Review of equal recognition before the law and legal capacity
for people with disability The Australian Federation of Disability Organisations (AFDO) is pleased to have the opportunity to provide a response to the Equity, Capacity and Disability in Commonwealth Laws issues paper as part of the Australian Law Reform Commission review of equal recognition before the law and legal capacity for people with disability.
AFDO has been established as a primary national voice to Government that fully represents the interests of people with disability across Australia. The mission of AFDO is to champion the rights of people with disability in Australia and help them participate fully in Australian life.
1.0 Equal Recognition Before the Law and Legal Capacity Australian society views ‘disability’ in a deficit context. People automatically associate ‘disability’ with inability and concentrate on the things people with disability can’t do, rather than the contribution they can, and do, make to society.
This deficit context also leads to the assumption that people with disability do not have the legal capacity to make their own decisions. This is particularly the case for people with a cognitive disability, however people with complex communication needs, people with physical disability and people who are Deaf often experience doubt by others about their legal capacity.
The United Nations Convention on the Rights of Persons with Disabilities (the Convention) is clear about the right of people with disability to enjoy equal recognition before the law (Article 12) and it is pleasing to see Australia’s signing of the Convention has initiated this review and other action to bring this right to reality.
One of the most significant of these actions is the advocacy for replacing substitute decision-making with supported decision-making.
Paragraph 25 and 26 of the Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session 2–13 September 2013 (UN Concluding Observations Report) makes specific recommendation on this initiative (see below).
25. The Committee recommends that the State party uses effectively the current inquiry process to take immediate steps to replace substitute decision-making with supported decision-making and provides a wide range of measures which respect the person’s autonomy, will and preferences and is in full conformity with article 12 of the Convention, including with respect to the individual's right, in his/her own capacity, to give and withdraw informed consent for medical treatment, to access justice, to vote, to marry, and to work.
26. The Committee further recommends that the State party provides training, in consultation and cooperation with persons with disabilities and their representative organizations, at the national, regional and local levels for all actors, including civil servants, judges, and social workers, on the recognition of the legal capacity of persons with disabilities and on the primacy of supported decision-making mechanisms in the exercise of legal capacity.
AFDO is a strong supporter of the shift to supported decision-making and its position is clearly stated in Paragraph 187 and 188 of Disability Rights Now – Civil Society Report to the United Nations Committee on the Rights of Persons with Disabilities, August 2012 (see below)
187 Despite these differences, there is agreement among representative organisations of people with disability and disability advocacy and legal groups that Article 12 underpins the ability of people with disability to achieve many of the rights contained in the CRPD and that it requires fundamental reform in the current legal, administrative and service arrangements that regulate legal capacity for people with disability so that supported decision making measures can be recognised, developed and promoted
188 Issues in Australian legislative and policy frameworks, including estate management, guardianship and mental health laws, mean that people with disability experience serious breaches of their human rights, including widespread abuse, neglect and exploitation both because of the lack of appropriate arrangements to support their capacity to manage their affairs, to give informed consent, to make important decisions, and as a result of poorly designed, delivered and monitored supported and substitute decision making arrangements.
2.0 Access to Justice 2.1 Unmet need for support for people with disability to access justice, When people with disability need support to access the legal system they have a number of options. These options include disability advocacy services, state based legal aid, state of federal human rights organizations or community legal services.
Disability advocacy services in Australia are under-resourced and struggle to meet the demands placed upon them. Supporting a person with disability to access the legal system can be complex and is often beyond the capacity of the advocacy organisation both in terms of resources and expertise.
State based legal aid services have budget constraints and much of their work is often directed to criminal cases rather than civil cases. Consequently their ability to support people with a disability through the legal system is limited.
The Australian Human Rights Commission (AHRC) can provide support for people with disability to lodge complaints and provides a conciliation service. However if the complaint is not settled at conciliation, they cannot provide advocacy or legal advice as they are an independent third party. An individual can only pursue a matter in the federal court once terminated by the Australian Human Rights Commission, if they can meet the costs. This situation can also apply to state based human rights organizations and commissions.
