22 July 2014

Disability and Justice

The 159 page Victorian Equal Opportunity and Human Rights Commission Beyond doubt: the experiences of people with disabilities reporting crime report comments that
Access to justice and safety are basic human rights, however, people with disabilities in Victoria are routinely denied these because police and other parts of our criminal justice system are ill equipped to meet their needs. 
In Victoria, the right to equality before the law is set out in the Charter of Human Rights and Responsibilities and the Equal Opportunity Act 2010. The Equal Opportunity Act also describes the legal obligations requiring duty holders to make reasonable adjustments to accommodate people with disabilities and to take reasonable steps to prevent discrimination.
People with disabilities face significant and complex barriers when reporting crime to police. We heard that a lack of access to information means that some victims do not know how or where to report a crime. Some may not know that what happened to them is a crime.
Feelings of shame and embarrassment, as well as fear of retribution from the alleged perpetrator, can prevent people from reporting crime. Many participants also said that negative attitudes of police towards their disability made a significant difference to their experience of reporting. Further, people with communication disabilities face considerable hurdles at all points in the criminal justice system. Families and carers of people with disabilities also told us about the challenges of reporting crime, especially the fear of negative consequences for the victim if they made a complaint.
One of the strongest messages in this study is that people with disabilities fear that they will not be believed or will be seen as lacking credibility when they report a crime to police.
Of particular concern to the Commission are the participants who spoke of police refusing to take reports. This can amount to unlawful discrimination under Victorian and federal anti-discrimination laws.
When police have a good understanding of disability, when they believe victims and they take their reports seriously, victims report higher levels of satisfaction with police practice and the justice system.
The majority of police members aim to deliver the best possible service and the Victoria Police leadership is keenly committed to human rights and non-discriminatory practice. There are numerous examples of good work taking place, backed up by sound policies. However, on the ground, performance is mixed.
What makes the difference is the quality of that very first interaction between people with disabilities and police, and consistent follow-up by police members. This is largely informed by the skill and attitude of individual police members. However it is also determined by the overall culture of what is a very large and complex organisation. 
Obligations under Victorian equal opportunity and human rights laws 
Victoria Police Under the Equal Opportunity Act Victoria Police have obligations not to discriminate and to make reasonable adjustments when taking a report. Charter rights to equality before the law and freedom of expression, including the right to receive information, also apply when police take a report. When police investigate crimes, they are generally not delivering a service under the Equal Opportunity Act. However, they are still required by Victorian law and Victoria Police policy to adjust their practices to meet the diverse needs of victims. Ongoing police communication with victims continues to be a service and Victoria Police’s obligations to make reasonable adjustments under the Equal Opportunity Act apply. 
Service providers 
All disability, mental health services and Supported Residential Services, are bound by the Equal Opportunity Act. This applies to unfavourable treatment because of a person’s disability and to systems, policies and practices that are not reasonable and which may disadvantage people with disabilities. This can include policies that fail to appropriately respond to crimes because they happen to people with disabilities. Service providers also have legal obligations under the Charter to provide an abuse-free environment and to observe human rights when responding to allegations and conducting investigations. 
Under the Equal Opportunity Act a court hearing is considered a public activity rather than a service to a particular individual. However, people with disabilities have a right to equal access to courts. Courts are bound by the Charter to act compatibly with human rights and to give proper consideration to human rights when they are exercising their administrative functions.
In addition, the courts have functions under Part 2 of the Charter, which sets out all of the rights. While courts are not always obliged to take into account all of the human rights in the Charter, they have a clear role and obligation to ensure that people with disabilities have equal protection before the law. This right can only be realised through the work of the courts and other bodies in the justice system. It is important to remember that the court is impartial. This is a central tenet of our legal system. This long standing legal principle is complemented by the right to a fair trial provisions in the Charter. 
Promoting good practice within Victoria Police 
To assist people with disabilities to report crime, police need to be able to identify and understand different forms of disability, and then determine what reasonable adjustments are required to meet different access needs.
Police members, advocates, victims, families and carers all told us this was a major challenge and a key area of need for future professional development.
Participants also told us that communication was a major barrier in their dealings with police. This was the case for people with mild or moderate communication disabilities through to people who are non-verbal.
For those who do make a report, the ability to communicate becomes crucial to giving a complete and accurate interview, as well as to understanding what is happening as the investigation proceeds.
For police, a lack of information and the ad hoc nature of various support services can hamper their ability to promote good communication for people with disabilities at the reporting and interview stages. This can also have a profound impact on the effectiveness of their investigations and, therefore, on the likelihood of a successful prosecution.
