People with disabilities
There are many different types and levels of disabilities, with almost 1 in 5 residents of NSW having some form of disability. It is preferable to emphasise the person rather than the disability and the purpose of this chapter is to:
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highlight the numbers, types, levels and discrimination faced by those with a disability and provide information how language can have the effect of stereotyping, depersonalising, humiliating or discriminating against people with disabilities; and
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provide guidance about how judicial officers may take account of this information in court — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.
5.1 Defining disability and some statistics
“Disability” is defined for the purposes of the Anti-Discrimination Act 1977 (NSW) in s 4 as:
- (a)
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total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
- (b)
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the presence in a person’s body of organisms causing or capable of causing disease or illness, or
- (c)
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the malfunction, malformation or disfigurement of a part of a person’s body, or
- (d)
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a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
- (e)
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a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The term “disability” as used in this chapter refers to physical, intellectual, psychiatric disabilities, and behavioural disorders, which give rise to impairments, limitations or restrictions on activities that have lasted or are likely to last for at least six months.[1]
Statistics reveal the following about people with disabilities who are resident in NSW:[2]
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Numbers of people with disabilities:
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Of the 7.80 million residents of NSW, 1.37 million (18.34%) have a disability — almost one in five. This is similar to the Australia-wide statistics where of 23.401 million Australians, 4.3 million have a disability (18.3%).[3]
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In NSW, overall by age, the figure is equal with 18.2% of women and men having a disability. Differences between the sexes grew in older age groups (75 years and over) particularly where there was a profound or severe core activity limitation (55.2% for females; 48.6% for males).
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Older people (aged 65 years and older) with a disability number 600,800 in NSW (43.7% of all people with a disability in NSW).
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Types of disability:
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78.1% of people in NSW with disabilities have a physical condition (including acquired brain injury, arthritis, asthma, multiple sclerosis, spinal cord injury, stroke).
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20.3% of people in NSW with disabilities have “mental or behavioural[4] disorders”.
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5.89% of people with disabilities in NSW have an intellectual disability
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7.38% of the NSW population with disabilities have psychoses and mood affective disorders (including dementia, depression).
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In 2015, the estimated number of people living with HIV infection in NSW was 17,945 (92% male; 6.4% female), and Australia-wide was 25,313 (89.0% male; 11.1% female).[5]
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Up to 45% of the Australian population report having experienced a mental disorder (including depression, anxiety and substance abuse) at some time in their lifetime. The incidence of mental disorder is highest among people aged 16–24.[6] See 5.2.2.6.
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Disability rate in NSW for people who speak a language other than English is 14.9% as opposed to English-speaking people with disabilities at 18.3%.
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Approximately 17–18% of Australians aged 15–74 have very poor English prose and document literacy skills.[7] This percentage is higher for those with English as a second language (34%). They can be expected to experience considerable difficulties in using many of the printed materials that are encountered in daily life.[8] (Although not generally counted as a disability by people with disabilities, poor literacy skills are dealt with in this section, as they can often be managed using some of the communication skills techniques listed in 5.4.3.)
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Level of disability:
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About 444,200 of the NSW population (5.93%) have profound or severe core activity limitations (32.4% of people with disabilities), which restrict[9] their everyday activities in relation to self-care, mobility, communication, schooling and/or employment.
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640,900 of the NSW population (46.7% of people with disabilities) have moderate or mild core activity limitations.
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618,000 of the NSW population (45.1% of people with disabilities) are restricted in relation to schooling or employment.
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309,000 of the NSW population (22.53% of people with disabilities) require mobility assistance. Of these, 218,200 (15.92% of people with disabilities) use a mobility aid.
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Care, assistance and support:[10]
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278,700 of the NSW population with disabilities have a primary carer (20.2% of people with disabilities). The range of carers included partners of the recipient of care (38.8%), the child of the recipient (28.4%) or the parent of the recipient (21.9%). Figures concerning the reliance on outside help included the use of a range of organised services — 43.7% were satisfied with the services available to assist with the caring role while 24.2% did not know the range of services available.
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Women do most of the caring — numbering 190,900 in NSW (representing 68.4% of primary carers) while men numbered 87,800 (31.5% of primary carers).
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33% of primary carers in NSW and 29.7% of other carers have disabilities themselves.
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Accommodation:
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90.8% of people with disabilities in NSW live in a private dwelling, with 9.1% living alone.
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0.8% of people with disabilities live in a non-private dwelling, such as accommodation where care is provided.
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Employment and income:
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People aged between 15 and 64 years (people of working age) with disability in NSW have under unemployment rates (8.5%) than people without a disability (4.6%).
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People in NSW of working age with a disability have lower participation rates (50.6%) than people without a disability (80.5%).
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The median gross weekly personal income of people of working age with a disability is slightly under half that of people without a disability (49.5%).[11]
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Of the 2.99 million Australians living in poverty, 620,600 people (as at 2014) with a disability are living below the poverty line of 50% of median household income (27.4%).[12]
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55% of people with disabilities are reliant on a government pension or benefit as their main source of income.
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People with a medium level of disability require an extra 40% of income to cover the extra costs associated with their disability; people with a severe level of disability require an extra 69.3% of income to cover the extra costs associated with their disability.[13]
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Education:
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24.1% of people in NSW with disabilities aged 15 years and over have completed year 12 or equivalent, compared to 72% of people without disabilities.[14]
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11.7% of people in NSW with disabilities aged 15 years and over hold a bachelor degree or above, compared with 26.4% of people without disabilities.
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59.25% of primary and secondary school students in support classes in mainstream Government schools in NSW demonstrate a range of intellectual disability. The top two categories are mild intellectual disability (22.6%) and moderate or severe intellectual disability (19.3%).[15]
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Crime:
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People with intellectual disabilities are “significantly overrepresented” in the criminal justice system.[16]
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54% of female prison inmates and 46% of male prison inmates reported a disability or illness that had impacted on their health for six months or more.[17]
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In the same survey, a staggering 35% of female prison inmates and 52% of male prison inmates reported head injuries resulting in an episode of unconsciousness or “blacking out”.
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54% of female prison inmates and 47% of male prison inmates had been assessed or treated by a doctor or a psychiatrist at some time in the past as having a mental health problem. Of these, 20% of women and 15% of men had been admitted to a psychiatric unit or hospital.[18]
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Depression, anxiety and drug dependence were three of the most common self-reported mental health conditions.
2009 NSW IHS Men Women Diagnosis* Frequency % Cases Frequency % Cases Depression 259 33.1 86 44.8 Drug dependence 158 20.2 49 25.5 Anxiety 175 22.3 65 33.9 Alcohol Dependence 100 12.8 19 10.0 ADD/ADHD 93 11.8 6 3.1 Schizophrenia 69 8.8 17 8.9 Personality disorder 70 9.0 29 15.3 Manic Depressive Psychosis 65 8.3 24 12.6[19] [19] ibid, p 135.
* Respondents could report more than one condition.
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A 2008 study of young offenders on community orders found that 42% of young offenders were functioning in the borderline range of intellectual function or lower.[20] Twelve per cent had a “culture fair” IQ range that fell in the intellectually disabled range.[21] Eight per cent had scores on both the WASI and WIAT-II-A that fell within the ID range. [22]
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Theft and road traffic/motor vehicle regulatory offences are the most common offences (40%) committed by a group of people with acquired brain injury according to a report that came out in 2011.[23] Public order offences were the second most common offences (12%) and acts intended to cause injury were at 10%.
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Discrimination:[24]
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During 2015–2016, 37% of claims were lodged under the Disability Discrimination Act 1992 (Cth). These complaints were the most common type of discrimination claimed at the Australian Human Rights Commission. During the 2013–2014 period, disability discrimination was the most common type of complaint received by the Anti-Discrimination Board of NSW amounting to 27.9% of all complaints.[25]
The United Nations Convention on the Rights of Persons with Disabilities and the National Disability Strategy will be taken into consideration when NSW legislation is drafted, updated and/or reviewed: s 4 of the NSW Disability Inclusion Action Plan 2015–2018.[26]
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5.2 Some general information
5.2.1 Background information
There are many different types of disabilities — all of which can be grouped and sub-grouped in any number of ways. We have chosen to group them as follows:
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Physical disability — including deafness or hearing impairments, blindness or visual impairments, mobility disabilities, and other forms of physical differences in the body or its functioning.
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Intellectual disability — including difficulty learning and understanding things.
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Brain injury — which may result in physical disabilities and/or cognitive disabilities.
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Psychiatric disability — including mental illness, and/or behavioural disorders.
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Drug or alcohol dependence — in some cases, this may have led to other types of disabilities — for example, alcohol-related dementia. Korsakoff’s syndrome and Wenicke/Korsakoff syndrome are particular forms of alcohol related brain injury which may be related to alcohol related dementia.[27]
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Reading and/or writing difficulties — including poor literacy skills and dyslexia. (Although not generally counted as a disability by people with disabilities, reading and/or writing difficulties are listed in this section, as they can often be managed using some of the communication skills techniques listed at 5.4.3).
