December 2014 — Vol 23/5
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magazine 5
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opinion
While the need for significant reform
in disability services certainly predates
my election to Parliament more than
four years ago, our awareness of
the need for a complete overhaul in
the way the justice system operates
for people with disabilities seems a
newer realisation in Australia. Here
in Adelaide, the case of seven young
school students with intellectual
disability allegedly being sexually
abused by their bus driver back in
2010
made me see red. As if the
abuse perpetrated against young
children was not bad enough, what
added insult to injury for Dignity for
Disability was seeing the case never
proceeding to trial. Justice will not
be served against the person that
perpetrated these heinous acts, yet
these children, vulnerable through
both their young age and intellectual
disability, will live with the impact
forever. Their parents, family and
care givers also cope with the
consequences for a lifetime.
The reasons for the case not
proceeding to trial are complex.
Firstly, South Australia’s Evidence Act
does not allow for hearsay evidence
to be admitted. This means a teacher
or caregiver that is told of a criminal
act perpetrated against a young
person with disability cannot then later
give evidence in court that this was
communicated to them by the victim.
This can make it difficult to gain a
conviction as often children (including
those with intellectual
disability) find it difficult to
remember detail of events
that occurred a long time ago.
However, trials of this nature
often don’t proceed to court until
many months, or years, after the
fact compounding the challenges
and often preventing a conviction.
Additionally, people with intellectual
disability can be regarded as
unreliable witnesses, making it even
more difficult to collect and tender
evidence to the court. Also, the
use of communication facilitators,
common place where victims,
witnesses or offenders don’t use
English as their first language, are not
currently welcome in our courts. The
argument has been that that varying
facilitators could interpret the meaning
of people with communication
challenges differently. But this could
also happen with a foreign language
interpreter!
Most of the barriers demonstrate the
inflexibility of our traditional justice
system, and the need to understand
the current processes in the justice
system prevent fair outcomes.
We need to think more laterally
and remember that just because
something has always been done,
doesn’t mean it’s the right way, or that
it must continue into the future.
Thankfully, we are finally seeing
some progress with South Australia’s
Disability Justice Plan – in both
funding, programs and legislative
change. In late October, the Attorney-
General introduced a Bill that seeks
to balance the sexual autonomy of
people with intellectual disability while
also protecting those that may be
vulnerable to abuse, or exploitative
relationships, from paid staff. It is
based on a New South Wales law
but also recognises that people with
a cognitive impairment have the right
to intimate relationships like the rest
of the community.
The Criminal Law
Consolidation (Sexual Offences –
Cognitive Impairment) Amendment Bill
2014
is the rather complicated title
of the Bill but the hope is that it will
provide a reasonable straightforward
improvement in this area of law and
that we can get this through both
houses of Parliament before we finish
sitting this year.
Hopefully, this is the first of many
legislative steps the South Australian
Parliament makes to improve the
justice outcomes of people with
disabilities.
Dignity for Disability MLC Kelly Vincent
discusses the barriers that people with
disability face within the justice system.
barriers
to Justice