Improving accessibility within Victorian courts
While our focus was mainly on police practice, the Commission’s study confirmed that other key parts of Victoria’s criminal justice system are not built for accessibility.
We found that while some progress has been made, basic adjustments are not always made to adapt court practices and facilities to meet the access needs of witnesses with sensory, physical, learning or communication disabilities.
A successful prosecution remains the exception rather than the rule when the victim has a disability. Police members we interviewed consistently identified challenges in presenting evidence to the court as the biggest barrier to gaining a conviction. Some felt the Evidence Act 2008 (Vic) tied their hands and was not flexible enough to meet the requirements of people with disabilities, particularly those with communication disability. Others felt that defence lawyers would vigorously pursue the argument that the victim lacked credibility. Prosecutions can and do succeed when agencies adjust their practices to meet the access needs of people with disabilities, assess these needs prior to the hearing and ensure the court is aware of them.
However, for many people with disabilities, getting a ‘win’ is as much about the right to participate in court as it is about the court outcome. To maximise their participation, more effort is needed to address negative attitudes among legal practitioners and court personnel and to ensure that appropriate standards of conduct are met at all times.
Improving safeguarding in services
People with disabilities may live in environments that leave them socially isolated. As a result, they can face very specific barriers to justice because the crime they experience happens behind closed doors.
It is important to remember that most disability services are delivered in a way that does not put people at risk of violence. However, as recent high-profile cases have shown, abuse can occur.
People in some services can experience violence and abuse at the hands of staff or another resident. In some services, this violence may become normalised because it happens frequently or because staff justify their actions as an appropriate way to manage challenging behaviour. Further, people with disabilities can also be subjected to unnecessary restrictive practices, if communication assessments and behaviour supports have not been put in place by staff or when they are not effectively implemented or monitored.
The Commission heard that services where violence and abuse is normalised are more likely to treat crimes involving people with disabilities as ‘incidents’ requiring an internal investigation, rather than as matters to be reported to the police. Where a crime is reported, we were told that police may be unlikely to investigate and may refer the matter back to the service for internal review.
It is crucial that service investigations are robust, comprehensive and conducted by skilled investigators and do not occur in place of police investigations. While there is policy and procedure developed by the Department of Human Services on these matters, some participants identified serious shortcomings in these systems and actual investigations. This highlights the importance of bolstering workforce capability across the service system and taking a comprehensive approach to safeguarding in both policy and practice, and in prevention and response.
People with disabilities must be empowered to report and make choices about what happens when they report. Rights-based knowledge and practice is essential to ensuring people experience justice and safety. The Commission recognised some important work being done in the self-advocacy sector and by services in educating people about their rights. People with disabilities should be involved in the development and delivery of training to people working with them, to share expertise and build respect for the perspective and knowledge of people with lived experience. Peer-led education, advocacy and self-advocacy should be a priority of service delivery.
Making justice for all a reality
Victims of crime with disabilities must be able to access consistent support, when they need it and for as long as they need it, across the justice process.
Most of the Commission’s recommendations (see page 18) are designed to support Victoria Police to fulfil its commitment to better meet the needs of people with disabilities reporting crime.
A central recommendation is for Victoria Police to develop a Code of Practice for responding to victims and witnesses with disabilities. There are currently two Codes of Practice for Victoria Police – Code of Practice for the Investigation of Family Violence and Code of Practice for the Investigation of Sexual Assault. The development and implementation of these codes has resulted in significant cultural change within police and increased confidence of victims to report crime.
In common with the existing codes, our recommended code would respond to victims of crime that require a specialist response. Further, experience shows that the consultation and cooperative effort in the development of a Code of Practice utilises existing expertise, builds important community relationships and works to build consistent support and referral pathways, all of which enhance police capability and build trust in the system.
The Commission acknowledges the important role that police play in upholding the rights of people with disabilities and the commitment shown by the leadership of Victoria Police and frontline police in improving their services to this group. We appreciate the cooperation and support provided by Victoria Police throughout this project and look forward to working with it to implement this report’s recommendations. However, the Commission also recognises that Victoria Police is just one part of a complex system. To ensure that people with disabilities are able to access justice on an equal footing requires a coordinated, whole of government commitment to improving responses throughout Victoria’s broader justice and human services and health systems.
Accordingly, this report makes recommendations regarding those areas where we have established a clear link with issues relating to the incidence and reporting of crimes against people with disabilities.
Our goal is to ensure that Victoria has an accessible, consistent and comprehensive system to respond to the experience of crime, which considers the preferences and needs of victims and empowers them to participate more fully in the process. Access to justice for people with disabilities should not be a matter of luck. It is a basic right for everyone.