Each of these disabilities (apart from drug or alcohol dependence, and reading or writing difficulties) is described at 5.2.2.
Range of disabilities:
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Some people with disabilities have one disability only, some have more than one disability within the same grouping listed above, and others have more than one disability from two or more of the groupings listed above.
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No two people with the same type of disability are alike in relation to their disability or their abilities. Every type of disability affects people in different ways. A disability may range from having a minor impact on how a person conducts their life to having a profound impact.
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Some disabilities are permanent, some are temporary, some are episodic.
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Some disabilities are obvious and some are hidden.
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However, many people with disabilities require some form of equipment, procedural considerations and/or communication adjustment(s) to be made if they are to be able to interact effectively in relation to court proceedings.
5.2.2 Descriptions of the main types of disabilities[28]
5.2.2.1 Physical disabilities — excluding deafness, hearing impairments, blindness and visual impairments
A physical disability may have existed since birth or it could have resulted from accident, illness, or injury.
A physical disability may be mild, moderate or severe in terms of the way in which it affects the person’s life.
A person with a physical disability may need to use some sort of equipment for assistance with mobility. A person with a physical disability may have lost a limb or, because of the shape or size of their body, or because of a disease or illness, require slight adaptations to be made to enable them to participate fully in society.
Some common physical disabilities are:
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Quadriplegia — Complete or partial loss of function (movement or sensation) in the trunk, lower limbs and upper limbs. Generally, this has resulted from damage high in the spinal column — for example, the neck.
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Paraplegia — Complete or partial loss of function (movement or sensation) in the trunk and lower limbs. Generally, this has resulted from damage lower in the spinal column — for example, below the neck.
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Cerebral Palsy — A disorder of movement and posture due to a defect or lesion on the immature brain. Cerebral Palsy can cause stiffness of muscles, erratic movement of muscles or tremors, a loss of balance, and possibly speech impairments. A person with Cerebral Palsy may have other disabilities including sensory impairment, epilepsy, and/or intellectual disability. But do not assume that a person with Cerebral Palsy has another disability. There are many people with Cerebral Palsy who do not have an intellectual disability.
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Epilepsy — A disorder of the brain function that, if untreated, results in seizures. Seizures are disturbances within specific areas of the brain that cause loss of control of one or more aspects of bodily activity. Seizures can be provoked by flashing lights, physical activity, stress, low blood sugar, high caffeine intake and lack of sleep.
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Arthritis — A generic term for 150 different diseases that affect the joints of the body. The main types of arthritis are osteoarthritis, rheumatoid arthritis and gout. Common symptoms include pain, swelling and stiffness in one or more of the joints. Two out of three people with arthritis are under the age of 65.
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There are many other physical disabilities — including amputations, scarring, asthma, cystic fibrosis, muscular dystrophy, kidney disease, liver disease, cardiopulmonary disease (heart problems), diabetes, HIV/AIDS, cancer, illnesses and other diseases.
5.2.2.2 Deafness and hearing impairments
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Deafness — complete, or almost complete, inability to hear. People who are deaf rely on their vision to assist them to communicate, and use a variety of ways to communicate — including Australian sign language (Auslan), lip reading, writing and expressive speech. Many people who are deaf regard deafness as a culture rather than as a disability. Deaf culture includes areas such as art, language, sport and history.
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Deafblindness — a loss of vision and hearing. Most people with deafblindness have some residual hearing and/or sight. Deafblindness varies with each person — for example, a person may be hard of hearing and totally blind, or profoundly deaf and partially sighted, or have nearly complete or complete loss of both senses.
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Hearing impairment — A person who has a hearing impairment has a partial hearing loss. The hearing loss may be mild, moderate, or severe. A person who has a hearing impairment will usually prefer to rely as much as possible on their available hearing with the assistance of hearing aids or assistive listening devices. They may use a hearing aid, lip reading and speech to communicate. Note that hearing aids do not necessarily restore a person’s hearing to the capacity of a person without a hearing impairment, and for some people hearing aids are not helpful. Many people who have hearing impairments regard their impairment as a disability.
5.2.2.3 Blindness and visual impairments
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Blindness — a complete, or almost complete, loss of vision. People who are blind vary in their ability to see. Some may be able to perceive light, shadow and/or shapes; others see nothing at all. People who are blind may use a guide dog, a white cane (the international symbol of vision impairment), or a laser sensor or pathfinder. People who are blind may read using Braille, computer assisted technology and/or audio tapes.
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Colour Blindness — an inability to distinguish between colours. Some people with colour blindness only have difficulty distinguishing between the colours red and green, whereas others see the world in black, white and grey.
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Deafblindness — see 5.2.2.2.
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Visual Impairment/Low Vision — a partial loss of vision that is not correctable by wearing glasses and that therefore affects the performance of daily tasks.
5.2.2.4 Intellectual disabilities
Intellectual disability is defined in terms of an individual’s level of intellectual (cognitive) functioning as assessed by qualified psychologists using recognised psychometric tests of intelligence, tests of adaptive functioning, and assessment of ability to perform a range of cognitive, social and behavioural tasks required for independent living. In lay terms, intellectual disability refers to a slowness to learn and process information.[29]
Deficits in adaptive behaviour refer to limitations in such areas as communication, social skills and ability to live independently.
An intellectual disability is permanent. It is not a sickness, cannot be cured and is not medically treatable. People are born with an intellectual disability. It may be detected in childhood or it may not be detected until later in life.
There are various types and degrees of intellectual disability. One of the more common causes of intellectual disability is Down syndrome.
People with an intellectual disability can, and do, learn a wide range of skills throughout their lives. The effects of an intellectual disability (for example, difficulties in learning and development) can be minimised through appropriate levels of support, early intervention and educational opportunities.
Importantly, and contrary to some of the extreme misconceptions that may be held about people with intellectual disabilities, they are not compulsive liars (see also “Capacity to give evidence” at 5.3.1); are not either asexual or extremely promiscuous (applied particularly to women); and do feel emotion and pain.
Depending on the person, a person with an intellectual disability may:
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Take longer to absorb information.
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Have difficulty understanding questions, abstract concepts or instructions.
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Have difficulty with reading and writing.
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Have difficulty with numbers and other measures such as money, time and dates.
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Have a short attention span and be easily distracted.
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Have difficulty with short and/or long term memory.
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Find it difficult to maintain eye contact.
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Find it difficult to adapt to new environments and situations.
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Find it difficult to plan ahead or solve problems.
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Find communication over the phone difficult.
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Have difficulty expressing their needs.
5.2.2.5 Acquired Brain Injury (ABI)
Acquired brain injury is an injury to the brain that results in changes or deterioration in a person’s cognitive, physical, emotional and/or independent functioning. People may have an acquired brain injury as a consequence of a trauma (for example, a car accident), stroke, infection, neurological disease (dementia), tumour, hypoxia and/or substance abuse.
Disability resulting from an acquired brain injury can be temporary or permanent and can be mild, moderate or severe. It is rarely assisted by medication. Every brain injury is different. Two injuries may appear to be similar but the outcomes can be vastly different. Brain injury may result in a physical disability only, or in a personality or thinking process change only, or in a combination of physical and cognitive disabilities. Acquired brain injury may result in:
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memory loss
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lack of concentration
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lack of motivation
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tiredness
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difficulty with abstract thinking
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behavioural disinhibition resulting in inappropriate behaviour
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mood swings
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agitation and frustration.
5.2.2.6 Psychiatric disabilities
A psychiatric disability is a condition that impairs a person’s mental functioning.
Psychiatric disability may be long-term, but is often temporary and/or episodic. Long-term psychiatric disability and the drugs used to control it do affect cognitive ability, especially in schizophrenia spectrum disorders and schizo-affective disorder, where there is often marked cognitive impairment, particularly in executive function.
Psychiatric disability is generally characterised by the presence of any one or more of the following symptoms or signs:
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irrational behaviour that may be sustained or episodic and may indicate that the person is having delusions or hallucinations, including hearing voices
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serious disorder of thoughts
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paranoia
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mood swings of great elation or
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excitement and depression
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inappropriate dress, speech, expressed emotions, behaviour and/or ideas.
Some of the most common psychiatric disorders are:
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Schizophrenia spectrum disorders — a confusion or disturbance of a person’s thinking processes — including delusions, hallucinations and/or hearing voices, disordered thinking and speech, abnormal motor behaviour and negative symptoms such as lethargy, anhedonia (an inability to feel pleasure) and flat affect (ie diminished emotional expression). Schizophrenia is not a “split personality”, or “multiple personality disorder”. Multiple personality disorder is a very rare condition. Importantly, and contrary to popular opinion, people with schizophrenia are not generally dangerous or violent when receiving appropriate treatment.