Community based legal services, whether specific to disability discrimination or general legal matters, also struggle to meet demand. For example a statewide disability legal service in Victoria has base funding of 2.6 EFT including administration and is unable to meet demand for their services. With some court cases running for several years and hearings scheduled to go for one to four weeks, it is easy to see how people with a disability are disadvantaged by this lack of resources.
More often than not, asylum seekers in Australia are also denied their right to a fair trial and access to justice. One cause of this is a lack of available remedies for detainees exacerbated by the capacity of community legal services to act on behalf of asylum seekers in detention who are facing mental health issues.
2.2 Cost of accessing civil justice Forty-five per cent of the two million Australians living with disability live in or near poverty, according to the Organisation for Economic Co-operation and Development. The Australian Council of Social Service has also released figures showing 620,600 people with disability in Australia are living below the conservative, internationally accepted poverty line used to measure financial hardship in wealthy countries.
High levels of poverty experienced by people with a disability means that the cost of legal services is a real barrier. These high costs are not limited to fees charged by lawyers, courts and tribunals; cost for transcripts, videoconferencing and expert witnesses are often unaffordable.
2.3 Simplicity and usability of the legal system It is fair to say that legal language and process can be daunting and confusing. For people with a cognitive impairment (intellectual disability, learning difficulty or Acquired Brain Injury) the complexities of the justice system can seriously limit their access. Without the necessary support, people with a cognitive impairment may not be able to report a crime perpetrated against them, may not be seen as reliable witnesses and as a result are targeted by perpetrators. Statistics show an over-representation of people with a cognitive impairment as victims of crime.
It is well known that women with disability experience high levels of physical, emotional and sexual abuse. One of the causes of this is access barriers to the legal system. Consequently women with a cognitive impairment are particularly vulnerable to abuse and urgent action is required to address this situation as recommended in paragraph 17 of the UN Concluding Observations Report.
Women from CaLD and/or NESB backgrounds with a disability are usually unlikely to use the justice system, especially in family and civil law. The National Disability Ethnic Alliance (NEDA) strongly suggests that this situation be addressed through programs specifically targeting women from CaLD and NESB backgrounds.
More generally, people with a disability from NESB and CaLD communities experience additional barriers to accessing the legal system. The lack of easy access to interpreting services, the lack of information about the legal system in other languages and the lack of culturally appropriate support services are just a few of the barriers that need to be addressed.
NEDA also believes it is important to ensure information about the legal system is readily available to newly arrived migrants, refugees and asylum seekers so that they are aware of the legal system in Australia through culturally and linguistically appropriate information. More importantly the fear of authority which may exist amongst diverse communities may result in a lack confidence to report a crime.
NEDA also points out that it is discriminatory if there is no legislation in place to ensure that people with a disability from NESB and/or CaLD backgrounds have free access to an interpreter in civic or criminal trials. In many jurisdictions, Australian courts play no role in civil proceedings in organising an interpreter to be present or to ensure that the services of an interpreter are available where required (Source: Human Rights Law Centre). NEDA believes that persons with disabilities from CaLD and/or NESB backgrounds have a right to an interpreter in ALL criminal and civil proceedings.
Similarly, there is no legal recognition of the right of people who are Deaf to have access to Auslan interpreters when using the legal system. AFDO believes that people who are Deaf have a right to an Auslan interpreter in all criminal and civil proceedings.
In addition to this, people with a cognitive impairment may not be aware of their legal rights, may be confused at police interviews and in court, which could result in a miscarriage of justice. Statistics show an over-representation of people with cognitive impairment in prison. This situation is far worse for Aboriginal people with a disability. Additional language and communication barriers have led to extreme over-representation of Aboriginal people with a disability in prison.
The issues mentioned above can also be experienced by people with psychosocial disability (mental illness). When a person with a psychosocial disability is unwell, they need intensive support to access the justice system. With under-resourcing of the mental health system, community legal services and advocacy services, it is likely people with psychosocial disability will have difficulty accessing the justice system. Statistics also show an over-representation of people with psychosocial disability in prison.
