Submission: People with Disability and the Criminal Justice System (2020)

Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

1. Introduction

1. The Australian Human Rights Commission (the Commission) welcomes the opportunity to provide this submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission).
2. The Commission is Australia's National Human Rights Institution, with recognised independent status and roles in United Nations human rights fora. The Commission's purpose is to provide independent and impartial services to promote and protect human rights and fundamental freedoms. The Commission undertakes a range of policy development and research tasks that aim to promote compliance with Australia's human rights obligations, while also investigating and conciliating complaints of unlawful discrimination and breaches of human rights.
3. The Royal Commission provides an important opportunity to prevent and redress violence, abuse, neglect and exploitation of people with disability. More generally, the Royal Commission has the potential to play a key role in upholding the equality, dignity and autonomy of people with disability and ensuring their full participation and inclusion in Australian society. Ultimately this will benefit all Australians, with and without disability.

4. The Commission emphasises the need to ensure that people with disability are at the centre of all aspects of the Royal Commission's work and that they are provided with adequate support services throughout the process. Particular efforts are needed to ensure that the Royal Commission is accessible to Aboriginal and Torres Strait Islander people with disability, culturally and linguistically diverse (CALD) people with disability, and those from rural, regional and remote areas of Australia. In this regard, the Commission welcomes the development and publication of the Royal Commission's Accessibility and Inclusion Strategy. [i]

5. The Commission welcomes the endorsement of a human rights-based approach in the Royal Commission's Terms of Reference. The Commission also welcomes the recognition in the Terms of Reference of the intersectional nature of discrimination and disadvantage, noting that the specific experiences of people with disability are multi-layered and can be influenced by experiences associated with age, sex, gender, gender identity, sexual orientation, intersex status, ethnic origin and race.
6. The Commission is well placed to assist the Royal Commission by providing a human rights framework to guide the development of findings and recommendations within the Terms of Reference. The Commission will provide a number of written submissions on specific issues raised by the Royal Commission in the course of its work. In addition, the Commission would be happy to appear before the Royal Commission and to provide further clarification on its submissions or other issues of interest to the Royal Commission.

7. This submission addresses the interaction of people with disability with the criminal justice system in Australia, which was the focus of the Royal Commission's Criminal Justice System Issues Paper [ii] (Issues Paper) released in January 2020. This submission focuses on issues raised by questions two, three, seven and eight of the Issues Paper.

8. The Commission welcomes the selection of criminal justice as the fourth topic of consideration for the Royal Commission. To ensure equality before the law and access to justice for all, the criminal justice system must seek to better understand the lived experience of people with disability. This requires participants across the criminal justice system, from police to judges, prosecutors to prison staff, to be better educated about disability (particularly intellectual and psychosocial disability) and to have options available to accommodate the needs of people with disability. Making accessibility and inclusion a central tenet of justice will have a significant impact on the treatment and prevalence of people with disability in the criminal justice system.
9. This submission provides: an overview of the international and domestic frameworks relevant to the criminal justice system and its interaction with people with disability; an analysis of the rights to equal recognition before the law, access to justice and liberty and security of person for people with disability in Australia; and a number of concrete recommendations to improve Australia's compliance with its international obligations and protect the rights of people with disability who interact with the criminal justice system in Australia.

[i] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Accessibility and Inclusion Strategy (December 2019) .

[ii] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, The Criminal Justice System Issues Paper (January 2020) .