major hurdle to access to justice is misperceptions by officers within the justice system about the competency and credibility of people with communication disabilities. This has been acknowledged in numerous recent reports by independent authorities, for example:

· the AHRC reported in 2014 “that people with disabilities frequently experience prejudicial assessments of their competency to give evidence as a witness to criminal proceedings” (AHRC, Equal Before the Law: Towards Disability Justice Strategies, 2014, p21); and

· “police described having to push hard to have briefs authorised [ie allowing matter to go to court] where behaviours that form part of a disability were seen to compromise the quality of evidence and, as a result, the likelihood of a conviction” (VEOHRC, Beyond Doubt: The experiences of people with disabilities reporting crime - Summary report, July 2014, p36).

Yet the reality is that people with communication or other disabilities are just as capable as an average member of the general population in terms of giving reliable evidence. This was noted by the ALRC in its 2014 report Equality, Capacity and Disability in Commonwealth Laws, which cited research by the Judicial Commission of New South Wales establishing that, contrary to public perception, most people with intellectual disabilities are no different from the general population in their ability to give reliable evidence as long as communication techniques are used that are appropriate for the particular person (ALRC, Final report: Equality, Capacity and Disability in Commonwealth Laws, Aug 2014, p225-6).

Failures of the legislative and regulatory frameworks - the need for amendment

Without explicit provisions in relevant regulatory instruments, these misperceptions will perpetuate. This is the current situation in Victoria - evidence laws, codes of practice for police and judicial officers and police training manuals do not currently adequately acknowledge the particular vulnerable status of people with communication difficulties nor unambiguously guarantee that the right supports are given to these people[footnoteRef:3]. [3: This situation is not exclusive to Victoria. Indeed, in its 2014 report Equality, Capacity and Disability in Commonwealth Laws, the ALRC identified similar gaps in federal evidence laws and consequently recommended that:the Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support is entitled to give evidence in any appropriate way that enables them to understand questions and communicate answers (recommendation 7-9); andthe Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support has the right to have a support person present while giving evidence, who may act as a communication assistant; assist the person with any difficulty in giving evidence; or provide the person with other support (recommendation 7-10).The AHRC similarly reported that access to justice in the criminal justice system for people with disability who need communication supports, or who have complex and multiple support needs, is a “significant problem in every jurisdiction in Australia” and recommended “that each jurisdiction develop an 'holistic, over-arching' disability justice strategy” (AHRC, Equal Before the Law: Towards Disability Justice Strategies, 2014). The Commonwealth Senate Community Affairs Reference Committee has very recently noted “that South Australia is the only jurisdiction so far to implement a disability justice strategy consistent with [the ALRC’s 2014] recommendation, and the Queensland Department of Justice and Attorney-General is in the process of implementing a disability service plan” (Report into Violence Abuse and Neglect Against People with Disability, November 2015, p35).]

Currently, the Victorian Charter for Human Rights 2006 enshrines the right of people charged with a criminal offence to have “the free assistance of assistants and specialised communication tools and technology if he or she has communication or speech difficulties that require such assistance” (s25(2)(j)), yet this right is not extended to other people who may come into contact with the justice system, such as as victims or witnesses. The Evidence Act 2008 (Vic) does allow a witness who cannot speak to give evidence by “any appropriate means”, including through an “interpreter” (see sections 30 and 31). However, as noted by VEOHRC in its 2014 Beyond Doubt report, the Evidence Act 2008 “does not provide guidance about what these are and courts remain cautious about using Augmentative and Alternative Communication. In addition, provisions that allow flexibility in the court system for vulnerable witnesses do not clearly specify that these apply to people with communication disabilities despite the fact they can face significant challenges giving evidence” (p39). A further example of procedural rules creating ambiguity rather than guaranteeing support is the Federal Magistrates Court policy on “speech impaired clients”, which only envisages supporting AUSLAN and CART (a form of shorthand typing), both of which are woefully inadequate for many people with complex communication needs.

The need for legal clarity and guarantees of access to appropriate communication supports is even more pronounced in the tribunal system where the exclusion of the law of evidence risks stripping the existing uncertain safeguards from this already vulnerable group. The common law precedents dealing with modes of communication and interpretation still leave many gaps and uncertainties in respect of people with particular communication needs. It is also notable that although VCAT can hear all or part of a hearing on the basis of documents rather than oral testimony (which could at least present a preferable alternative for many individuals with CCN) this is limited to where both parties agree, and is therefore vulnerable to obstruction by opposing side.

