NATIONAL HUMAN RIGHTS ACTION PLAN

CONSULTATION ON DRAFT BASELINE STUDY

Queensland Advocacy Incorporated

31 August 2011

Dear Sir/Madam

Please find here our comments and recommendations on the Baseline Study Draft. We are very keen to be included in further consultations. Please contact Ken Wade () or Nick Collyer () to discuss this or future submissions.

Yours Sincerely,

Ken Wade - Director

Nick Collyer - Systems Advocacy

Summary

Recommendation 1: That the Baseline Study make reference to the shortcomings of our criminal justice systems with respect to the treatment of people with intellectual disabilities. Reduced capacity due to intellectual and cognitive impairment should be identified early and be a factor at each stage in the criminal justice process.

Recommendation 2: That the Baseline Study note the overrepresentation of people with disabilities (of all kinds) in the criminal justice system. More research needs to be done in some jurisdictions to identify the shortcomings of criminal law legislation, the courts and corrections in relation to the treatment of people with disabilities.

Recommendation 3: People with disabilities are still subject to physical and chemical restraint and seclusion for what are known as ‘challenging behaviours’. A National Human Rights Action Plan should aim to proscribe these practices, and afford people with disabilities the same legal remedies against assault and deprivation of liberty available to all other citizens.

Recommendation 4: That the Baseline Study recommend an intergovernmental process be set up to strengthen the links between Federal human rights commitments and State and Territory action. Without those links our international human rights commitments become largely symbolic. Human rights scrutiny of legislation and policy should take place at every level of government.

We also recommend our publications - Mason, Carolyn and Walter Robb. 2010. Preparing Pathways to Justice: Intervening early for vulnerable people with impaired capacity. Brisbane: Queensland Advocacy Incorporated and Mason, Carolyn and Walter Robb. 2007. Pathways for People with a Disability in the Criminal Justice System: Using a Benefit Cost Analysis to Reframe the Approach to Policies and Programs. Queensland Advocacy Incorporated.

  1. Comments and Recommendations on Chapter 3: The human rights experience of specific groups in Australia

In this section we have addressed the following questions raised in the public consultation questionnaire:

  • Are there additional specific groups that could be included in this section? (Please specify)
  • What additional statistical data or research findings could be included to better paint the human rights picture for a specific group? (Please provide references)
  • Are there any additional human rights issues that could be added which affect the specific groups identified in this section?
  • What major government initiatives are missing that should be included?

1.1 Legal Capacity: People with Intellectual Disabilities and the Justice System

Consistent with the Convention on the Rights of Persons with Disabilities the Consultation Draftsupports the right of people with disability to make their own decisions (in 3.7.2). However, the Draft might also acknowledge thatthe presumption of capacity cuts both ways, and may be misleading in relation to a person’s guilt or innocence in criminal matters. The justice system may not be just when it treats unequal people equally, and neither justice nor human rights are served when intellectual and cognitive disabilities are not taken into account at every stage of the criminal justice process. The experiences of Marlon Noble, a Western Australian man with an intellectual disability imprisoned for 10 years without conviction, and Melissa Avery are a case in point. Melissa is a Queensland woman whose intellectual disability went unnoticed and unconsidered when she repeatedly appeared before the Toowoomba magistrates charged with the shop theft of greetings cards. Her convictions resulted in fines, community service and probation orders when she arguably should not have been charged in the first place.

Key experts such as Queensland’s Adult Guardian Diane Pendergast (until April 2011) agree that there needs to be a radical change in the way people with intellectual disabilities, who tend to appear in the lower courts for minor offences like urinating in public, public intoxication and shoplifting, are looked after by the justice system. ‘What’s the point in continually churning people through the Magistrate’s Court without changing behaviour, creating a criminal record that ultimately ends up with them going into jail and creates an expense and a level of education for that adult, that's simply worsens the problem’.[1] According to Susan Hayes, a forensic psychologist, intellectually disabled people are more likely to be refused bail and remanded in custody, even for minor offences.[2] Retired QC Bill Carter, author of the ministerial report [3] that informed the drafting of Queensland’s Disability Services Act 2006, commented in the same Background Briefing that “they go before the magistrate, the magistrate says, 'Well look, you've been here too many times. If you come back here again, you're going to prison.' And that happens. And that is absolutely, absolutely and utterly and totally unacceptable’.[4]

The sentencing principles set out inR v Verdins(2007)[5],forexample, show that some courts are ready to acknowledge the special circumstances of offenders with diminished capacity related to mental illness and intellectual and cognitive disabilities. Verdins providessentencing principles for the differential treatment of such offenders when considering culpability, deterrence, and the impact of imprisonment. The NSW (2004) and Queensland (soon to be put before the House) legislation mandating minimum non-parole periods (SNPPs) is therefore a backward step; SNPPs reduce courts’ capacity to take into account intellectual and other disabilities when sentencing . [6]

We commend to the authors of the Baseline Study QAI’s own research (Preparing Pathways to Justice: Intervening early for vulnerable people with impaired capacity, Carolyn Mason and Walter Robb 2010) demonstrating that better outcomes for the person and for the community can be achieved for fewer dollars by diverting people with impaired capacity away from the criminal justice system.

