INNER MELBOURNE COMMUNITY LEGAL
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Review of Disability Discrimination Act (Cth)
Submission by Inner Melbourne Community Legal — Police Accountability Project
CONSULTATION QUESTION:
- How could the Disability Discrimination Act be amended to ensure that it covers policing?
The discussion paper asks the correct question, ‘how could the Disability Discrimination Act (the DDA) be amended’ to cover policing; as the Act should be amended to ensure people do not experience discrimination by police. Police wield significant powers, and the impact of the misuse and abuse of these powers on people who experience disabilities is significant.
Importantly, the DDA should not just be amended to cover policing, but also other government agencies such as corrections and child protections. As the Royal Commission into Violence, Abuse and Neglect of People with Disability (Disability Royal Commission) found people with disability are more likely to be incarcerated.¹ This is ‘not the result of any inherent relationship between disability and crime’²; but reflects the overlapping disadvantage many people with disabilities experience including poverty and abuse, and also, the exposure to ‘frequent and intense policing’.³ There was also strong association between young people with disabilities who had contact with child protection system being in contact with the criminal legal system before the age of 18.⁴
People with disabilities told the Disability Royal Commission their struggles with child protection, the impact of deficit assumption and lack of services tailored to their needs for parenting supports.⁵ They found that there was a lower threshold of intervention for parents with disabilities, where structural issues of poverty and housing insecurity were often conflated with parental failings, and used as evidence that the parents are unable to provide a safe home.⁶
People with disabilities are also disproportionately likely to be imprisoned and when they are prisons they are more likely to have difficulties, higher risk of social isolation and returning to prison.⁷ Prisons need to ensure they do not discriminate against people with disabilities to protect their human rights⁸ while in prison and to facilitate better outcomes. The Royal Commission found that:
The DDA should be amended to clarify that custodial authorities have a duty to make reasonable adjustments for prisoners and detainees.⁹
¹ Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Final Report Volume 8: Criminal Justice and People with Disability (2023). 3-4. ² Ibid 3. ³ Ibid 4. ⁴ Ibid 87. ⁵ Terri Libesman, Paul Gray, Eloise Chandler, Linda Briskman, Aminath Didi and Scott Avery, Parents with Disability and their Experiences of Child Protection Systems, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023). ⁶ Ibid. 3. ⁷ Ibid 4. ⁸ See Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability, Final Report Volume 8: Criminal Justice and People with Disability (2023) ch 2. ⁹ N1. 63.
The Disability Royal Commission found high rates of incarceration rates of people with a disability demonstrated the impact of unfair treatment on people with disability.10 This is backed up with what our community lawyers see regularly at the Police Accountability Project; police failing to understand people with disabilities and their needs, and resulting in their criminalisation rather than support and care. As the Disability Royal Commission established, the problem is exacerbated for First Nations persons with cognitive disability who are more likely to be investigated, charged, and remanded in custody than non-First Nations people.11 Changes to the Disability Discrimination Act are necessary to provide legal protection to people with a disability and drive cultural change in how police and corrective services treat people with disabilities.
LOWANNA’S EXPERIENCE
Lowanna (not her real name) is an Aboriginal woman with an acquired brain injury (ABI). When her mental health deteriorated and she was suicidal police did a welfare check on her. Instead of receiving care, police conducted a search on Lowanna. The police found a small quantity of weed (one joint) and they charged her for possession of a drug of dependence.
The criminal charge was heard in the Koori Court in Melbourne and it was found “proven and dismissed”, with Her Honour telling Lowanna that she was very impressed by the courage and strength Lowanna had displayed throughout her life, despite the many hurdles she had faced.
For a person to be searched by police during a mental health call out and charged for possession showed an utter disregard for the purpose of the visit. That Lowanna is both First Nations and has a cognitive disability shows a systemic failing in how disabilities and race are treated by police.
The Disability Royal Commission recommended that the Disability Discrimination Act be amended to include ‘services provided by police officers in the course of performing policing duties and powers’.12 While this would be an improvement, we would be concerned that this may be construed in a way could preclude some interactions between police and people with disabilities, particularly concerning would be if it did not cover people suspected of committing an offence. Brennan CJ and McHuch J noted the term service is defined as ‘an act of helpful activity’.13 The case law follows that service ‘must confer a benefit, advantage or welfare on the complainant’14 is ‘conduct which is helpful or beneficial for the individual’15. Being arrested has not been considered a service to the person being arrested.16 The prohibition on discriminating during the performance of police duties and powers needs to ensure that the use of the term ‘service’ does not limit the protection only to victims of crime, the protections must also extent to those with disabilities who are suspected of committing offences. In other words, the scope of protection should not be limited to situations the Police providing a service, but to all their functions.