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Bipolar disorder — this used to be called “manic depressive illness”. There are two sub-classifications of this disorder — Bipolar I Disorder and Bipolar II Disorder. Bipolar I Disorder involves the experience of both manic episodes (feelings of elation, grandiosity, decreased need for sleep and a flight of ideas) and major depressive episodes. Bipolar II is diagnosed when there is hypomania (mood and energy elevation, with mild impairment of judgement and insight) and major depression.
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Depressive disorders — is a group of mood disorders that include major depressive disorder, major depressive episode and persistent dysthymia (also known as neurotic depression) — all characterised by sad, empty and irritable moods, together with cognitive and somatic changes that affect a person’s ability to cope with daily life.
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Anxiety disorders — is a group of mood disorders that result in intense feelings of apprehension, tension and/or fear without a discernible cause and that seriously affect a person’s ability to cope with daily life. Anxiety can take the form of a specific phobia or more pervasive forms such as generalised anxiety disorder, social anxiety and agoraphobia — which is a fear of real or anticipated exposure in a wide range of situations including both open and enclosed spaces. Panic attacks may occur in the full range of anxiety disorders but are not a separate mental disorder.
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Obsessive-Compulsive Disorder (OCD) — a disorder that is characterised by the experience of obsessions, compulsions and other body-focused repetitive behaviours, and is now coded[30] with body dysmorphic disorder (BDD) (a body image disorder), hair-pulling disorder (trichotillomania) and compulsive skin-picking disorder (CSP).
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Hoarding Disorder — a disorder that is characterised by a persistent sense of distress at discarding possessions. One of the prominent features of the disorder is a feeling of indecisiveness and difficulties with procrastination.
5.2.2.7 Human immunodeficiency virus (HIV)[31]
Human immunodeficiency virus (HIV) is a virus that damages the body’s immune system and makes a person more vulnerable to infections, certain cancers and other disorders, including:
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dementia
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viral infections affecting the central nervous system
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fungal and parasitic infections
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neuropathy
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anxiety disorders and depression.
Infections associated with severe immunodeficiency caused by HIV are known as “opportunistic infections” because they take advantage of a weakened immune system.
HIV can progress to AIDS (acquired immune deficiency syndrome). The two terms cannot be used interchangeably because although they relate to the same disease progression, they refer to discrete diagnoses.
HIV can be present in blood, semen, pre-ejaculatory fluid, anal mucus, vaginal secretions and breast milk of an HIV-positive person. A person can only become infected if one of these enters his or her blood stream. In Australia, the two main ways in which infection occurs are during unprotected sex and by sharing needles/syringes. Other ways in which infection can occur include:
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tattooing and other procedures that involve unsterile cutting or piercing
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transmission by an HIV-positive woman to her baby during pregnancy, birth or during breastfeeding
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workplace exposure to body fluids (eg, “needlestick” injuries)
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through contaminated blood supplies (for transfusions and other blood products); though in Australia, the blood supply is regarded as safe.
With the effective antiretroviral therapy now available in Australia, AIDS diagnoses are uncommon and people who seek treatment early generally have a life expectancy similar to that of their HIV-negative counterparts. If untreated, most people with HIV develop signs of HIV-related illness within 5 to 10 years.
HIV remains an incurable infection and the treatments can have side effects, including fatigue, loss of appetite, nausea, diarrhoea, aches, neurologic problems, skin problems, loss of bone density, lipodystrophy, sexual difficulties, cardiac effects, liver toxicity and others. Some people may also develop resistance to certain treatments, which can limit the efficacy and range of treatment options available to that person.
5.2.2.8 Foetal Alcohol Spectrum Disorders (FASD)
Foetal Alcohol Spectrum Disorders are experienced by individuals who have been exposed prenatally to alcohol.[32] This is an umbrella term that captures those individuals who have a unique range of physical, intellectual and behavioural disabilities. Individuals with this type of disorder may display specific facial anomalies, growth retardation, organ damage, hearing difficulties and vision problems, as well as the following behaviours:
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difficulty remembering. Children with FASD are 87 times more likely to have problems with memory than those without FASD.[33]
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difficulty controlling their impulses
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difficulty planning and organising their actions
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difficulty showing empathy
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difficulty taking responsibility for their actions
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difficulty controlling their frustration and anger
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difficulty identifying the consequences of their actions
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find it hard to withstand social pressure.[34]
There is growing awareness of the prevalence and impacts of foetal alcohol spectrum disorders (FASD) in Australia. Neuro-developmental impairments due to FASD can predispose young people to interactions with the law. A Western Australian prevalence study of 99 young people in youth detention (93% male and 74% Aboriginal) found that 88 young people (89%) had at least one domain of severe neuro-developmental impairment, and 36 were diagnosed with FASD, a prevalence of 36%. The study highlight the vulnerability of young people, particularly Aboriginal youth, within the justice system and their significant need for improved diagnosis to identify their strengths and difficulties, and to guide and improve their rehabilitation.[35]
In LCM v State of Western Australia (2016) 262 A Crim R 1, the West Australian Court of Appeal considered the medical condition of foetal alcohol spectrum disorder (FASD) and how it is relevant in sentencing proceedings. The court recognised that FASD is a mental impairment and as such engaged sentencing principles relating to an individual offender’s mental condition: LCM v State of Western Australia at [121]. See Sentencing Bench Book at [10-450].
5.2.2.9 Dealing with the media
It is important to be aware of the presence of media in the courtroom and the reporting of court decisions in the news. Courts are often a source of news items for media outlets.
In some circumstances, it may be appropriate to seek advice from your media liaison officer, or to control the amount and detail of information in judgments. For instance, where the circumstances disclose facts which may be “sensationalised” by media, a detailed factual description of events might be capable of reinforcing stereotypes of those who have a mental illness.
For further advice and information, see Mental Illness & Suicide in the Media: A Mindframe Resource for Courts.[36] This is a resource booklet funded by the federal Government. The booklet was developed by the Hunter Institute of Mental Health and advised by a panel of mental health experts. The booklet’s objective is to destigmatise mental illness and to encourage media reporting about mental illness consistent with best practice guidelines.
5.2.3 Terminology[37]
Within the disability movement, there have been several changes over the years to the terms people with disabilities prefer to be used to describe people with disabilities.
It is preferable to emphasise the person rather than the disability. People with a disability are people first who happen to have a disability. Terms such as “suffer”, “stricken with”, “victim” or “challenged” are also not generally appreciated. Most people with disabilities prefer to talk about what they can do, not what they may be unable to do, and indeed, to talk about the additional activities many of them might be able to do if we as a community made some (often simple) adjustments.
The way language is used can have a profound impact on people with disabilities. Language can have the effect of stereotyping, depersonalising, humiliating or discriminating against people with disabilities. Language can result in a person with a disability feeling respected and worthwhile or disregarded and marginalised. People with disabilities, like everyone else, want to be treated as valued members of society. Terms such as “crazy”, “mental”, “retard(ed)”, “slow” or “defective” are not accurate terms for people with disabilities and are no longer used — except in a derogatory way.
The term “disabled” is also not liked because it has negative connotations in that it reflects a sense of being “not able”, “not working” or “broken down”. It is also untrue, in that most people with disabilities are able to do a range of things. Many people with disabilities have full lives, including working, having a family, playing sport and community involvement.
| Some examples of appropriate and inappropriate terminology | |
|---|---|
| Use | Do not use |
| A person with a disability | Disabled/handicapped (person), invalid |
| People with disabilities | The disabled, the handicapped, invalids |
| A person with a psychiatric disability, or a person with a mental illness | Mad, crazy, mental |
| A person with Down syndrome | Mongol, mongoloid |
| A person with Cerebral Palsy | Spastic, sufferer of/someone who suffers from Cerebral Palsy |
| A person with an intellectual disability | Mental retard, mentally retarded, retard |
| A person who has epilepsy | Epileptic |
| A person of short stature | Dwarf |
| A person who has … (specify the actual deformity) | A deformed person |
| A person in a coma/who is unconscious | A vegetable/in a vegetative state |
| A person who is deaf, or a person who has a hearing impairment | Deaf person, hearing impaired |
| A person who uses a wheelchair | A person confined to a wheelchair |
| Seizure | Fit, spell, attack |
| Accessible Toilet/ Entry/ Parking | Disabled Toilet/Entry/Parking (because disabled as an adjective is seen as meaning that it’s not working). |
| A person who has … (specify the disability) | Stricken, suffers from, challenged, victim |
5.2.4 Examples of the barriers for people with disabilities in relation to court proceedings
The barriers for people with disabilities in relation to court proceedings — whether as a juror, support person, witness or accused — obviously depend on the type and severity of the particular person’s disabilities.