People with disability communicate in different ways and can have more complex communication needs. Access to justice can be seriously affected if people with a disability do not have access to alternate communication methods when interacting with the justice system. For example, people who are Deaf need access to Auslan interpreters, people who are non-verbal need access to electronic communication devices and people with cognitive impairment may need information in easy English or pictorial formats.
People who work in the justice system need to be familiar with the access and communication needs of people with disability and be required to undertake relevant training. This view is supported in Paragraphs 27 and 28 of the UN Concluding Observations Report.
People with disability need to have access to information about the justice system in a format they can understand. Organisations working in the justice system must provide information in a range of formats including large print, Braille, audio, easy English, electronic formats and in other languages, including Auslan (Australian Sign Language). This is not difficult to do and setting up systems to provide information in these formats and other languages should be mandatory within the justice system.
Some people with disability have difficulty using public transport and accessing the built environment. Getting to appointments and accessing buildings may be a barrier for people who have physical or sensory disability to access the justice system. It is important that all physical and communication infrastructure used in the justice system is compliant with Australian Standard 1428 and current Building Codes to ensure access for people with a disability.
If access to transport is an issue, people working in the justice system should have mechanisms in place to assist people with a disability to get to and from appointments.
3.0 Commonwealth Laws and Legal Frameworks A major part of this review is to examine Commonwealth laws and legal frameworks to identify any instances where the right of people with disability to equal recognition before the law or their ability to exercise legal capacity is denied or diminished, and recommend any required changes.
To ensure that all existing and new Commonwealth laws and legal frameworks are consistent with the Convention, AFDO recommends the following:
That all current Commonwealth laws and legal frameworks are tested against a ‘Compatibility Framework’, and,
That all proposed Commonwealth laws and legal frameworks submitted to the Parliament for consideration must be accompanied by a ‘Statement of Compatibility’ based on the ‘Compatibility Framework’.
That the Australian Human Rights Commission maintains a register of Statements of Compatibility to monitor the compliance of Commonwealth laws and legal frameworks with the Convention.
This process is similar to a requirement in Victoria that all proposed legislation be accompanied by a Statement of Compatibility with the Victorian Charter of Rights and Responsibilities. The Victorian Equal Opportunity and Human Rights Commission maintain a register of Statements of Compatibility as part of its monitoring role of the implementation of the Charter.
AFDO also recommends that the ‘Compatibility Framework’ addresses the following questions:
Does the current or proposed Commonwealth law or legal framework impose conditions that discriminate against people with a disability? This could be conditions that treat a person with a disability less favorably than a person without a disability (direct discrimination) or imposing a condition that disadvantages or excludes a person with a disability (indirect discrimination).
Does the current or proposed Commonwealth law or legal framework make blanket assumptions regarding the legal capacity of people with a disability?
Does the current or proposed Commonwealth law or legal framework have provisions which facilitate supported decision making processes?
Does the current or proposed Commonwealth law or legal framework include adequate independent monitoring processes to protect the rights of people who require supported decision making?
Does the current or proposed law or legal framework take account of the additional needs of women with a disability, Aboriginal people with a disability or people with a disability from non-English speaking backgrounds and culturally and linguistically diverse communities?
Is the current or proposed Commonwealth law or legal framework written in language that is easy to understand and minimises to use of complex terms and jargon?
Is the current or proposed Commonwealth law or legal framework available, or will be available, in alternate formats including large print, Braille, easy English, Auslan, audio and electronic formats?
Do the websites where the current or proposed Commonwealth law or legal framework is located comply with WC3 Web Accessibility Guidelines at least to AA level?
Does the current or proposed Commonwealth law or legal framework provide options for people to communicate with specified departments or organisations using a range of formats including Braille, audio and electronic formats, or by personal interviews for people with complex communication needs?
Does the current or proposed Commonwealth law or legal framework contain provisions to provide, and cover the cost of, Auslan interpreters, captioning and audio loops for people who are Deaf?
For further information regarding this response, please contact Bill Lawler on
03 9662 3324, or 0448 807 852, or firstname.lastname@example.org