Recommendation: The Baseline Study should make reference to the shortcomings of our criminal justice systems with respect to the treatment of people with intellectual disabilities. Reduced capacity due to intellectual and cognitive impairment should be identified early and be a factor at each stage in the criminal justice process.

1.2 Disability and Overrepresentation in the Justice System

In addition, we contend that all sorts of disabilities may be relevantto justice - criminal and civil. QAI’s Disabled Justice (2007) provides statistical evidence of the over-representation of people with disabilities in the (criminal) justice system in Queensland. Some national data is included.

  • Based on IQ testing, 9.8% of incarcerated persons scored in the intellectual disability range, and 28.6% scored in the ‘borderline’ intellectual disability range (Queensland Department of Corrective Services: 2002);
  • A Queensland study in relation to female prisoners published in 2002 found that 57.1% of women reported having been diagnosed with a specific mental illness, the most common of which was depression. Nine percent of female prisoners had been admitted to a psychiatric hospital and 17% had been prescribed counselling or treatment (Hockings et al: 2002);
  • A NSW study published in 1993 found that 23% of persons appearing before Local Courts on criminal charges had intellectual disability (NSW Law Reform Commission: 1993);
  • A follow-up study focused on two rural NSW courts published in 1996 found that 51.5% of persons appearing before the Court had intellectual disability (NSW Law Reform Commission: 1996a);
  • A NSW study of ex-prisoners published in 1988 found that approximately 30% had intellectual disability (Hayes and McIlwain: 1988);
  • These prevalence figures compare with a general population incidence of 1-3%3 for persons with intellectual impairment and 5.6% for persons with psychosocial impairment. (Cocks: 1989; Australian Institute of Health and Welfare: 2002);
  • A Queensland study published in 2002 found that: based on adaptive functioning assessment, between Based on adaptive functioning assessment, between 4.8-14.8% of prisoners of adult correctional facilities may have intellectual disability (Queensland Department of Corrective Services).

We commend to the authors of the Baseline Study QAI’s own research (Pathways for People with a Disability in the Criminal Justice System: Using a Benefit Cost Analysis to Reframe the Approach to Policies and Programs (2007)

Recommendation: The Baseline Study should note the overrepresentation of people with disabilities (of all kinds) in the criminal justice system. More research needs to be done in some jurisdictions to identify the shortcomings of criminal law legislation, the courts and corrections in relation to the treatment of peoplewith disabilities.

1.3 Restrictive Practices:

In addition, we would like the Baseline Study to highlighta systemic issue that affects many people with cognitive and intellectual impairment and acquired brain injuries: the continued application of what are widely known as ‘restrictive practices’: containment, seclusion, mechanical, physical and chemical restraints imposed on persons against their will and contrary to the human rights principles set down in Articles 13, 15 & 16 of the CRPD (Convention on the Rights of Persons with Disabilities).

In certain circumstances, State and Territory-based restrictive practice regimes deny people with intellectual and cognitive impairmentlegal remedies forwhat would otherwise , constitute common assault and deprivation of liberty; and they provide disability service providers with indemnities for prosecution for what would in other circumstances be considered criminal acts. It is time to move beyond 20th C care, support and accommodation of people with intellectual/cognitive disabilities. The Baseline Study should note that we still provide legislative indemnities against common assault and other criminal offences to the providers of services to people with disabilities. As disability service organisations both here and overseas have shown, challenging behaviours are often the result of restrictive practices themselves, and can be dealt with without resorting to the use of seclusion, confinement and other forms of physical and chemical restraint that are clearly contrary to our human rights obligations under the Convention on the Rights of Persons with Disabilities.

Recommendation: People with disabilities are still subject to physical and chemical restraint and seclusion for what are known as ‘challenging behaviours’. A National Human Rights Action Plan should aim to proscribe these practices, and afford people with disabilities the same legal remedies against assault and deprivation of liberty available to all other citizens.

  • What additional statistical data or research findings could be included to better paint the human rights picture for a specific group? (Please provide references)

We recommend our own publication Disabled Justice(2007) for its statistics on people with disabilities and the criminal justice system, both as victims and offenders.

We recommend our publications -Mason, Carolyn and Walter Robb. 2010. Preparing Pathways to Justice: Intervening early for vulnerable people with impaired capacity. Brisbane: Queensland Advocacy Incorporated and Mason, Carolyn and Walter Robb. 2007. Pathways for People with a Disability in the Criminal Justice System: Using a Benefit Cost Analysis to Reframe the Approach to Policies and Programs. Queensland Advocacy Incorporated.

  1. Issues that a National Action Plan could address:

In this section we comment on the following:

  • What further actions or desired outcomes would you include to protect or promote human rights?
  • What specific measures would you suggest to address these issues?