There are numerous barriers to the full participation of people with disabilities — unless some appropriate adjustment or adjustments are made. A few examples follow.
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For people with physical disabilities:
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Inaccessible venue or courtroom facilities (for example, stairs not lifts, narrow doors, high buttons/handles/counters, an inaccessible witness box, slippery floors, no nearby parking, steep inclines, heavy doors, round or hard to grip door knobs).
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Inability to sit or stand in the same position either at all or beyond a particular time and/or fatigue.
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Communication barriers related to deafness or hearing impairment, blindness or visual impairment, or a speech impairment.
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For people with intellectual disabilities:
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Communication barriers — the language used is too complex, fast or abstract, and/or the proceedings are too lengthy.
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Fatigue.
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For people with an acquired brain injury:
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Any one or more of the barriers listed in the preceding two points, plus their communication barriers may be exacerbated by, for example, being unable to concentrate and/or process information easily, memory difficulties, and/ or by having disinhibited behaviour.
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For people with Foetal Alcohol Spectrum Disorder:
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Any one or more of the barriers listed in the first two points, plus behavioural disabilities.
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Difficulty in understanding the court process.
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Diminished competency and capacity to fully grasp the severity of the situation.
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A potential to make false confessions without understanding the legal consequences of such an act.
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For people with psychiatric disabilities or behaviour differences:
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Communication barriers — for example, they may be easily distracted, very jumbled, severely distressed/anxious/frightened, manic, delusory and/or aggressive or angry.
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5.2.5 Making adjustments for people with disabilities
5.2.5.1 Reasonable adjustments
Many of the barriers listed in 5.2.4 can be substantially mitigated (and in some cases, completely mitigated) if the court makes appropriate adjustments.
Failure to make reasonable adjustments for the person with a disability may amount to discrimination pursuant to the Disability Discrimination Act 1992 (Cth). An adjustment is “reasonable” if it does not cause unjustifiable hardship to the person making it.[38]
If such adjustments are not made, people with disabilities and/or any carers are likely to:
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not be able to participate fully, adequately, or at all in court proceedings
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feel uncomfortable, fearful or overwhelmed
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feel resentful or offended by what occurs in court
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not understand what is happening and/or be able to get their point of view across and be adequately understood
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feel that an injustice has occurred
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in some cases be treated with less respect, unfairly and/or unjustly when compared with other people.
5.2.5.2 Assistance animals
An assistance animal or service dog is an animal trained to alleviate the effect of the person’s disability and to meet the standards of hygiene and behaviour appropriate to an animal in a public place, or an animal that is accredited as an assistance animal under a State or Territory law or by a prescribed animal training organisation.[39] These animals are trained to assist people with disabilities by accomplishing multiple tasks, such as retrieving items, activating light switches, opening and closing doors and many other tasks specific to the needs of each individual. These animals increase the independence and self-esteem of the individual and are trained to support their owner in their home and community environments. They are trained to travel on public transport and to support their owner in public settings.
Assistance animals are used not only by people who are blind or vision-impaired, but also by a range of other people with disabilities, including people who are deaf or hearing impaired, people who experience epileptic seizures, people with mental illness and people with physical disabilities.
Under s 59 of the Companion Animals Act 1998 (NSW) and s 9 of the Disability Discrimination Act 1992 (Cth) there is no distinction between assistance animals, service dogs and guide dogs. A person with a disability is generally entitled to be accompanied by an assistance animal in a public place.[40]
Section 5.4 provides additional information and practical guidance about ways of making appropriate adjustments for and treating people with disabilities so as to reduce the likelihood of these problems occurring and help ensure that a just outcome is achieved.
5.3 Legal capacity
5.3.1 Capacity to give evidence
In most cases, people with disabilities will have the legal capacity to give sworn evidence in the same way as anyone else[41] — as long as, where required, appropriate adjustments are made so that evidence can be successfully communicated.[42] For the types of adjustments that may need to be made see 5.4.1.
People with intellectual disabilities may be vulnerable to prejudicial assessments of their competence, reliability and credibility if judicial officers and juries have preconceived views regarding a person with an intellectual disability. For example, they may fail to attach adequate weight to the evidence provided because they doubt that the person with intellectual disability fully understands their obligation to tell the truth. In addition, people with an intellectual disability are vulnerable to having their evidence discredited in court because of behavioural and communication issues associated with their disability.
It may be necessary for some people with disabilities (in particular those with severe intellectual disabilities) to give unsworn evidence. A person with disabilities is presumed competent to give unsworn evidence if the court has told the person the matters mentioned in s 13(5) of the Evidence Act 1995 (NSW) including that it is important to tell the truth.[43]
Research suggests that, contrary to public perception, most people with intellectual disabilities are no different from the general population in their ability to give reliable evidence — as long as communication techniques are used that are appropriate for the particular person[44] — see 5.4.3.4. In some cases, however, a psychologist’s assessment may be required in order to adequately assess a particular person’s ability to give evidence, help the court to understand the person’s characteristics and demeanour and/ or how best to communicate with them in court.
5.3.2 Criminal responsibility
Some people with intellectual disabilities and/or psychiatric disabilities may (because of the level and nature of their disability) be unfit to plead and/or be unfit to be tried, or be found not guilty by reason of mental illness. For the procedures to be used in such cases including the orders that can be made and how to refer such matters to the Mental Health Review Tribunal, see the Criminal Trial Courts Bench Book under “Trial instructions R–Z — Unfitness” at [4-300]ff and “Procedure for fitness to be tried and mental illness cases” at [4-325].[45] At the Local Court level, a magistrate may need to hold an inquiry to determine whether the person is mentally ill and/or developmentally disabled, and if determined as such, make an appropriate order for assessment, treatment, or discharge — for the procedures to be used in such cases see the Local Court Bench Book under “Inquiries under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020”.[46]
Given the number of people in prison with intellectual and psychiatric disabilities (see statistics at 5.1), it is important that these provisions are used, where appropriate, because in some cases the stigma of raising the existence of a mental illness or a developmental disability may mean that, unless the court intervenes at an earlier stage, a person may end up unjustly convicted and/or sentenced. On the other hand, it is also important to ensure that they are not used when they should not be.
Some people with intellectual disabilities are not capable of forming an intention. This means they may have a defence of “substantial impairment by abnormality of mind”, enabling a murder charge to be reduced to a manslaughter charge.[47]
Some people may also have a similar defence for a range of criminal allegations in that they were temporarily incapable of forming an intention at the particular time — due for example, to intoxication — see the Criminal Trial Courts Bench Book under “Trial instructions H–Q — Intoxication”,[48] “Trial instructions H–Q — Intention”,[49] and “Defences”.[50]
5.4 Practical considerations
5.4.1 Adjustments that may need to be considered before the proceedings start, or at the time a person with a disability first appears in court
Many people with disabilities need adjustments to be made in order for them to be able to give evidence effectively. Some of these may take some discussion to work out exactly what is required, and then some time to organise.
Hopefully, the court will have advance notice of any such possible needs from the person themselves, their support person or carer, or their legal representative. At other times, the court may not find out a person’s needs until they appear.
5.4.2 Oaths, affirmations and declarations
5.4.3 Language and communication[60]
5.4.3.1 Initial considerations
Just the same as anyone else who appears in court, a person with a disability needs to understand what is going on, the meaning of any questions asked of them, and to be sure that their evidence and replies to questions are adequately understood by the court.
It is also critical that people with disabilities are treated with the same respect as anyone else.
As indicated in 5.4.1, some people with disabilities will need some form of communication aid or interpreter to be made available for them to be able to communicate their evidence and/or hear what is being said by others. They may also need some adjustments to be made in the level or style of language used, and/or the manner in which they are given information about what is going on.
Some people who do not need a communication aid or interpreter may also need adjustments to be made in the level or style of language used and/or the manner in which they are given information about what is going on.
5.4.3.2 General communication guidance
5.4.3.3 Level and style of language to suit particular needs
-
People with physical disabilities — you may need to adjust the level of your language in order to communicate effectively with some people with physical disabilities — see 5.4.3.4.
-
People with intellectual disabilities — you will almost always need to adjust both the level and the style of your language in order to be able to communicate effectively with a person with an intellectual disability. For some techniques, see 5.4.3.5.
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People with an acquired brain injury — you may need to adjust the style and/or the level of your language in order to be able to communicate effectively with most people with an acquired brain injury. It is important to ascertain whether the brain injury affected receptive or expressive language. For some techniques, see 5.4.3.6.
-
People with psychiatric disabilities or behaviour differences — you may need to adjust the style and/or the level of your language to be able to communicate effectively with some people with psychiatric disabilities or behaviour differences. For some techniques see 5.4.3.7.
