Discrimination against people with a disability is widespread in Australia’s justice system, according to a damning report soon to be released by the Human Rights Commission (HRC).
It will recommend that each state urgently develop a strategy to ensure people with a disability are treated fairly before the courts and their rights are respected.
One of the cases featured in the HRC’s Equal Before the Law report is that of Melissa Avery, who has a severe intellectual disability.
However, it took some time for the Queensland justice system recognised it.
Over a period of four years, she received multiple minor convictions for petty theft after repeatedly stealing colourful calendars and greeting cards.
Ms Avery received so many convictions that she was at risk of being sent to jail. But her disability was not taken into account by the court system.
Her mother Collein says it took years of lobbying before her daughter’s limitations were acknowledged by the courts.
“She has absolutely no understanding of the charges she’s being faced with. She couldn’t defend herself,” she said.
“Eventually, another lawyer took over our daughter’s case. He was able to refer the case to the Mental Health Court.”
Ms Avery was eventually found permanently unfit to plead as a result of her intellectual disability.
“So we decided to appeal those early convictions that she had,” Collein Avery said.
In a landmark decision in 2010, the Supreme Court expunged 15 convictions from her criminal record.
Disability Discrimination Commissioner Graeme Innes says people with a disability are not getting an equal opportunity before the law.
“We heard from a woman called Maria who has cerebral palsy and little speech,” he said.
“She wanted to tell police about a sexual assault but there was no communications support worker to help with the statement.
“The police relied on Maria’s parents to provide communication support.
“Maria was, of course, uncomfortable giving personal details of the assault to police in front of her parents.
“So her evidence was incomplete, and this caused problems for the investigation and during the court process.”
The report recommends that each state urgently reform the legal system to ensure that people with a disability are not further discriminated against, Mr Innes says.
“We recommended that each jurisdiction – state, territory and Commonwealth – need to develop a holistic disability justice strategy… which is developed in partnership with people with disabilities,” he said.
“That strategy would need to cover the availability of supports, the availability of better communication facilities, more training for police and corrections officers, more awareness of disabilities in the court system, some revisions of the ‘unfit to plead’ laws in several jurisdictions, and also some corrections of the negative way in which people with disability are perceived.
“That negative perception leads on to the weight that their evidence is given and judgments about whether matters should be proceeded with or how they should be proceeded with.”