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DRC Discussion Topic 6, Justice

Background information

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability released its Final Report on 29 September 2023 after four and a half years of inquiry. 

Almost 10,000 people shared their stories with the Royal Commission. 

The Royal Commission looked at what governments, institutions and the community should do to prevent people with disability experiencing any form of violence, abuse, neglect or exploitation. 

It was focused on key areas including employment, education, housing, justice settings, healthcare and disability services. 

Of the six commissioners who wrote the recommendations, two identify as living with disability and one is a parent of a daughter living with multiple sclerosis. 

The Final Report makes 222 recommendations. 

Some of the recommendations are the responsibility of the Commonwealth Government, some are for State Governments, and some require collaboration between the two governments. 

The South Australian Government is writing a formal response to the recommendations. 

The response will include if and how the South Australian Government will act on the recommendations that have been made by the Royal Commission. 

The response is due by 31 March 2024. 

As part of this process, the South Australian Government wants to ensure the voices of people with disability and their families are included. 

The South Australian Government has asked Purple Orange to facilitate the sessions. 

These sessions are an opportunity for people with lived experience to make sure their views are considered when the South Australian Government responds to the Royal Commission. 

Feedback from these sessions will be captured and included in a written section of the South Australian response. 

 

The sessions: 

The South Australian Government has asked Purple Orange to facilitate six sessions focused on key areas of the Royal Commission Report. Session topics and dates listed here. 

 

Some of the main recommendations from the Royal Commission include: 

  • A new Disability Rights Act 

  • A new Disability Commission to manage the Disability Rights Act 

  • A new Federal Disability Minister 

  • A new National Disability Agreement between all governments in relation to funding 

  • Improvement to safeguarding practices and laws 

  • Improving disability support worker screening and recruitment processes 

 

Commissioners disagreed about whether settings that separate people with disability from non-disabled people (like group homes, ‘special’ schools, and supported employment) should continue or be phased out. 

The commissioners who live with disability or have disability in their family want segregated settings to end by being phased out for different options. 

The other commissioners do not want the segregated settings to end. 

The commissioners who do want them phased out suggested long timelines to do this. 

 

Sixth Session - Justice

When talking about justice, the Royal Commission recommended: 

  • The creation of a new Disability Rights Act which recognises a person with disability as a person before the law. This includes the right to access and use supports such as advocacy services, in making decisions that affect them, communicating their will and preferences, and developing their decision-making abilities. 

  • The amendment of the Disability Discrimination Act to include ‘services provided by police officers in the course of performing policing duties and powers’ in the definition of ‘services’ in section 4. 

  • The clearer identification of the responsibilities of the National Disability Insurance Scheme (NDIS) and the criminal justice system to provide supports for people with disability. Greater flexibility is required to support transition planning for people with disability leaving custodial settings. 

  • The age of criminal responsibility should be raised to 14, in line with international accepted standards, to ensure children with disability, especially children with cognitive disability, placed in detention are less likely to become trapped in the criminal justice system. 

  • The laws providing for indefinite detention must be repealed. The risk of indefinite detention for forensic patients (those found to be ‘unfit to plead’ due to cognitive/mental impairment) is unacceptable. 

  • All governments should amend their legislation on fitness to stand trial to align with the revised National Principles. 

  • All corrective services and youth justice agencies should provide people with disability with the disability supports they need to place them in the same position, so far as feasible, as other people in custody. This would ensure Australia is consistent with Article 14(2) of the United Nations Convention on the Rights of Persons with Disabilities. 

  • All states and territories to urgently establish National Preventative Mechanisms (independent monitoring bodies) to inspect all places of detention, including places of detention where people with disability are deprived of their liberty. Also ensure National Preventative Mechanisms, detention authorities and their staff receive disability awareness training. 

  • The amendment of state and territory youth justice legislation to prevent the use or practice of solitary confinement, and clearly define safeguards applying to isolation or seclusion of children with disability. Also, all state and territory governments to ensure timely screening and expert assessment are available for children with cognitive disability involved in the criminal justice system to ensure they receive appropriate supports. 

  • To improve processes for screening and identifying disability in custodial settings, all state and territory corrective services and youth justice agencies should develop national practice guidelines and policies. 

  • As First Nations people with disability are over-represented in the child protection system and the criminal justice system, reforms need to be introduced. These reforms should include: creating a First Nations disability forum; improving the Disability Sector Strengthening Plan; developing disability-inclusive cultural safety standards for service delivery; and investing in the First Nations disability workforce. 

  • All governments to collaborate with people with disability in the co-design, implementation and evaluation of strategies to improve police responses to people with disability. 

  • All governments to introduce an alternative reporting pathway (i.e. not using the current third-party reporting systems) for people with disability to report crimes to the police. 

  • All police services to introduce adequate numbers of dedicated disability liaison officer positions. 

  • All state and territory governments to fund court-based diversion programs for people with cognitive disability charged with offences that can be heard in local or magistrates’ courts. 

  • All governments to work together to develop a five-year Action Plan for Women and Children with Disability to accompany the National Plan to End Violence against Women and Children 2022–2032. 

 

Key questions for justice session: 

  • Do you have experiences with the justice system in South Australia that you would like to share for the state government to consider in their response to the recommendations? 

  • The commission recommended that to improve processes for screening and identifying disability in custodial settings, all state and territory corrective services and youth justice agencies should develop national practice guidelines and policies. What do you think these should include? 

  • The Disability Royal Commission recommended the age of criminal responsibility should be raised to 14, in line with international accepted standards, to ensure children with disability, especially children with cognitive disability, placed in detention are less likely to become trapped in the criminal justice system. Do you agree? 

  • The Disability Royal Commission recommended all governments collaborate with people with disability in the co-design, implementation and evaluation of strategies to improve police responses to people with disability. How do you think police responses could be improved? 

  • The Disability Royal Commission recommended all governments introduce an alternative reporting pathway (i.e. not using the current third-party reporting systems) for people with disability to report crimes to the police. How do you think this system could be made more broadly accessible? 

  • Looking at the summary of the recommendations, did the Royal Commission miss any key issues relating to justice that you would have liked to have seen in the final report? 

  • What is the most important priority to you when it comes to justice for people with disability? What should the Government focus on in the next year?