-
People with foetal alcohol spectrum disorders — you may need to adjust the style and/or the level of your language to communicate with some people with foetal alcohol spectrum disorders. Such individuals may be affected by physical, intellectual and/or behavioural disabilities — see 5.4.3.4, 5.4.3.5 and 5.4.3.7.
5.4.3.4 Communication techniques for people with physical disabilities
5.4.3.5 Communication techniques for people with intellectual disabilities
5.4.3.6 Communication techniques for people with an acquired brain injury
5.4.3.7 Communication techniques for people with psychiatric disabilities or behaviour differences
5.4.4 Breaks and adjournments
5.4.5 The possible impact of a person’s disability or disabilities on any behaviour relevant to the matter(s) before the court
5.4.6 Directions to the jury — points to consider
5.4.7 Sentencing, other decisions and judgment or decision writing — points to consider
5.5 Further information or help
-
Information and advice about accommodating the needs of a particular person with a disability:
-
Department of Justice (NSW), “Discrimination Disability” — under “LawAccess NSW”, “Human Rights”.
-
Diversity Services — Department of Justice (NSW)
Ph: (02) 8688 7507
Email:diversity_services@justice.nsw.gov.au
Web: www.justice.nsw.gv.au/diversityservices
-
-
Auslan interpreter:
-
Multicultural NSW — note that for criminal matters, courts have a contract with the Multicultural NSW to provide Auslan interpreters free of charge — Ph: (02) 8255 6767
Email:contact@multicultural.nsw.gov.au
Web: www.multicultural.nsw.gov.au -
Deaf Society of NSW
Ph: (02) 8833 3600
TTY (02) 8833 3691
Email:info@deafsociety.com
Web: http://deafsocietynsw.org.au/
-
-
General information and advice about people with disabilities:
-
Justice Health and Forensic Mental Health Network
PO Box 150, Matraville NSW 2036
Ph: (02) 9700 3000
Fax: (02) 9700 3493
Email:jhadmin@justicehealth.nsw.gov.au
Web: www.justicehealth.nsw.gov.au -
Australian Centre for Disability Law
PO Box 989
Strawberry Hills NSW 2012
Ph: (02) 9370 3135 or 1800 800 708
Fax: (02) 9370 3131
TTY: (02) 9211 5549
Email:adviceline@disabilitylaw.org.au
Web: www.disabilitylaw.org.au -
Disability Council NSW
Level 4, 223–229 Liverpool Road, Ashfield NSW 2131
Phone/TTY: (02) 8879 9100
Fax: (02) 8879 9177
Email:DisabilityCouncil@facs.nsw.gov.au
Web: www.disabilitycouncil.nsw.gov.au
National Relay Service (NRS): 1800 555 660
TTY: 1800 555 630 -
People With Disability Australia
PO Box 666
Strawberry Hills NSW 2012
Ph: (02) 9370 3100
Freecall: 1800 422 015
TTY: (02) 9318 2138
Fax: (02) 9318 1372
Email:pwd@pwd.org.au
Web: www.pwd.org.au -
Multicultural Disability Advocacy Association of NSW
PO Box 884
Granville NSW 2142
Ph: (02) 9891 6400
Freecall: 1800 629 072
Fax: (02) 9897 9402
Email:mdaa@mdaa.org.au
Web: https://.mdaa.org.au
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-
More specific information and advice about people with particular types of disabilities:
Brain injury
-
Synapse Brain Injury Association of NSW
Suite 102, Level 1, 3 Carlingford Road
Epping NSW 2121
Freecall: 1800 673 074
Fax: (02) 9868 5619
Web: www.synapse.org.au
Psychiatric disability or behaviour disorder
-
Dementia Australia
PO Box 6042 North Ryde
Private Boxes NSW 2113
Ph: (02) 9805 0100
Gibson-Denney Centre
Building 21, Macquarie Hospital Campus
Cnr Coxs & Norton Roads
North Ryde NSW 2113
Tel: 02 9805 0100
Fax: 02 8875 4665
Email:nsw.admin@dementia.org.au
Web: www.dementia.org.au -
The Mental Health Liaison Officer
– if there is one attached to your court, or alternatively:
Statewide Community and Court Liaison Service (SCCLS)
Ph: (02) 9700 2175
Web: www.justicehealth.nsw.gov.au -
Mental Health Coordinating Council
PO Box 668 Rozelle NSW 2039
Ph: (02) 9555 8388
Fax: (02) 9810 8145
Ground Floor
Building 125
Corner Church and Glover Street
Lilyfield, NSW 2040
Email:info@mhcc.org.au
Web: www.mhcc.org.au -
Mental Health Advocacy Service
Level 4, 74–76 Burwood Road
Burwood NSW 2134
Ph: (02) 9745 4277
TTY: (02) 9747 0214
Web: www.legalaid.nsw.gov.au -
WayAhead Mental Health Association of NSW
Level 5, 80 William Street
Woolloomooloo NSW 2011
Ph: (02) 9339 6000
Mental Health Support Line: 1300 794 991
Anxiety Disorders Line: 1300 794 992
Fax: (02) 9339 6066
Email:info@wayahead.org.au
Web: wayahead.org.au -
Transcultural Mental Health Centre
Building 53 Cumberland Hospital Campus
5 Fleet Street
North Parramatta NSW 2151
Ph: (02) 9912 3850
Clinical Consultation Service and Assessment (02) 9912 3851
Freecall: 1800 648 911
Fax: (02) 9840 4180
Email:tmhc@health.nsw.gov.au
Web: www.dhi.health.nsw.gov.au/tmhc/ -
Centre for Rural and Remote Mental Health
c/o Bloomfield Hospital,
Forest Road, Orange NSW 2800
Ph: (02) 6363 8444
Fax: (02) 6361 2457
Email:crrmh@newcastle.edu.au
Web: www.crrmh.com.au
Intellectual disability
-
NSW Council for Intellectual Disability
Level 2, 418A Elizabeth Street
Surry Hills NSW 2010
Ph: (02) 9211 1611
Freecall: 1800 424 065
Email:info@nswcid.org.au
Web: www.nswcid.org.au -
Intellectual Disability Rights Service Inc
Suite 2C, 199 Regent Street
Redfern NSW 2016
PO Box 3347
Redfern NSW 2016
Ph: (02) 9318 0144
Freecall: 1800 666 611 (NSW areas outside Sydney)
Fax: (02) 9318 2887
Email:info@idrs.org.au
Web: www.idrs.org.au -
Criminal Justice Support Network (CJSN) (operated by the Intellectual Disability Rights Service (IDRS)) — provides trained court support people for people with an intellectual disability who are defendants or witnesses in criminal matters — in Sydney, Southern NSW and the Hunter region. Also provides advice for others acting as such support people
Ph: 1300 665 908 (9 am–10 pm, 7 days per week for persons with a disability in police custody)
General support phone: (02) 9318 0144 -
Self Advocacy Sydney Inc
Suite 200, Level 2
30-32 Campbell Street
Blacktown NSW 2148
Ph: (02) 9622 3005
Fax: (02) 9622 6030
Email:info@sasinc.com.au
Web: www.sasinc.com.au
Physical disability
-
Deaf Society of NSW
Suite 401, 4/69 Phillip Street
Parramatta NSW 2150
PO Box 1300
Parramatta 2124
Ph: (02) 8833 3600
TTY: (02) 8833 3691
Fax: (02) 8833 3699 -
Self Help for Hard of Hearing (SHHH) Australia
Room 26
Hillview Community Health Centre
1334 Pacific Highway
Turramurra NSW 2074
Ph: (02) 9144 7586
TTY: (02) 9144 7586
Fax: (02) 9144 3936
Web: www.shhhaust.org -
Vision Australia (NSW Office)
Level 7, 128 Marsden Street Parramatta NSW 2150
Ph: 1300 847 466 (ask for the Parramatta office)
Fax: 1300 847 329
Email:info@visionaustralia.org
Web: www.visionaustralia.org -
Guide Dogs NSW/ACT
2–4 Thomas Street
Chatswood NSW 2067
PO Box 1965
North Sydney NSW 2059
Ph: (02) 9412 9300
Fax: (02) 9412 9388
Email:chatswood@guidedogs.com.au
Web: www.guidedogs.com.au -
Blind Citizens Australia, NSW Branch
Ph: (02) 9745 4588
Email:sydney@bca.org.au
Web: www.bca.org.au -
Physical Disability Council of NSW
3/184 Glebe Point Road, Glebe NSW 2037
Ph: (02) 9552 1606
Freecall: 1800 688 831
Email:admin@pdcnsw.org.au
Web: www.pdcnsw.org.au -
Spinal Cord Injuries Australia Ltd
1 Jennifer Street
Little Bay NSW 2036
PO Box 397, Matraville NSW 2036
Ph: (02) 9661 8855
Freecall: 1800 819 775
Email:info@scia.org.au
Web: scia.org.au/ -
Northcott Disability Services
1 Fennell Street North Parramatta NSW 2151
Freecall: 1800 190 635
Email:northcott@northcott.com.au
Web: www.northcott.com.au -
Paraplegic and Quadraplegic Assoc of NSW (ParaQuad NSW)
6 Holker Street Newington NSW 2127
Ph: (02) 8741 5600
Fax: (02) 8741 5650
Web: www.paraquad.org.au -
Multiple Sclerosis Limited (MS)
Level 26 Northpoint
100 Miller Street
North Sydney NSW 2060
Tel: 1800 042 138
Email:msconnect@ms.org.au
Web: www.ms.org.au -
ACON (AIDS Council of NSW)
414 Elizabeth Street
Sydney NSW 2010
Ph: (02) 9206 2000
Fax: (02) 9206 2134
Freecall: 1800 063 060
Email:acon@acon.org.au
Web: www.acon.org.au -
HIV/AIDS Legal Centre Inc (NSW)
414 Elizabeth Street
Surry Hills NSW 2010
Tel: (02) 9206 2060
Fax: (02) 9206 2053
Web: halc.org.au -
Australian Federation of AIDS Organisations (AFAO)
Level 1, 222 King St (Sydney office)
Newtown NSW 2042
Tel: (02) 9557 9399
Web: www.afao.org.au -
Joint United Nations Programme on HIV/AIDS (UNAIDS)
20, Avenue Appia
CH-1211 Geneva 27
Switzerland
Tel: +41 22 791 36 66
Fax: +41 22 791 4187
Email:aidsinfo@unaids.org
Web: www.unaids.org -
The Kirby Institute
Level 6, High Street, Wallace Wurth Building
UNSW Australia
Kensington NSW 2052
Telephone: (02) 9385 0900
Fax: (02) 9385 0920
Email:recpt@kirby.unsw.edu.au
Web: http://kirby.unsw.edu.au/
-
5.6 Further reading
Australian Federation of AIDS Organisations, HIV media guide, “The facts about HIV”, at www.hivmediaguide.org.au/facts-about-hiv, accessed 24 April 2015.
