THE COMMISSION’S REFERENCE

The terms of reference

1.1 On 30 September 1991 the Commission received the following reference from the then Attorney General, the Hon P E J Collins QC, pursuant to s 10 of the Law Reform Commission Act 1967 (NSW):

To inquire into and review the law and practice relating to the treatment of the intellectually disabled in the criminal justice system and matters incidental thereto; and in particular, without affecting the generality of the foregoing, to consider -

(a) whether there should be a new uniform statutory definition of “intellectual disability”;

(b) whether, and to what extent, the intellectually disabled should be diverted from the criminal justice system, including consideration of the custodial and non-custodial alternatives to the sentencing and detention of the intellectually disabled;

(c) the treatment of intellectually disabled persons in police custody and in prison;

(d) the release from custody into the community of intellectually disabled persons considered dangerous;

(e) whether specialist units should be established within the Office of the Director of Public Prosecutions, the Legal Aid Commission, the [Department of] Corrective Services, the Police Service and other related bodies, to deal with the intellectually disabled; and

(f) in so far as the law and practice relating to the treatment of the intellectually disabled is relevant to the treatment of the mentally ill in the criminal justice system, whether any recommendations should also be made in relation to the mentally ill.¹

The scope of the reference

1.2 The scope of this reference is extremely broad. The Commission believes that a review of the law and practice relating to the treatment, in a general rather than a medical sense, of people with an intellectual disability in the criminal justice system requires an analysis of each stage of the process as it affects an individual, namely:

• the commission of a “crime”;
• contact with the police (whether as a suspect, victim or witness), including arrest, detention, interrogation and investigation, and the decision to charge with a crime or divert from the system;
• preparation for, and appearances at, court (whether as an accused or witness), including issues of fitness to plead, competence to give evidence, and ability to instruct legal counsel;
• the application of certain defences, such as diminished responsibility, provocation and mental illness, to people with an intellectual disability;
• sentencing principles and options, including non-custodial alternatives; and
• prison conditions, release and post-release programs.

The conduct of the reference to date

1.3 Owing to the breadth of the reference and the number of interest groups and people it would wish to consult, the Commission decided that it should distribute the terms of reference, seek a preliminary response and release an Issues Paper before preparing a Discussion Paper and formulating specific proposals for reform.

1.4 The Commission incorporated the comments made in preliminary meetings, interviews, written submissions and telephone calls with its own research in its Issues Paper, which was released in June 1992.² It was designed to promote discussion and seek information and views about the issues raised. Over 1,000 copies of the Issues Paper were distributed. There has been considerable public and media interest in this reference and the Commission has received a large number of written and oral submissions. The Commission has also consulted with a variety of groups and individuals involved in the criminal justice system and in providing services for people with an intellectual disability. These submissions and comments are being used in the preparation of a more detailed Discussion Paper (to be released in the first half of 1993). The Discussion Paper will contain further information and proposals for reform.

THE BACKGROUND TO THE CONSULTATIONS

Why necessary?

1.5 There has been a number of reports and research projects undertaken in the area of intellectual disability and the criminal justice system. Many of the more wide-ranging research projects, such as the four papers prepared by the Victorian Office of the Public Advocate³ and the South Australian Bright Committee Report⁴, have emphasised the importance of the consultative process to the preparation of their reports. For example, the Bright Committee not only received submissions and undertook research but also held seminars, met parents and service providers, visited hostels and institutions and talked to people with an intellectual disability. The Disability Advisory Council of Australia also undertook a wide-ranging consultation process, involving people with differing disabilities, in relation to the new disability discrimination legislation which was published as a separate report.⁵

1.6 Other agencies place a high level of importance on the consultation process; for example, the Department of Community Services in New South Wales is preparing its own “Consultation Protocol” to provide guidelines for appropriate and comprehensive consultations, when changes affecting people, including people with disabilities, are to be made. The New South Wales Government’s Statement of Principles for People with Disabilities and their Families in NSW also supports consultation, stating that government departments and state-funded non-government agencies, who provide services for people with disabilities and their families, should provide choice for people. This includes involvement in the planning, management and evaluation of disability services. Similar support for the participation of people with disabilities in the decisions which affect their lives are found at the Commonwealth level.⁶

1.7 The importance of consulting with people with an intellectual disability themselves as to their concerns and experiences in the criminal justice system has also been one of the issues raised in submissions to the Commission. The Commission believes that it could not prepare a comprehensive report if it merely read the existing literature on the subject and consulted with academics, government departments and other service providers, though their comments are of course important. The Commission is able to consult widely and encourage public debate on the areas under consideration and considers this to be a crucial part of the reform process. The types of consultations will, of course, depend upon the nature of the reference, and some references will only be relevant to particular community groups. The Commission always invites submissions from the public or interested parties and is flexible in the way it seeks and receives submissions, taking into account the difficulties faced by its target groups. The Commission accepts letters, faxes, and telephone calls; it also visits people to take personal submissions and talks to groups.

