THE NATIONAL VOICE OF POLICING

SUBMISSION -

Review of the Disability Discrimination Act

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Police Federation of Australia
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DISABILITY DISCRIMINATION ACT 1992 REVIEW SUBMISSION

On behalf of the Police Federation of Australia (PFA) I thank you for the opportunity to provide this submission to the review into the Disability Discrimination Act 1992 (Cth) (DDA).

The PFA is the national body representing the professional and industrial interests of Australia’s more than 65,000 police officers, across all state, territory, and the federal police jurisdictions.

Membership as at: 31 December 2024
Police Association of South Australia	4,527
Western Australia Police Union of Workers	7,076
Queensland Police Union of Employees	12,977
The Police Association of Victoria	17,484
Police Association of NSW	15,758
Police Association of Tasmania	1,521
Northern Territory Police Association	1,687
Australian Federal Police Association	4,343
Police Federation of Australia	65,373

Recommendation 8.19 contemplated that the DDA should be amended to expressly include “services provided by police officers in the course of performing policing duties and powers” in the definition of services. Having consulted with each respective state, territory and federal police associations the PFA does not support the recommendation.

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BACKGROUND

Police interactions with people with a disability, as with all police interactions, are already well regulated by existing legislation in each jurisdiction, including their various human rights commissions, external oversight bodies, including standing integrity commissions, police ethical standards commands and the courts to mention just a few.

For example, in Victoria, the Independent Broad-based Anti-Corruption Commission (IBAC) is invested with the power to investigate complaints against police. This power covers the full ambit of policing including victims of crime as well as alleged perpetrators.1 As indicated, like bodies with like powers exist in every policing jurisdiction. It is the PFA’s view, that these bodies are the appropriate path to safeguard the interests of persons with a disability in their interactions with police. Duplication of this model, solely through the lens of disability discrimination, would only further complicate the oversight of policing.

it is therefore our view that amending the Disability Discrimination Act to include ‘services provided by police officers in the course of performing policing duties and powers’, will just add another layer of oversight to the already heavily oversighted policing role without any additional value.

DISABILITY ROYAL COMMISSION RECOMMENDATION

It is the PFA’s view that the recommendation of the Royal Commission is inconsistent with the evidence detailed in the report. The body of the discussion deals with the question of persons with disabilities as victims of crime and proceeds to,

“We consider the police should be accountable if they discriminate against a person with disability, particularly in circumstances concerning a person right to liberty and security or when in police custody”.

We believe that the recommendation places further unrealist expectations on police. The concern of the alleged over representation of disabled people through the Judicial system, appears to be being blamed on individual officers when the judicial system is far broader than just police.

Police receive limited training to identify or deal with disabled individuals, and the recommendation appears to be endeavouring to shift the blame for diverting disabled people from the Judicial System onto the actions of the Police, as opposed to the array of supposed support services that should be available, but are often not.

1 Independent Broad-based Anti-corruption Commission Act 2011 (Vic).

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Actions of police should be reasonable in context to their training, resources, policies and processes. The discrimination of over representation of disabled persons in the judicial system is not always the fault of Police, but more often, shows a failure of support services for such people.

If the intended effect of the proposed reform is to require police officers to make reasonable adjustments when engaging suspects with a disability, we are concerned about the impact on police and community safety and operational effectiveness that would be caused by the steps necessary to comply with that expanded obligation.

The Final Report noted:

In particular, evidence indicates that the police have difficulty in distinguishing between mental health issues, intellectual disability, acquired brain injury and fetal alcohol spectrum disorder.

It is entirely reasonable that police might not be able to distinguish those factors in the circumstances in which they interact with people. Police are often interacting with people in a non-controlled environment, with multiple risks to the safety of those present and the officers themselves, and where swift action is required, including incidents such as where violence is being perpetrated, managing an emergency situation in order to prevent injury or death or loss of property, undertaking pursuits, covert or high risk procedures and the use of force in certain circumstances. They do not have the time, nor access to relevant medical expertise to screen for those factors, or any other disabilities for that matter.

There are concerns that police would not be a in a position to undertake such screening, to diagnose and have sufficient knowledge of all disabilities and to adjust appropriately, even with training, especially in circumstances where the decision to use police powers is required in often extremely short time frames.

For example, if a person holding a knife refuses to put it down when asked to do so and walks towards police, police do not have the time or knowledge to diagnose or recognise a specific disability to adjust their actions in relation to this threat, regardless of whether that person is deaf, has a cognitive disability, or does not have a disability at all. This potentially puts police and other members of the community at risk of injury where the person is violent. Therefore, it is unreasonable to expect police to respond accordingly where a specific disability is not immediately apparent.