Australian Human Rights Commission, Access to justice in the criminal system for people with disability, Issues Paper, April 2013, at www.humanrights.gov.au/publications/access-justice-criminal-justice-system-people-disability-issues-paper-april-2013, accessed 3 September 2014.
Australian Human Rights Commission, Equal before the law: towards disability justice strategies, February 2014, at www.humanrights.gov.au/publications/equal-law, accessed 3 September 2014.
Australian Institute of Health and Welfare, MR Bonello, L Hilder and EA Sullivan, Fetal alcohol spectrum disorders: strategies to address information gaps, Cat. no. PER 67, 2014.
L Babb, “New Mental Health Criminal Procedures” (2006) 18(1) JOB 1.
C Bower, R Watkins, R Mutch, et al Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia, http://bmjopen.bmj.com/content/8/2/e019605, accessed 20 June 2018.
S Brown and G Kelly, Issues and inequities facing people with acquired brain injury in the criminal justice system, report prepared for Victorian Coalition of ABI Service Providers Inc, September 2012.
L Byrnes, “Justice and intellectual disability” (1997) 22 Alternative Law Journal 243.
Committee on Intellectual Disability and the Criminal Justice System, “People with an Intellectual Disability — Giving Evidence in Court”, 2000, at www.justice.nsw.gov.au/justicepolicy/Documents/intellectualdisability2000.doc, accessed 9 September 2013.
Department of Family and Community Services NSW, Operational Performance Directorate, Ageing, Disability and Home Care, People with intellectual and other cognitive disability in the criminal justice system, Final 1.0, December 2012, at, accessed 2 September 2014.
Department of Family and Community Services NSW, National Disability Strategy: NSW Implementation Plan 2012–2014, at, accessed 2 September 2014.
L Dowse et al, People with mental health disorders and cognitive disabilities in the criminal justice system, report prepared for Brain Injury Association of NSW and Brain Injury Australia, April 2011, at www.biansw.org.au/images/stories/BIA_BIANSW_People_with_Mental_Health_Disorders_and_Cognitive_Disabilities_in_the_Criminal_Justice_System_Report.pdf, accessed 2 September 2014.
B Eddy, “High Conflict People in Legal Disputes”, High Conflict Institute Press, California, 4 ed, 2012.
M Edgely, “Solution-focused court programs for mentally impaired offenders: What works?” (2013) 22 JJA 207.
S Fazel and J Danesh, “Serious mental disorder in 23,000 prisoners: A systematic review of 62 surveys” (2002) 359 The Lancet 545, at www.thelancet.com/journals/lancet/article/PIIS0140-6736(02)07740-1/fulltext, accessed 10 September 2013.
Foundation for Alcohol Research & Education, The Australian Fetal Alcohol Spectrum Disorders Action Plan 2013-2016 at www.fare.org.au/wp-content/uploads/2011/07/FARE-FASD-Plan.pdf, accessed 12 May 2015.
T Gotsis and H Donnelly, Diverting mentally disordered offenders in the NSW Local Court, Research Monograph 31, Judicial Commission of NSW, Sydney, 2008, at www.judcom.nsw.gov.au/publications/research-monographs-1/monograph31/index.html, accessed 22 July 2014.
J Grierson, M Pitts and R Koelmeyer, HIV futures seven: the health and wellbeing of HIV positive people in Australia, Monograph Series No 88, Australian Research Centre in Sex, Health and Society, La Trobe University, May 2013, pp v–vii, at www.latrobe.edu.au/__data/assets/pdf_file/0007/546037/HIV-Futures-Seven-Report.pdf, accessed 8 April 2015.
Joint United Nations Programme on HIV/AIDS (UNAIDS), Judging the epidemic: a judicial handbook on HIV, human rights and the law, 2013, pp 9–13, 51, 125–140, at www.unaids.org/sites/default/files/media_asset/201305_Judging-epidemic_en_0.pdf, accessed 8 April 2015.
Judicial Commission of NSW, Civil Trials Bench Book, 2007–.
Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2nd edn, 2002–.
Judicial Commission of NSW, Sentencing Bench Book, 2006–.
The Hon M Kirby AC CMG, “HIV/AIDS — implications for law & the judiciary”, paper presented at Fiji Law Society 50th Anniversary Convention, 27 May 2006, Sigatoka, Fiji Islands, at www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_27may06a.pdf, accessed 23 April 2015.
The Kirby Institute, HIV, viral hepatitis and sexually transmissible infections in Australia, Annual Surveillance Report 2014, The Kirby Institute, University of NSW, 2014.
NSW Health, HIV, Factsheet, at www.health.nsw.gov.au/Infectious/factsheets/Pages/HIV_AIDS.aspx, accessed 7 April 2015.
D Puls and J Wong, HIV/AIDS sentencing kit, 3rd edn, HIV/AIDS Legal Centre NSW, 2004.
The Senate, Legal and Constitutional Affairs References Committee, Value of a justice reinvestment approach to criminal justice in Australia, June 2013.
C Townsend, J Hammill and P White, “Fetal Alcohol Disorder, disability and the criminal justice system” (2015) 8(17) Indigenous Law Bulletin 30.
Dealing with the media
M Karras et al, On the edge of justice: the legal needs of people with a mental illness in NSW, Law and Justice Foundation of NSW, Sydney, 2006 at www.lawfoundation.net.au/report/mental, accessed 10 September 2013.
Hunter Institute of Mental Health, Mental Illness & Suicide in the Media: A Mindframe Resource for Courts, Australian Government Department of Health and Ageing, 2008, at www.mindframe-media.info, accessed 11 July 2014.
NSW Law Reform, People with an Intellectual Disability and the Criminal Justice System (Report No 80), 1996, at www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/report_80.pdf, accessed 7 July 2014.
NSW Law Reform, Blind or Deaf Jurors, Report No 114, 2006, at www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/report_114.pdf, accessed 21 July 2014.
5.7 Your comments
We welcome your feedback on how we could improve the Bench Book.
We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.
In addition, you may discover errors, or wish to add further references to legislation, case law, specific sections of other Bench Books, discussion or research material.
Section 14 contains information about how to send us your feedback.
[1] Australian Bureau of Statistics (ABS) Survey, Disability, Ageing and Carers, 2015 (ABS Cat No 4430.0) 2015, at www.abs.gov.au/ausstats/abs@.nsf/mf/4430.0 under the heading “Disability – Key Findings”. Problem behaviour is a symptom of a disorder and may also be indicative of a problematic environment, for example, com.
[2] Unless otherwise indicated, the statistics in 5.1 are drawn from Australian Bureau of Statistics (ABS) Survey, Disability, Ageing and Carers, 2015 (ABS Cat No 4430.0) 2015, at www.abs.gov.au/ausstats/abs@.nsf/mf/4430.0, which includes the data cubes for tables in NSW (released 12 January 2017), accessed 20 September 2017.
