Where disability intersects with other laws

• Criminal justice system

  The DRC reported on serious issues with equity and outcomes for people with disability in relation to the criminal justice system. The DRC stated (vol 8, p 3):

  The statistics are stark. ... It is clear people with disability – particularly those with cognitive disability – are disproportionately represented in criminal justice settings, across all stages, from police contact and arrest, through to court processes and correctional settings. The disproportionate rate of imprisonment of people with disability is not the result of any inherent relationship between disability and crime. Rather, it reflects the disadvantages experienced by many people with disability, such as poverty, disrupted family backgrounds, family violence and other forms of abuse, misuse of drugs and alcohol, unstable housing and homelessness.

  It is crucial that any lawyer representing a client with disability in relation to the criminal charges has a solid understanding of their rights and the options available.

  These rights include:

  • the right to legal advice, assistance and rep-resentation for victims, witnesses, alleged offenders, offenders and prison inmates at all levels of the criminal justice system;

  • the right to treatment at all levels within the criminal justice system (including by police, courts, corrections) that is free from discrimination on the basis of disability (EO Act; DD Act) and that meets the specific disability-related needs of the person;

  • the right to report a crime and to have such assistance as is necessary to do so (Police Operating Procedures, an independent third person (ITP));

  • the right to full consideration of their disability/ cognitive impairment in court or tribunal proceedings including appropriate legal and practical advice, assistance and representation in such proceedings (EO Act; DD Act);

  • the right to diversion where available (diversionary programs);

  • the determination whether the person is fit to stand trial and/or the defence of mental impairment (CMIUT Act);

  • the consideration of their disability upon their being sentenced where found guilty of a crime (Sentencing Act);

  • in relation to their correctional placement, services, employment and education (Sentencing Act; D Act; MHW Act); and

  • equality of opportunity with other prisoners who do not have a disability (EO Act; DD Act).

• Independent Third Person Program

  Police Operating Procedure 4.6.3.2 requires that an ITP be present when police officers are interviewing a victim, suspect or witness who has an intellectual disability, a mental health issue or cognitive disability (e.g. acquired brain injury; dementia).

  The ITP Program is coordinated by OPA. ITPs are community volunteers appointed by OPA and are available 24/7 across Victoria.

  ITPs provide support to people by facilitating communication, helping the person understand and exercise their rights and assisting the person through police processes and procedures.

• Correctional facilities and programs

  Correctional facilities and programs are subject to the provisions of the EO Act and the DD Act relating to the provision of services. Also, the Corrections Act 1986 (Vic) (s 47(1)) states the rights of prisoners:

  If intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the governor’s approval, outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances.

  For more information, see Chapter 3.8: Imprisonment and the rights of people in prison, and Chapter 8.3: Disability and criminal justice.

• Corrections Independent Support Officer Program

  Corrections Independent Support Officers (CISOs) are community volunteers who assist and support people with a diagnosed intellectual disability in all Victorian prisons during General Manager’s Disciplinary Hearings. These hearings occur when prisoners are charged with a breach of the internal prison management regulations or rules.

  CISOs ensure the person is provided with the best opportunity to understand and actively participate in the hearing. The role of a CISO is to:

  • provide information to the person about the disciplinary hearing procedures;

  • provide information about their rights during the process;

  • assist with communication; and

  • support the person during the hearing. The CISO program is operated by OPA.

• Being a parent

  Parents with cognitive impairment have interaction with the child protection system at a far higher rate than other parents. While the child protection system has a responsibility to ensure the safety of children, it is sometimes discriminatory against parents with cognitive impairment and is not always good at understanding the supports available.

  The Independent Family Advocacy and Support program run by Victoria Legal Aid (VLA) can assist parents with cognitive impairment who have had contact from the child protection system.

  (See ‘Contacts’ at the end of this chapter)

• Civil litigation

  If a person is unable to make decisions about civil legal proceedings, these may be managed on their behalf by:

  • an enduring attorney the person has previously appointed (PA Act s 3; definitions of ‘personal matter’, ‘financial matter’ and ‘legal matter’);

  • a guardian or administrator appointed by VCAT with authority to make decisions in relation to legal proceedings (GA Act s 3; definitions of ‘personal matter’, ‘financial matter’ and ‘legal matter’);

  • a litigation guardian entitled to act pursuant to the authority of a court (Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 15; County Court Civil Procedure Rules 2018 (Vic) ord 15; Magistrates’ Court General Civil Procedure Rules 2020 (Vic) ord 15).

Where disability intersects with other laws

Chapter: 8.1: Understanding disability and the law

Contributor: Philip Grano, Former Principal Lawyer, Office of the Public Advocate; Naomi Anderson, Legal Practice Manager, Villamanta Disability Rights Legal Service

Current as of: 1 September 2024

Law Handbook Page: 703

Next Section: Disability advocacy