The Commission makes the following recommendations
Victoria Police 
Victoria Police should demonstrate its commitment to ending disability discrimination by including the following actions in the Victoria Police Disability Action Plan (due for release in 2014). 
Victoria Police should: 
1. 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. 
2. Modelled on the existing Victoria Police Family Violence Adviser role, Victoria Police should develop a complementary network of Disability Advisers and work with people with disabilities and relevant organisations to build and share practice knowledge, and strengthen community partnerships across the state among all police members. 
3. Under the Victoria Police Education Master Plan, 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. 
4. Develop a bystander response for police members who witness discrimination. This should include training for senior sergeants, and local area commanders on a proactive approach to challenging discriminatory stereotypes and language. 
5. Gain and maintain Communication Access accreditation according to the advice of Scope. Using a staged approach, Victoria Police should achieve accreditation across the state by 31 December 2017. In the first instance, Easy English versions of Victoria Police standard forms and written information for victims should be made available. These should also be made available in Auslan video on the Victoria Police website. This work should commence immediately. 
Victoria Police and the Office of the Public Advocate 
6. Update the Independent Third Person ready reckoner to improve the identification of people who have disabilities and uptake of Independent Third Persons for victims of crime. All police members should be required to complete compulsory online learning and testing on use of Independent Third Persons by June 2015, and then on an ongoing basis at least every three years. 
Victoria Police and Department of Justice 
7. 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. This model should be developed in a way that ensures it is adaptable to other systems. 
Department of Justice 
8. In cooperation with other departments, statutory agencies and Victoria Police, undertake trend analysis of the prevalence of crime against people with disabilities in Victoria to inform improvements to responses, including early intervention and prevention, and to assist in improving and streamlining cross-sectoral supports. 
9. Examine options for amending the Criminal Procedure Act 2009 (Vic) to: a) provide for special hearings for indictable offences involving an assault, injury or threat of injury b) extend special hearings to people with communication disabilities c) consult with relevant stakeholders including judicial members and the legal profession on options for reform. 
Judicial College of Victoria 
10. Amend 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. 
11. Collaborate with the Victorian Equal Opportunity and Human Rights Commission to develop educative resources that specifically address making adjustments for people with disabilities. Over time, this should form part of a broader suite of resources to assist the courts to meet the diverse needs of people across all attribute groups. 
Court Services Victoria 
12. Prioritise disability accessibility and drive implementation consistently across jurisdictions. Priorities include hearing loops and space for mobility aides in court rooms across jurisdictions. 
Victoria Police, Department of Health and Department of Human Services 
13. In order to improve consistency of response when a crime against a person with disability occurs in a service setting, and to reflect the standards in the Victims of Crime Operating Procedures and the recommended Code of Practice, local arrangements such as Standard Operating Procedures should be enhanced to provide for stronger, minimum standards around response times, communication on progress and status of matters. These should be reflected in associated protocols with the Department of Human Services and Department of Health and in practice directions to service staff. 
Department of Human Services and Department of Health 
14. Building on existing efforts, and as part of a comprehensive approach to safeguarding, the Department of Human Services and Department of Health should: a) Issue comprehensive practice guidelines on when and how to report to police, how to effectively and pro-actively engage with police, navigating the criminal justice system, services and referral pathways, empowering victims to make choices about the process, appeal and review options, and minimum standards for conducting service investigations. b) Deliver training for departmental and funded services staff on preventing, recognising, responding to, and reporting violence, abuse and family violence, including focused efforts to support management to strengthen supervision and recruitment processes. c) Promote prevention, rights awareness and improved response by continuing to support peer-led education, advocacy and self-advocacy by people with disabilities. 
Victorian Government 
15. The Victorian Government should prohibit persons who have been found to have abused, assaulted or neglected a client of a disability, mental health and other service for people with disabilities from working or volunteering in such services by placing them on a register of unsuitable persons. This scheme should include an independent mechanism to determine the suitability of persons to continue to work with adults with disabilities. Subject to evaluation, it should be the first step in the development of a more comprehensive registration scheme for those delivering services to adults with disabilities. 
16. Consistent with the Charter of Human Rights and Responsibilities Act, and recognising that a lack of communication supports may lead to the unnecessary use of restrictive interventions, the Department of Human Services and Department of Health should ensure all service users who require a communication assessment and plan have one, and that this is implemented and monitored. To achieve this, the Victorian Government should ensure that this is resourced and priority should be given in the first instance to people subject to restrictive interventions.