[3] ibid.
[4] “Mental or behavioural disorders” is a phrase used in the ABS Survey Disability, Ageing and Carers data cube tables (NSW) from which these statistics are drawn — see n 1.
[5] The Kirby Institute, HIV, viral hepatitis and sexually transmissible infections in Australia, Annual Surveillance Report 2016, The Kirby Institute, University of NSW, 2016, p 118, Table 6.11.
[6] See Department of Health, The mental health of Australians 2: report on the 2007 national survey of mental health and wellbeing, 2009 at www.health.gov.au/internet/main/publishing.nsf/Content/A24556C814804A99CA257BF0001CAC45/$File/mhaust2.pdf, accessed 20 September 2017.
[7] An example of prose literacy is the ability to read a newspaper while document literacy includes the ability to use a train timetable: Australian Bureau of Statistics, Programme for the International Assessment of Adult Competencies, Australia, (ABS Cat. No 4228.0) 2011–12 at www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4228.0, accessed 20 September 2017.
[8] ibid.
[9] “Restrict” is the term used in the ABS Survey Disability, Ageing and Carers, from which these statistics are drawn — see n 1.
[10] For statistics concerning the impact of the National Disability Insurance Scheme (NDIS) for people with a disability in NSW: see https://www.ndis.gov.au/medias/documents/h3c/h01/8805637750814/nsw-Dashboard-30sep.pdf, accessed 23 November 2017.
[11] $428 for all people with reported disability in 2015 compared to $863 for no reported disability: ABS Survey Disability, Ageing and Carers, 2015, see n 1 above, Table 8.1 of the NSW data cube.
[12] Australian Council of Social Service, Poverty in Australia 2016, 5th ed (2016), report originally released in October 2012, p 29, accessed 22 September 2017.
[13] Drawn from P Saunders, Disability, poverty and hardship in Australia, presentation to the Social Policy Research Centre Seminar Program, 11 October 2005.
[14] https://data.cese.nsw.gov.au/data/dataset/year-12-estimated-completion-rates, accessed 26 September 2017.
[15] NSW Department of Education and Training, Statistical Bulletin; Schools and Students: 2015 Statistical Bulletin, at www.cese.nsw.gov.au/images/stories/PDF/2015_Statistical_Bulletin_v8.pdf, accessed 23 November 2017.
[16] NSW Ombudsman, Supporting people with an intellectual disability in the criminal justice system, Progress Report, 2008, p iv.
[17] D Indig, L Topp, B Ross, et al, 2009 NSW Inmate Health Survey: Key Findings Report, Justice Health, Sydney, 2010, p 16, at www.justicehealth.nsw.gov.au/about-us/publications/2009-ihs-report.pdf, accessed 16 July 2014.
[18] ibid, p 17. An earlier study of defendants in criminal proceedings in the NSW Local Court found over 50% of defendants surveyed reported receiving one or more blows to the head resulting in a dazed or confused state without losing consciousness, see C Jones and S Crawford, “The Psychosocial Needs of NSW Court Defendants” (2007) 108 Crime and Justice Bulletin 5.
[20] D T Kenny & P Nelson, Young offenders on community orders: Health, welfare and criminogenic needs, Sydney University Press, Sydney, 2008. D T Kenny “Young offenders with an intellectual disability in the criminal justice system” (2012) 24 JOB 35.
[21] Culture fair IQs are calculated using the Full Scale IQs of young offenders from an English-speaking background, and the Performance (non-verbal) IQs of Indigenous and CALD young offenders.
[22] Weschsler Abbreviated Scale of Intelligence (WASI) and Wechsler Individual Achievement Test-II Abbreviated (WIAT-II-A).
[23] L Dowse, et al People with Mental Health Disorders and Cognitive Disabilities in the Criminal Justice System: Impact of Acquired Brain Injury, April 2011 at www.biansw.org.au/images/stories/BIA_BIANSW_People_with_Mental_Health_Disorders_and_Cognitive_Disabilities_in_the_Criminal_Justice_System_Report.pdf, accessed 2 September 2014.
[24] See Appendix 3, Annual Report 2015–2016 of the Australian Human Rights Commission, at www.humanrights.gov.au/sites/default/files/document/publication/ahrc_annual_report_2015-16.pdf, accessed 26 September 2017. A breakdown of complaint statistics were not provided in the Annual Report 2016–2017, published 10 September 2017.
[26] NSW Disability Inclusion Action Plan 2015–2018 at www.justice.nsw.gov.au/diversityservices/Pages/divserv/ds_people_disab/ds_people_disab.aspx, accessed 23 November 2017.
[27] See information on different forms of dementia listed on Alzheimer’s Australia website, at www.fightdementia.org.au/, accessed 11 July 2014.
[28] The information in 5.2.2 is drawn from Disability awareness program — creating access to our courts, by kind permission of the National Judicial College of Australia and the NSW Department of Justice.
[29] D T Kenny, above n 18, p 35.
[30] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th edn, 2013, pp 257 and ff.
[31] Information in this section is sourced from J Grierson, M Pitts and R Koelmeyer, HIV futures seven: the health and wellbeing of HIV positive people in Australia, Monograph Series No 88, Australian Research Centre in Sex, Health and Society, La Trobe University, May 2013, pp v–vii, at www.latrobe.edu.au/__data/assets/pdf_file/0007/546037/HIV-Futures-Seven-Report.pdf, accessed 8 April 2015; Australian Federation of AIDS Organisations, HIV media guide, “The facts about HIV”, at www.hivmediaguide.org.au/facts-about-hiv, accessed 24 April 2015; NSW Health Factsheet, HIV, at www.health.nsw.gov.au/Infectious/factsheets/Pages/HIV_AIDS.aspx, accessed 7 April 2015; UNAIDS, Judging the epidemic: a judicial handbook on HIV, human rights and the law, 2013, pp 9–13, 51, 125–140, at www.unaids.org/sites/default/files/media_asset/201305_Judging-epidemic_en_0.pdf, accessed 8 April 2015.
[32] FASD is referred to as a physical brain-based condition by the National Organisation for Fetal Alcohol Spectrum Disorders (NOFASD) Australia, www.nofasd.org.au, accessed 3 September 2014. The status of FASD as a disability has been addressed in several reports. The House of Representatives, Standing Committee on Social Policy and Legal Affairs, FASD: The Hidden Harm — Inquiry into the prevention, diagnosis and management of Fetal Alcohol Spectrum Disorders, Nov 2012, recommended that the Commonwealth Government include FASD in the List of Recognised Disabilities (recommendation 18). Although support and services for FASD-affected children could be provided by including FASD in the List of Recognised Disabilities, and in the Better Start for Children with a Disability initiative (FaHCSIA 2013), it was noted that services are available according to the level of functional impairment and do not depend on a formal diagnosis of FASD: Australian Institute of Health and Welfare: MR Bonello, L Hilder and EA Sullivan, Fetal alcohol spectrum disorders: strategies to address information gaps, Cat no PER 67, 2014, p 1. A Commonwealth Action Plan to reduce the impact of fetal alcohol spectrum disorders (FASD) 2013-14 to 2016-17 has been drawn up by the Australian Government to reduce the incidence of FASD across Australia. See also Foundation for Alcohol Research & Education, The Australian Fetal Alcohol Spectrum Disorders Action Plan 2013-2016 at www.fare.org.au/wp-content/uploads/2011/07/FARE-FASD-Plan.pdf, accessed 12 May 2015.
[33] Advice from Professor Jane Latimer, The George Institute for Global Health, Australia, March 2015.
[34] The Senate, Legal and Constitutional Affairs References Committee, Value of a justice reinvestment approach to criminal justice in Australia, June 2013, pp 36–37.
[35] C Bower, R Watkins, R Mutch, et al Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia, BMJ Open 2018;8:e019605. doi: 10.1136/bmjopen-2017-019605.
[36] Hunter Institute of Mental Health, Mental Illness & Suicide in the Media: A Mindframe Resource for Courts, Australian Government Department of Health, 2008, at www.mindframe-media.info/__data/assets/pdf_file/0018/6048/Courts-Resource-Book.pdf, accessed 11 July 2014.
[37] The information in 5.2.3 is drawn from Disability awareness program — creating access to our courts, by kind permission of the National Judicial College of Australia and the NSW Department of Justice.
[38] See ss 4, 5 and 6 of the Disability Discrimination Act 1992 (Cth). Section 14 provides that the Act binds the Crown in right of each of the States.
[39] Disability Discrimination Act 1992 (Cth), s 9. No training organisations have yet been prescribed.
