Law Reform Committee: access to and interaction with the justice system by people with an intellectual disability and their families and carers

6th March 2013

It gives me great pleasure to rise to speak on the Law Reform Committee’s report on access to and interaction with the justice system by people with an intellectual disability and their families and carers. I certainly concur with and endorse the comments made by previous speakers, who are also members of the committee, on this important report. It was an exceptional privilege to participate in the inquiry and to hear directly from families and carers about the experiences they and their children and loved ones had had with the justice system. It certainly demonstrated that improvements need to be made from the first door to the last door of the system for people with intellectual disabilities and cognitive impairment.

Certainly from my time as a practising lawyer working in a firm that did a considerable amount of personal injury work I know about the problems that can arise for people who have suffered cognitive impairment, acquired brain injury and the like in dealing with questioning, evidence giving and testimony in court. These things can be particularly difficult for people who have these vulnerabilities, and it is important that the justice system as a whole and the government respond to the recommendations made in this report.

We know there is a significant overrepresentation of people with intellectual disability and cognitive impairment in our prison system. This is a disgrace, and it needs to be addressed. Certainly the committee heard a lot of evidence from lawyers and police regarding the fact that a lot of these issues could perhaps be avoided with proper diagnosis at the beginning of the justice process. Many people with intellectual disabilities or cognitive impairments who present to the justice system are not being adequately diagnosed at that point.

They get caught up in the washing machine of the system and often end up at the last stop — the prison system. A lot more could perhaps be done to ensure that those people are diverted away from the prison system and the justice system and into programs and services that could assist them to live full and rich lives.

I would note with my colleague the member for Ivanhoe that while we certainly agreed with the vast majority of the recommendations, we did prepare a minority report on some key issues that we feel are of particular concern and on which the report and the recommendations therein do not in any way, shape or form go far enough.

The first of these issues is regarding parole and accommodation. We feel that the recommendation should be very clear that people with an intellectual disability or cognitive impairment should not be denied parole for the sole reason that there is not suitable accommodation available. That is a significant issue of human rights. We believe it is absolutely inappropriate in our society that people are being forced to languish within the prison system for the sole reason that there are not adequate services in the community to provide for those people.

The second issue we had particular concerns about and wanted to make very strong recommendations on — hence our minority report — is around independent third persons, who are critical in assisting people with intellectual disability and cognitive impairment to navigate the justice system, particularly in the initial questioning or interview phase with police.

We heard that while some districts and some police officers were very experienced and very good in dealing with people who might be butting up against the justice system, that was by no means uniform, and the role of independent third persons was absolutely critical. Hence we have made strong recommendations regarding funding.

Finally, we make strong recommendations in our minority report about the adequacy of funding for Victoria Legal Aid. We know we are seeing daily the crisis that is arising in the justice system. This is particularly an issue for vulnerable people with intellectual disability and cognitive impairment. We believe it is very important that those issues are raised and reinforced, and there needs to be funding for reports and the like.

(Hansard, 2013)