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EXECUTIVELEGAL
100 Harris Street
Pyrmont, NSW, 2009
P: 1800 395 342
F: 02 8323 4337 http://www.executivelegal.com.au
25 August 2020
Dear Proper Officer of the Royal Commission,
Re:
May | begin by thanking the commission for its permission to provide a submission relating to the
matters being considered.
My name is Jahan Kalantar and | am a practicing solicitor and managing partner of the Sydney-based
law firm, Executive Legal. We have an extensive practice focused on mental health and social justice. Given that context, our practice also deals with and advocates on behalf of many individuals with disabilities when they come before the Court in a variety of different capacities.
As the partner of Executive Legal, | am writing to the Royal commission to provide some insights into
the personal experiences that our practice has had in this area and to provide some thought and guidance into our experience and the impact it has had on our clients.
| would like to provide three brief examples of Clients that we have dealt with or are aware of which
provide some context as to the work of this Commission. We have changed their names and all identifying details to protect their identity.
Background
The correlation between disability and disadvantage is extremely prevalent in Australia. People with a disability experience multiple factors that make them susceptible to violence, abuse, neglect and exploitation. Communication barriers, cognitive or intellectual impairments, physical constraints, limited access to education and financial dependency are some of the primary factors which exacerbate the disadvantage experienced by people with disabilities.
A study conducted by the Law and Justice Foundation of New South Wales supports such findings, claiming that 67% of people with a disability over the age of 15 were financially disadvantaged, 22% were from a culturally and linguistically diverse background, and 18% had low education levels. Individuals within this group are also ten times more likely to experience violence and be victims of crime. With approximately 4.3 million people in Australia who have a disability, and half of the population likely to experience a mental health condition, there is greater demand for support services. Access to legal assistance through Legal Aid and community legal centres is therefore fundamental for people with a disability who may not have the financial means or possess the
Executive Legal Pty Ltd (ACN 612 188 253) ATF Executive Legal Family Trust trading as Executive Legal. Liability Limited by a scheme approved under professional standards legislation. Page 1 of 3
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capabilities to understand complex legal processes. However, legal services that are targeted toward people with a disability have struggled to meet legal demand due to resource constraints. Where legal assistance services are not provided, disabled individuals may be required to self-represent, often
creating a barrier to justice particularly for individuals with cognitive impairments. Awareness
concerning this group at all levels of the justice system is required in order to accommodate their
needs. Increased awareness of people with a disability will assist in the provision of hearing aids and other support services as well as reduce the stigma often attach to individuals with a cognitive
disability. Furthermore, policies and practices need to reflect the multifaceted disadvantage
experienced by disabled individuals to reduce violence, abuse, neglect and exploitation.
The above may demonstrate the point theoretically, but in our practice, we have seen a consistent link-in the difficulties of many Australians with a disability in meaningfully engaging with the legal process. The legal system is necessarily complex to allow it to deal with the myriad of issues and matters which it must consider. The complexity of these matters is something which creates difficulty by design for people with disabilities.
Our Client-was before the Court because he was a diagnosed Schizophrenic who suffered from horrific paranoid delusions and command hallucinations. llllwas well aware of his triggers and the matters which caused him distress and was able to articulate when he was entering an acute phase of his psychosis.
One evening,1111 began to recognise the telltale signs of a psychotic episode and would usually call the ambulance. However, his illness took hold of him and he began to scream and behave in an insane and erratic way.
llllwas taken to hospital and provided with emergency treatment, but before reaching there police had to come to his premises and he had allegedly attempted to run away from them because he believed that they were to kill him.
-was charged with an offence under the Crimes Act. He was scared and helpless and were it not for somebody making him aware of our pro bono program, he would likely have not been able to put forward a proper and meaningful response that helped him defeat the charges.
llllwas a client who had severe PTSD due to his time on- where he was involuntarily-detained as a refugee for several years. The experience had caused him to have deep levels of anxiety which would manifest in intense bouts of anger over relatively minor triggers.
After leaving-1111 had continued to explore his newfound -Faith which was the reason he gave for seeking Asylum in Australia. He was a member of the church community in good standing, until he began to have relationship difficulties with his partner.
With the pastor, he attempted to reconcile and when his partner refused, he became upset and kicked a chair so it skittered off into a corner. The police were called and-was taken away and charged with criminal offences.
Beyond the pressure of his mental illness, he now had to contend with the possibility of being
deported and the stress lead him to become even more detached from life.
Recommendations
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In preparing for this submission, there was further anecdotal evidence that could have been provided, but our aim was to provide some context to the real and practical issues that exist in the Australian legal system for Australian’s with disabilities, particularly in a criminal or forensic context.
There is an enormous overlap between mental illness and crime, often in the form of people who have
undiagnosed medical problems which create the underlying circumstances that cause criminal
actions. Under the legal framework, there is recourse to relevant legislation such as the Mental Health Forensic Provisions Act. However, we would like to suggest that in addition to the legal framework there be additional frameworks that provide recourse and assistance to people with disabilities.
As an advocate, I have frequently appeared before the Mental Health Review Tribunal and the Guardianship Tribunal which expertly provide and support people with disabilities in achieving the best possible outcomes. These forums are filled with specialists who understand and ameliorate much of the work of the Court by treating and dealing with issues that are best dealt with in a different context. I would ask that the Commission consider an extension of the powers of the tribunal to deal with matters of appropriateness of diversion in criminal matters are consider setting up a separate legal process for people with mental illness which does not commence in the criminal jurisdiction of the Court, but may be diverted there if mental illness is not in issue. I understand that Queensland has employed such a system to great success.
Conclusion
The challenges faced by Australians with disability are already substantial and we ask that the commission consider this submission in relation to its ultimate recommendations.
We thank the Commission for its attention and its assistance with this critical issue.
Kind regards,
Jahan Kalantar
Partner
EXECUTIVE LEGAL
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