2.1 Key institutional and legal protections and arrangements for promoting human rights in Australia

Of the key principles set out in the framework [7] we focus here on #4 – ‘improving human rights protections including greater parliamentary scrutiny’. Since this country’s ratification of the Convention on the Rights of Persons with Disabilities on 17 July 2008, advocates for the rights of persons with disabilities have looked to the Convention as the benchmark against which all Australian policy and legislation - Federal, State. Territory and Local - should be judged. While the Commonwealth - as opposed to our States, Territories and Local Governments - is the signatory, it is the States Parties’ responsibility under Art 33 of the CRPD (and some other instruments) to establish a ‘coordination mechanism within government to facilitate related action in different sectors and at different levels’.

  • A human rights coordination mechanism, particularly between Federal and State/Territory levels, is particularly important in a Federal system where the bulk of disabilities-specific legislation and policy is beyond the direct reach of the Commonwealth.
  • The Baseline Study does not adequately highlight the policy and legislative ‘blind spots’, or challenges, of our federal system with respect to mechanisms of human rights enforcement.

For example, the Consultation Draftin1.3 ‘Australia’s Democratic Institutions-Parliamentary committees’ correctly notes that:

Parliamentary committees have an important role in scrutinising government activity and proposed laws. For example, the Senate Standing Committee for the Scrutiny of Bills is empowered to scrutinise proposed laws for their effect on fundamental rights and liberties […].

We applaud the move to establish a new Parliamentary Joint Committee on Human Rights with the aim to provide greater scrutiny of legislation for compliance with our international human rights obligations, and we approve the introduction of legislation which would require that each new piece of legislation be accompanied by a statement of compatibility with the seven core UN human rights treaties to which Australia is a party, including the Convention on the Rights of Persons with Disabilities.

While these are positive developments at the Federal level, there is more to be done there, including that:

  1. the Scrutiny of Bills Committee’s powers, processes and terms of reference remain appropriate and that the Scrutiny of Bills Committee should continue to consider human rights issues where they are relevant to the Scrutiny of Bills Committee’s work;
  2. on the basis of such a wide and diverse responsibility, we believe it would also be appropriate for the Joint Committee to be able to initiate its own inquiries, relating to the protection of human rights within Australia, as well as having them referred by the Attorney-General; and
  3. the Joint Human Rights Committee should be established as soon as possible; and
  4. the proposed Joint Human Rights Committee will have a separate and distinct role to the Scrutiny of Bills Committee but will complement its work.

However, it is in the realm of scrutiny at State and Territory levels that we see a major gap, a distinct ‘hole in the net’ of legislative protections, because the scrutiny above extends only to Federal bills, which have little impact on the day to day concerns of people with disabilities.

2.2 State and Territory Level Scrutiny: Queensland

‘An unqualified application of laws which trample on a minority’s human rights may be the very antithesis of the rule of law’.

The Hon Sir Gerard Brennan AC KBE: 2011: 4

We understand the limited scope for Federal influence over States and Territories’ legislative processes. Nevertheless, we note that the Queensland scrutiny process appears to have been watered downrecently, when it needs to be strengthened.

This is particularly disappointing. From the point of view of many people with disabilities, state legislation is the real meat and potatoes of human rights in this country. Criminal justice and social services legislation, in particular, are largely State-based and beyond the reach of comprehensive human rights scrutiny, but constitutional authorities like former Chief Justice Gerard Brennan agree that without adequate scrutiny legislation can prove to be a human rights liability: ‘absent the work of a Scrutiny Committee, a provision of a Bill or a regulation may come into force and prove to be an intractable, but unnecessary, incursion on the interests which the rule of law seeks to protect (Brennan, 2011: 15). Queensland’s own Disability Services Act 2006 is a case in point: if our restrictive practices legislation was properly scrutinised for consistency with human rights principles it may never have been passed.

In Queensland the original Queensland Scrutiny of Legislation Committee examined a new bill’s compatibility with the Legislative Standards Act 1994, and particularly with s. 4, which states that all legislation must preserve ‘the rights and liberties of individuals’ (not human rights per se). That Committee has been scrapped and replaced with portfolio-based scrutiny committees that consider a narrower range of bills, but have added responsibilities including the examination of estimates. The Health and Disabilities Committee, for example, now has terms of reference going way beyond questioning the consistency of legislation with the Fundamental Legislative Principles. [8]

We contend that scrutiny should become more focussed, and that the meaning of the ‘rights of liberties of individuals’ clause in the Legislative Standards Act 1994 should be amended to include an express reference to Australia’s international human rights obligations. We would like to see similar developments at State and Territory levels as that which is developing at the Federal: the legislative creation of Human Rights Scrutiny Committees independent of and complementary with other Scrutiny Committees.

Recommendation: An intergovernmental process must be set up to strengthen the links between Federal human rights commitments and State and Territory action. Without those links our international human rights commitments become largely symbolic. Human rights scrutiny of legislation and policy should take place at every level of government.

…………………………………….

Bibliography

Brennan, The Hon Sir Gerard AC KBE. 2011. ‘Scrutiny’s Role In The Rule Of Law’. Australia-New Zealand Scrutiny of Legislation Conference, Brisbane. 26-28 July 2011.

French P. 2007. Disabled Justice: The barriers to justice for persons with disability in Queensland. Disability Studies and Research Institute.