The Australian Human Rights Commission Report, Equal before the law: Towards disability justice strategies is now available on line at http://www.humanrights.gov.au/publications/equal-law
The Report focuses on people with disabilities who need communication supports or who have complex and multiple support needs and who have come in contact with the criminal justice system. Negative assumptions and attitudes, coupled with a lack of support services and minimal provision of adjustments, often means that people with disabilities are viewed as not credible, not capable of giving evidence or unable to participate in legal proceedings. As a result many are left without effective access to justice. The Report proposes that in light of the substantial challenges that exist, each jurisdiction in Australia should develop an holistic, over-arching response to these issues through a Disability Justice Strategy. The Disability Justice Strategy should address a core set of principles and include fundamental actions that are concerned with appropriate communications, early intervention and diversion, increased service capacity, effective training, enhanced accountability and monitoring, and better policies and frameworks.
TASC supports the recommendations of the Report and continues to support the principles contained in the Report through its advocacy and legal services, and in particular TASC’s Disability Law Project (DLP). The DLP enables our lawyers to represent defendants with disabilities in summary matters in the Magistrates Court. Conditions such as mental illness, intellectual disability, cognitive impairment or acquired brain injury may impact upon a defendant’s ability to instruct lawyers and participate in the trial process. Any failure to address the impact of these conditions may cause a miscarriage of justice for the defendant.
Currently there is no process to refer these matters to the Mental Health Court under the Mental Health Act 2000. In R v AAM; ex parte Attorney-General of Queensland  QCA 305 the Court of Appeal observed that it seemed unsatisfactory that the laws of this State make no provision for the determination of the question of fitness to plead to summary offences. The Court indicated that the legislature may wish to consider whether law reform is needed “to correct this hiatus” in the existing criminal justice system.