Access and communication issues

1.8 For this reference, however, the Commission believed that its usual means of consultation and obtaining submissions or comments may be difficult or inaccessible for many people with an intellectual disability. The Commission has tried to overcome this difficulty for some members of the community through the release of more accessible preliminary Issues Papers using a less “legalistic” form of language and by the flexible approach to receiving submissions referred to above. Due to the literacy levels of many people with an intellectual disability, however, seeking only written submissions for the Commission’s reference would be inappropriate in any event. Nor are the majority of people with an intellectual disability sufficiently literate to read the Issues Paper or advertising material about it and make telephone or oral submissions in the usual way.

1.9 The Commission therefore needed to consider how it could make its work more accessible to its target audience, which in this case was much broader than lawyers or those familiar with the law reform process. One alternative suggested was to rewrite the Issues Paper in simpler language. Such an exercise, however, would be slow and expensive and still would only reach people who could read. It might also over-simplify some of the difficult issues involved. Making people aware of the Paper’s existence would also be problematic. People unfamiliar with the Commission and the law reform process are often intimidated by the idea of making a “submission”, whether oral or written, and are unclear about what may be involved.

1.10 The submission process may be particularly difficult for people with an intellectual disability, whose communication skills, such as reading, writing, speaking, comprehending and listening, may be impaired in some ways, depending on the severity of the disability. People with severe or profound disabilities may have extremely limited or non-existent spoken language skills. People with a less severe intellectual disability also may have other, and lesser, communication difficulties, including a limited vocabulary, a short attention span, difficulty understanding abstract concepts and interpreting information in a very literal manner.⁷ Some people with an intellectual disability also experience special difficulties with speech for a variety of reasons. This can lead to extreme frustration and result in a loss of self esteem for the person involved. People from non-English speaking backgrounds with an intellectual disability may find communication doubly difficult. Communication difficulties, of course, vary from individual to individual and do not usually prevent people from living full and happy lives in the community. Such difficulties, however, can create misleading or mixed messages and can disadvantage them in their daily life. Other people, particularly those who do not know the person well, may believe they have understood the person properly when in fact this may not be the case.

1.11 Communication difficulties are not the only barrier. Some people with an intellectual disability seek to disguise their disability:

often motivated by feelings of shame, embarrassment, fear, or because in the past it has been the cause of what they perceive as ‘trouble’.⁸

They may therefore not wish to let people know that they have a disability or that they are having difficulty communicating or comprehending. People with an intellectual disability may also have been institutionalised or have had limited access to relevant social or other information. They may have low self esteem as a result of their experiences and believe that their comments or experiences will not be believed or be seen as worthless.

Implications of communication and other difficulties

1.12 These difficulties are likely to be exacerbated within the criminal justice system where communication breakdowns, for example between the police and the person with an intellectual disability or the person and his or her lawyer, are likely to have more serious consequences. Lack of education and problems arising from institutionalisation may add to the person’s difficulty in making themselves understood.

1.13 These difficulties also have implications for the Commission’s attempts to reach people with an intellectual disability and seek their ideas. Even seeking oral submissions may be more difficult due to some of the speech difficulties referred to above. The Commission therefore decided to seek professional assistance to overcome some of these barriers to be able to consult as widely as possible and to include people who would otherwise not have had a chance to be heard. It decided it should adopt more appropriate and effective approaches in order to seek ideas from people with less familiarity with the law reform process and/or with communication and other difficulties.

Strategies

1.14 There are practical strategies which may improve the accuracy of communication with people with an intellectual disability. For example, in an interview situation these can include: scheduling extra time for the interview, providing reassurance for the person and encouraging the person being interviewed to ask questions. Taking frequent breaks and using simple language and open-ended questions can also assist, as can asking the person being interviewed to explain the content of the interview back to the interviewer.⁹ These and other educational strategies emphasise accessible presentation of information and appropriate questioning. The strategies are referred to in more detail in Chapter 2.

1.15 The Commission decided to use such strategies and set up a series of small group consultations with people with an intellectual disability, conducted with the assistance of a consultant familiar with the language and other communication difficulties experienced by some members of this group of people. The purpose of this was to attempt to overcome some of the communication and other difficulties discussed above, and to discuss the issues involved in the Commission’s reference in a structured, non-threatening and appropriate way. It was also important for the Commission to gain an insight into the general level of understanding about the criminal justice process and their awareness of the availability of resources. Such an insight was necessary in order to allow the Commission to develop proposals for reform that are accessible, workable and comprehensible by the people they are designed to assist.

1.16 An application for funding was made to the Law Foundation of New South Wales, which was granted. The Commission ran the consultation program, using the additional funding to cover the cost of the external consultants, conducting the sessions, including payments to the participants, transport and room hire, and report costs. The Commission acknowledges the financial support of the Law Foundation which made this study possible.