Ultimately the lack of clarity as discussed above means that without:

1. an explicit provision being incorporated within a statutory instrument that provides a right to access their preferred mode of communication; and

2. establishment of an official system for registering and booking people qualified to facilitate augmentative and alternative communication methods

individuals with communication disabilities face an insurmountable hurdle to gaining access to justice[footnoteRef:4]. [4: The failure to amend relevant laws in Victoria continues despite specific recommendations being delivered to the Victorian Government in 2014. In its 2014 Beyond Doubt report, VEOHRC’s recommendations included:“that Victoria Police and the Department of Justice establish a centralised booking system for Augmentative and Alternative Communication for use by Victoria Police, Office of Public Prosecutions, Victorian Legal Aid, Victorian Courts and tribunals, Victims Support Agency and other justice agencies” (recommendation 7); that amendments be made to the Uniform Evidence Manual “to clarify that people with communication disabilities are included in the definition of a vulnerable witness contained in section 41(4) of the Evidence Act 2008 (Vic) and that Augmentative and Alternative Communication may be used by the courts under section 31(2) the Act” (recommendation 10);“that Victoria Police should develop a Code of Practice for responding to victims and witnesses with disabilities, and amend the Victoria Police Manual to put the Code’s standards into operation. The Code should specify legal obligations for reasonable adjustments, guidance on how to make adjustments, as well as support options, including access to services and information, and referral pathways” (recommendation 1); and“under the Victoria Police Education Master Plan, Victoria Police should develop a comprehensive, career-long, learning strategy for all police members to equip them to deliver equitable services to Victorians with disabilities. This should focus on capacity to identify and understand disability, and make adjustments. This should include police at all levels of the organisation throughout their careers, including at points of recruitment, advancement and across the range of roles, including as duty officers, Sexual Offences and Child Abuse Investigation Teams, prosecutors and in leadership” (recommendation 3).]

Recourse to an independent communication support worker could also enable individuals to engage more fully in seeking justice through methods other than the formal justice system, such as by improving their opportunities to present their position directly to lawyers, trustees or others they may have a difference of opinion with. This could both reduce the stress on such people and also reduce the number of cases ending up in the hands of police, courts or tribunals because they could not be solved earlier through independent communication (and therefore reduce the costs to the system).

Lack of awareness of what reasonable adjustments should be made - need for training

Even once misperceptions are overcome, and the legislative and regulatory frameworks amended to clearly enunciate what supports people with communication difficulties are entitled to, the next hurdle is ensuring officers within the legal system are able to identify the particular supports needed in individual circumstances, and how to access them. This does not routinely occur. On the contrary, there is a clear gap in knowledge about what reasonable adjustments can be made, as the following findings from VEOHRC’s 2014 investigation into the experiences of people with disabilities reporting crime demonstrate:

· police identified that knowing how to assist people with “complex communication needs, especially if the person is non-verbal” as one of the biggest challenges (VEOHRC, Beyond Doubt: The experiences of people with disabilities reporting crime - Summary report, July 2014, p29);

· “police…say they feel poorly equipped to make the reasonable adjustments required to communicate with many people with disabilities” (VEOHRC, Beyond Doubt: The experiences of people with disabilities reporting crime - Summary report, July 2014, p51);

· “[w]e found a wide variation in knowledge and equipment that police might use to support effective communication. Sexual Offence and Child Abuse Investigation Teams (SOCIT) members described using picture boards, tablets and other communication aids, drawing on training and having reasonable access to supports. However, general duties police did not have the same knowledge or resources. This creates a problem when they are the first point of contact” (VEOHRC, Beyond Doubt: The experiences of people with disabilities reporting crime - Summary report, July 2014, p22).

Hence, our recommendation in relation to the first term of reference, that officers within the justice system, including police and judicial, need training in this area to better understand:

a. different types of disability;

b. whether certain disabilities do or do not affect cognitive ability, credibility, etc;

c. what supports can assist people with certain disabilities (ie what reasonable adjustments can be made to accommodate people with disabilities so they have equitable access throughout the justice process); and

d. where those supports are available and how to access them.

The establishment of a disability liaison unit within the police force and court systems could similarly provide much needed support to officers in circumstances where they are dealing with a person with communication disability, in order that equitable access to justice is ensured.

Legislative recognition vs implementation

The last hurdle to ensuring equitable access to justice for people with communication disabilities, is the actual availability of the various supports/tools that may be needed in individual circumstances - that is, what is required is guaranteed access to communication supports, whether devices, communication assistants, or other supports, for people with communication disabilities who are involved in the justice system, whether as victims making a report or as witnesses in court proceedings. This critical aspect was noted by the ALRC, which acknowledged that amendment of evidence laws to provide an entitlement to communication supports in itself “does nothing to ensure that support is actually available”, recognising that there is a need for resourcing to ensure the relevant supports are available, not simply a legislative entitlement to them. (On this point, the ALRC points to South Australia as an example of where the resourcing of a service to provide such support was specifically proposed by the Attorney-General in concert with the recommended amendments to the SA Evidence Act around provision of communication supports (ALRC, ‘Final report: Equality, Capacity and Disability in Commonwealth Laws’, Aug 2014, p230).)