[40] See ss 59–60 of the Companion Animals Act 1998 (NSW). The Disability Discrimination Act 1992 (Cth) also makes it unlawful to discriminate against a person because they are accompanied by an assistance animal (s 9(2) and (4)), but s 54A provides that it is not unlawful for the discriminator to discriminate against the person with the disability on the ground of the disability if the discriminator reasonably suspects that the assistance animal has an infectious disease and the discrimination is reasonably necessary to protect public health or the health of other animals. Section 7A of the Court Security Act 2005 provides that a security officer may refuse a person entry to court premises or may require a person to leave the court premises if that person is in possession of an animal. However, s 7A does not apply to an assistance animal that is being used by a person with a disability.
[41] Evidence Act 1995 (NSW), s 13.
[42] See for example, s 31 of the Evidence Act 1995 (NSW), in relation to deaf and mute witnesses and Pt 6 of the Criminal Procedure Act 1986 (NSW), in relation to the giving of evidence by vulnerable persons. A vulnerable person is defined to mean a child or a cognitively impaired person.
[43] Evidence Act 1995 (NSW), s 13(4)–(5).
[44] M Kebbell et al, “Witnesses with intellectual disabilities in court: What questions are asked and what influence do they have?” (2004) 9 Legal and Criminological Psychology 23 at 24.
[45] Judicial Commission of NSW, Criminal Trial Courts Bench Book, Sydney, 2002–, at www.judcom.nsw.gov.au/publications/benchbks/criminal/unfitness.html, [4–300] and [4-325], accessed 21 July 2014. See also D Howard and A Johnson, “Procedure for fitness to be tried and mental illness cases in the Criminal Trial Courts bench Book” (2015) 27 Judicial Officers’ Bulletin 15.
[46] Judicial Commission of NSW, Local Court Bench Book, Sydney, 1988–, at www.judcom.nsw.gov.au/publications/benchbks/local/mental_health_and_cognitive_impairment_forensic_provisions.html, [30-000], accessed 21 July 2014. See also T Gotsis, H Donnelly “Diverting mentally disordered offenders in the NSW Local Court”, Research Monograph 31, Judicial Commission of NSW, Sydney, 2008.
[47] Crimes Act 1900 (NSW), s 23A. See also Judicial Commission of NSW, Criminal Trial Courts Bench Book at [6-100].
[51] For some examples of adjustments see NSW Law Reform Commission, Blind or Deaf Jurors, Report No 114, 2006, at www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/report_114.pdf, accessed 21 July 2014; and, ss 30 and 31 of the Evidence Act 1995 (NSW) which provide for interpreters and for appropriate allowance to be made for deaf and mute witnesses.
[52] See the Department of Justice website page “People with Disabilities” at www.lawlink.nsw.gov.au/Lawlink/Corporate/ll_corporate.nsf/pages/attorney_generals_department_supporting_disabilities, accessed 21 July 2014, which provides information about how to get one.
[53] ibid.
[54] Auslan interpreters can be booked via the Deaf Society of NSW or Multicultural NSW — see 5.5 for contact details. For criminal matters, courts have a contract with the CRC to provide Auslan interpreters free of charge. The JCDI Resource, Recommended national standards for working with interpreters in courts and tribunals, provides helpful advice for working with interpreters including Auslan interpreters.
[55] Section 306ZK of the Criminal Procedure Act 1986 (NSW) provides that vulnerable persons have a right to choose a support person of their own choice, and that that person may act as an interpreter by assisting them to give their evidence. A vulnerable person is defined in s 306M as a child or a cognitively impaired person.
[56] See ss 59–60 of the Companion Animals Act 1998 (NSW) and s 54A of the Disability Discrimination Act 1992 (Cth) — see n 40.
[57] For information provided by the Department of Justice to support vulnerable persons (including people with disabilities) about going to court and the role of a support person, see www.victimsservices.lawlink.nsw.gov.au/vss/vs_specificneeds1.html, accessed 21 July 2014. Note that the Criminal Justice Support Network (CJSN) of the Intellectual Disability Rights Service (IDRS) provides and advises support people for people with an intellectual disability who are witnesses or defendants in a criminal matter — see 5.5 and resources at www.idrs.org.au/home/index.php#sthash.x7f7OVst.OBcCOiqv.dpbs, accessed 21 July 2014.
[58] See Guidelines for Remote Witness Facilities (revised and reissued in 2014) at www.victimsservices.lawlink.nsw.gov.au/vss/vs_service_providers/vs_remote_guidelines.html?s=1001, accessed 21 July 2014.
[59] For more information about different formats that may be needed, see Judicial Commission of NSW, Disabilities information, 2001, at https://jirs.judcom.nsw.gov.au/services/disabilities_information.pdf, accessed 21 July 2014; the Disabilities information was adapted from ACCESSLink — A Guide to Flexible Service Delivery, published by the Disability Unit of the then NSW Attorney General’s Department in 2001; or the NSW Department of Justice internal “infolink” website and the “ACCESSLink” menu.
[60] Much of the information in 5.4.3 is drawn from Disability awareness program — creating access to our courts, by kind permission of the National Judicial College of Australia and the NSW Department of Justice; and Judicial Commission of NSW, Disabilities information, 2001, ibid.
[61] In relation to witnesses who are deaf or mute see also s 31 of the Evidence Act 1995 (NSW).
[62] For information provided by the Department of Justice for people with cognitive disabilities who have to go to court, see 5.5; n 57.
[63] Note that pursuant to s 41 of the Evidence Act 1995 (NSW) improper questions must be disallowed (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive questions). The section (s 41(2)(b)) specifically refers to the need to take account of the witness’s “mental, intellectual or physical disability”. Sections 26 and 29(1) of the Evidence Act 1995 provides for the court’s control over the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows for the exclusion of any evidence that is misleading or confusing.
[64] The Deaf Society of NSW maintains a website with legal information in Auslan for people who are deaf or hearing impaired, including information on going to court. See http://deafsocietynsw.org.au/auslan_resources/page/legal, accessed 21July 2014.
[66] For information provided by the Department of Justice for people with cognitive disabilities who have to go to court: see 5.5 n 44..
[67] See Evidence Act 1995 (NSW), s 29 and NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Report No 80), see n 12.
[72] A court may make orders under its inherent jurisdiction: Court Suppression and Non-publications Orders Act 2010, s 8; Civil and Administrative Tribunal Act 2013, s 64. See Judicial Commission of NSW, Criminal Trial Courts Bench Book, above n 41, “Closed court, suppression and non-publication orders” at [1-349] and Judicial Commission of NSW, Civil Trials Bench Book, 2007–, “Closed court, suppression and non-publication orders” at [1-0400]. See also www.afao.org.au/library/hiv-australia/volume-8/number-4/HIV-disclosure-in-court#.VUbCz5N3Dqo, accessed 4 May 2015.
[73] Judicial Commission of NSW, Criminal Trial Courts Bench Book, see n 57.
[74] Judicial Commission of NSW, Local Court Bench Book, see n 46.
[75] See www.avert.org/hiv-aids-stigma-and-discrimination.htm, accessed 8 April 2015. See also The Hon M Kirby AC CMG, “HIV/AIDS — implications for law & the judiciary”, paper presented at Fiji Law Society 50th Anniversary Convention, 27 May 2006, Sigatoka, Fiji Islands, at www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_27may06a.pdf, accessed 23 April 2015.
[76] See also Judicial Commission of NSW, Sentencing Bench Book, Sydney, 2006–, particularly the commentary on the Mental Health (Forensic Provisions) Act 1990 (NSW) at [90-000]ff, at https://jirs.judcom.nsw.gov.au/benchbks/sentencing/mental_health.html, accessed 22 July 2014. Further, in relation to people with psychiatric and/or intellectual disabilities, see S Traynor, “Sentencing mentally disordered offenders: the causal link” (2002) 23 Sentencing Trends and Issues, Judicial Commission of NSW, Sydney; T Gotsis, H Donnelly “Diverting mentally disordered offenders in the NSW Local Court”, Research Monograph 31, Judicial Commission of NSW, Sydney, 2008; Veen (No 2) v The Queen (1988) 164 CLR 465; R v Engert (1995) 84 A Crim R 67 at 69; R v Israil [2002] NSWCCA 255 at [18]–[27].
[77] See Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Charter of Victims Rights (at Pt 2, Div 2 of the Victims Rights and Support Act 2013), which allows the victim access to information and assistance for the preparation of any such statement.
[78] Judicial Commission of NSW, Sentencing Bench Book, 2006–, “Subjective matters taken into account (cf s 21A(1))”, at [10-450]. R v Smith (1987) 44 SASR 587; R v Penalosa-Munoz (2004) 143 A Crim R 594 at [14].
[79] D Puls and J Wong, HIV/AIDS sentencing kit, 3rd edn, HIV/AIDS Legal Centre NSW, 2004, pp 12–14.