The purpose of this Report

1.17 The Commission noted the usefulness of separate publication of such consultations to assist other researchers in this area, as was done by the Disability Advisory Council of Australia in its Report of the National Consultations with People with a Disability (1991). Accordingly, the decision was made to publish this as a separate document in the hope that the methods used and comments made will be of assistance beyond the limits of the Commission’s reference. The session outline (see Appendix A) may also be useful to service providers or other organisations involved in educational programs or consultations with people with an intellectual disability.

1.18 The usefulness of these consultations to the Commission is not, however, limited to this Research Report. Comments made will also be considered in the context of other submissions in the Commission's forthcoming Discussion Paper. The Discussion Paper will consider the implications of the comments made to the Commission through this study against other research in this area and include the participants' suggestions for change in its proposals for reform. This Research Report does not contain the Commission’s proposals for reform but presents, largely without comment at this stage, the participants’ own suggestions. Apart from this study the Commission also has attempted to contact people with an intellectual disability individually to seek their submissions, especially in cases where a group discussion would be inappropriate. The Commission still seeks further submissions from people with an intellectual disability, their relatives, service providers, police, lawyers or other persons involved in the criminal justice system, about their experiences in, or suggestions for reform of, the criminal justice system.

HOW TO MAKE A SUBMISSION OR COMMENT

1.19 If you want to make a submission or comment about this Research Report or generally about people with an intellectual disability and the criminal justice system, the Commission would like to hear from you before 30 June 1993. You can do so in any of the following ways:

Make a written submission by writing to:

Mr Peter Hennessy
Executive Director
NSW Law Reform Commission
GPO Box 5199
SYDNEY NSW 2001

[DX 1227 SYDNEY]

FAX: (02) 247 1054

Telephone the Commission on (02) 252 3855 and ask to speak to a Legal Officer to make your comments by telephone.

Telephone or write to the Commission to arrange to make a submission in person.

If you need an interpreter or have some other difficulty of communication or transport, please arrange for someone to telephone the Commission and we will attempt to make suitable arrangements.

What should a submission contain?

1.20 There is no special form or restriction on what can be said in a submission: we are interested to hear any comments, from any source, about the position of people with an intellectual disability and their interaction with any part of the criminal justice system, whether as offenders, suspects, victims or witnesses. Areas of particular concern are: definitions of intellectual disability, the role of the police and lawyers, the courts, and sentencing alternatives for people with an intellectual disability.

Use of submissions and confidentiality

1.21 Submissions made to the Commission may be used in two ways:

• Since the Commission uses an open, public process to achieve law reform, copies of submissions made to the Commission will normally be made available on request to any person or organisation. However, if you would like all or part of your submission or comment to be treated as confidential, please indicate this clearly in your submission or comments. Any request for a copy of a submission marked “confidential” will be determined in accordance with the Freedom of Information Act 1989 (NSW).
• In preparing the Discussion Paper and the final Report, the Commission may find it useful to refer to and make mention of comments submitted in response to this and other Papers issued by the Commission. However, if a request for confidentiality is made, it will be respected by the Commission in relation to the publication of such submissions in the Discussion Paper or Report.

FOOTNOTES

1. A number of submissions have suggested that the use of terms such as “the intellectually disabled” is not appropriate. The Commission has therefore referred wherever possible in its Papers to “people with an intellectual disability”.

2. New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System (IP 8, 1992). Copies of the Paper can be obtained free of charge from the Commission.

3. Victoria. Office of the Public Advocate Finding the Way: the Criminal Justice System and the Person with Intellectual Disability (Melbourne, 1987); L M Osman Finding New Ways: A Review of Services to the Person with Intellectual Disability in the Victorian Criminal Justice System (Office of the Public Advocate, Melbourne, 1988); D Feben The Right to be Heard - Obtaining Evidence From Intellectually Disabled People (Discussion Paper, Office of the Public Advocate, Melbourne, 1988); K Johnson, R Andrew and V Topp Silent Victims: A Study of People with Intellectual Disabilities as Victims of Crime (Office of the Public Advocate, Melbourne, 1988).

4. Committee on Rights of Persons with Handicaps The Law and Persons with Handicaps: Vol 2 - Intellectual Handicaps (March 1981).

5. Disability Advisory Council of Australia Report of the National Consultations with People with a Disability (1991). The Disability Discrimination Act 1992 (Cth) was passed by Parliament in October 1992 and the operative provisions commence in March 1993.

6. See for example Principle 5 of the Disability Services Act 1986 (Cth): “People with disabilities have the same right as other members of Australian society to participate in the decisions which affect their lives.” The National Working Group on Consumer Rights’ report Strategy for Consumer Rights and Responsibilities for People with Disabilities (Office of Disability, Canberra, 1992) made a number of relevant recommendations pursuant to these principles, including Recommendation 32: “Adequate provision be made for consumer participation in the planning, development and review processes to ensure that the rights of consumers are achieved in all services covered by the Commonwealth/State Disability Agreements”.

7. M Scannell “Acting for a Client with Intellectual Disability: How to Provide a Better Service”, paper presented at the National Community Legal Centres Conference (Canberra, 1992) at 5.

8. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Redfern, 1989) at 7.

9. Scannell at 6.