Even in circumstances without such an urgent need for action, ascertaining the required information to make adjustments would be difficult. For example, persons in police custody would still not have the same opportunity for screening and assessment as a person entering custody with Corrective Services. To require police to obtain that level of information and assessment would likely require people to spend more time in police custody.

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Police already owe a duty of care to people they interact with, and we argue that this existing duty of care is more appropriate than the proposed expansion of discrimination obligations.

With the practical implications of the proposed amendment so unclear, we consider there to be insufficient evidence to support the proposal, given the risk of unintended impact of officers’ ability to -

…“complete their jobs, including completing all tasks safely, confidently, and effectively”

as noted in the discussions paper notes on page 73. It is also questionable whether the public would accept an impact on criminal investigations or police resources if indeed police forces need to alter or add to their procedures to ensure compliance with the new obligations.

The timing of introducing such an uncertain reform would also carry significant risk.

THE QUESTION OF POLICING AS A SERVICE

The question of whether policing is a service is extensively examined in Bickle v State of Victoria which examines the question in a continuum from victim through to perpetrator. In effect it concludes that no bright line can be drawn that enables a distinction to be drawn between the various components of delivering a police service.

As a further example, Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770, it was questionable whether the claimant had suffered unfavourable treatment and whether that was due to a disability. The court made findings as such.

If the intended effect of the proposed reform is to require police officers to make reasonable adjustments when engaging suspects with a disability, we are concerned about the impact on safety and operational effectiveness that would be caused by the steps necessary to comply with that expanded obligation.

The Royal Commission also cited the operation of the Sexual Offences and Child Abuse Investigate Team (SOCIT) model that operates in Victoria. This involves police who specialise in the investigation of sexual offences and child abuse. The police involved in such multi disciplined teams, with often sworn police officers and un sworn (civilian) members attached, have specialist training in dealing with victims of crime. Again, like teams of specialist police and civilian staff exist in every jurisdiction.

In addition, Victoria, as with each policing jurisdiction, has extensive procedures dealing with persons with a cognitive impairment including through the use of independent third parties to support the process of interviewing.

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CONSULTATION QUESTIONS

31. How could the Disability Discrimination Act be amended to ensure that it covers policing?

The PFA’s position is that current legislation and oversight of police, strikes the right balance and there is no need to amend the Act to ensure that it covers Police.

If an amendment to the DDA was contemplated, which we do not support, then it would have to be via a bespoke definition that captures the nuances of policing, taking into account the issues raised earlier in regard to police often having to act in an uncontrolled environment where urgent action is required which may entail to use of force.

Any future amendment would require -

A provision which explicitly includes ‘Police Services’, which includes arrests, investigations and general public interactions;
A possible expressed duty requiring police to proactively prevent discrimination and not just respond to complaints after (alleged) discrimination has occurred;
A requirement for Police to undertake training on how to communicate with those with disabilities and how to apply trauma-informed practices;
Complaint processes would need to be established that don’t in themselves discriminate against or prejudice the rights of the disabled – including services which support those with disability who wish to make a complaint, which would need to be available across the whole of Australia including remote and regional Australia;
The establishment of a further independent oversight body to monitor police compliance with disability rights with powers of investigation, capacity to identify systemic failures/issues and the capacity to enforce recommendations; and
Agreed funding and other support for the states to ensure compliance with DDA changes.

All of which we submit support our view that such an outcome would be massive over-reach and have significant operational and resourcing impacts, for a perceived problem that we argue does not currently exist and already has an array of other bodies that are capable of dealing with any like issues.

Therefore, should a separate provision to cover policing be contemplated following this review, we argue a further in-depth consultation phase pertaining to the draft provisions should be undertaken to avoid any unintended consequences given the very dynamic nature of policing.

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32. Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?

Special consideration would need to be given to police actions in the course of emergency or un-controlled situations and especially when it is shown that they were acting in good faith, particularly in the protection of life and property.

OVERSEAS EXPERIENCE

In the US, the Americans with Disabilities Act requires police to take reasonable steps to accommodate people with disability during arrests, interviews and detention – examples provided include - provide sign language interpreters or alternative communication methods for deaf individuals during questioning.

In the UK, via the Equality Act 2010, police must make reasonable adjustments for disabled individuals in custody or during public interactions – examples provided are ‘failure to provide accessible facilities or communication support can be grounds for legal action’.

The New Zealand Human Rights Act 1993 prohibits discrimination on the basis of disability and mandates reasonable adjustments such as adapting police procedures to ensure fair treatment of neurodivergent individuals.

Australia has ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) which states at Article 13 that countries need to ensure effective access to justice for persons with disabilities, including through training of police and legal personnel.

We submit that in Australia, our current legislative requirements at both federal and state levels are already equal to (if not exceed) those of like jurisdictions in the US, UK and NZ.

CONCLUSION

In light of the above comments, the PFA does not support Recommendation 8.19 and would be happy to expand upon our submission if desired.