Risk assessments conducted by child protection agencies are another area that may not be covered in the definition of services. Risk assessments were identified as a key challenge for parents with disabilities by the Disability Royal Commission.17 Parents with disabilities face judgement and
10 See n1. 11 Ibid. 124. 12 Ibid. Recommendation 8.19. 13 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 [11] 14 Kavanagh v Victorian WorkCover Authority trading as WorkSafe Victoria (Anti-Discrimination) [2011] VCAT 2009 (20 October 2011) [48]. 15 Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015) 70 16 See Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015) [129] 17 Terri Libesman, Paul Gray, Eloise Chandler, Linda Briskman, Aminath Didi and Scott Avery, Parents with Disability and their Experiences of Child Protection Systems, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023). 139.
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discrimination that can result in removal of their children. As provided to the Disability Royal Commission:
I asked for an independent assessment of mum because the department were hanging their judgement of mum on a neuropsych report, suggesting that she couldn’t learn. — Service Provider 1918
If you get any parents with an intellectual disability, realise they’ve got things they can do and things they can’t do, just like anyone. The only difference, really, if you’re talking about someone with intellectual disability, is that we learn things differently. Work out how we learn things and then give it to us in that way. Because you might be surprised that we actually want to learn something. — Parent 2219
The serious consequences for parents and children, and the flow-on to society through impact of this separation on interactions with criminal legal system, means we must ensure discriminatory views and assumptions do not form part of the risk assessment. Amending the Disability Discrimination Act to include all functions of child protection, corrections and police are necessary to protect people with disability from unjust outcomes.
The Yoorrook Justice Commission considered the similar provisions in the Equal Opportunity Act 2010 (Vic), and the definition of services having the impact it has on excluding the majority of the work performed by police and corrections officers.20 The Yoorrook Justice Commission recommended:
- The Equal Opportunity Act 2010 (Vic) must urgently be amended to prohibit race and other forms of discrimination in the administration of State laws and programs, including all functions performed by Victoria Police, Corrections Victoria and child protection authorities.
Our view is that the protection from discrimination should apply to the administration of government laws and programs, and specifically including all functions performed by police, corrections and child protection. This broader use of ‘administration of laws and programs’ and ‘all functions’ is preferred to services provided by police officers, as it would ensure there is protection from discrimination in relation to all the functions of government bodies.
CONSULTATION QUESTIONS:
- Are there any specific circumstances or situations relating to policing or justice that should be excluded from the application of the Disability Discrimination Act?
No. The unreasonable hardship defence is available to respondents. There is not a justification for policing or justice to be held to a lesser standard than other government agencies when it comes to treating people with disabilities with fairness and respect.
RECOMMENDATION
- Amend the Disability Discrimination Act to prohibit discrimination in the administration of government laws and programs, including all functions performed by police, corrections and child protection.
18 Ibid. 19 Ibid. 20 Yoorrook Justice Commission, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (4 September 2023) 274.
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ABOUT INNER MELBOURNE COMMUNITY LEGAL – POLICE ACCOUNTABILITY PROJECT
The Police Accountability Project (PAP) is a specialist state-wide service that started in 2007 at Flemington Kensington Community Legal Centre (FKCLC) in response to a large number of concerning police misconduct reported by clients within the Flemington and Kensington community. Inner Melbourne Community Legal merged with FKCLC in 2022, including the Police Accountability Project. PAP provides casework, advocacy and community engagement as a part of its service.
Inner Melbourne Community Legal (IMCL) assists disadvantaged people who live in or engage with services in the Melbourne CBD, North Melbourne, Carlton, Parkville, Docklands, West Melbourne, Flemington and Kensington. We deliver specialised legal services, build strategic community and integrated partnerships and advocate for change to reduce the impact of unfair laws and policies.
Forty-four per cent of our clients are living with a disability, including 32 per cent who have a psychological disability. Nearly all of the people we assist experience severe financial disadvantage and 27 per cent are at risk of or experiencing homelessness.
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