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Access to justice and legal needs. Stage 1: public consultations  ( 2003 )  Cite this report

Ch 1. Who is disadvantaged in seeking access to justice?



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People with disabilities


People with an intellectual disability

1.6 Several submissions referred to the disadvantage faced by people with intellectual disabilities in the legal system, emphasising their over-representation within the criminal justice system (and particularly within the prison system) as cause for particular concern.

1.7 The Framework Report,3 prepared by the Intellectual Disability Rights Service and NSW Council for Intellectual Disability has highlighted many of the issues faced by people with intellectual disability within the criminal justice system.

People with intellectual disabilities face a wide range of legal problems, especially including:

– Problems with the criminal justice system as alleged offenders, victims and witnesses.

– Problems reflecting their vulnerability, physical mistreatment, financial exploitation, and inappropriate decisions being made on their behalf.4

In our society, many people automatically link people who have an intellectual disability with criminal activity. A number of explanations for this have been identified:

  • The person with an intellectual disability may be more easily caught in the act or left “holding the bag”.
  • The person with an intellectual disability may be susceptible to being exploited as an accomplice by others.
  • Intellectual disability may be associated with other organic disorders that result in impulsive and unpredictable behaviour.
  • The harmless intentions of the person with an intellectual disability may be misunderstood.
  • The person with an intellectual disability may express sexuality in ways regarded as naïve and socially unacceptable.
  • The person with a moderate intellectual disability may be goaded by others into an uncharacteristic act of violence.
  • Some people with an intellectual disability have behaviour disorders associated with aggressive behaviour.
  • The person may be vulnerable to pressure to "confess" to a suspected crime.

The person may be less able to explain apparently incriminating circumstances satisfactorily.5

1.8 The prevalence of people with an intellectual disability as victims of crime, or as witnesses to crime, was noted:


    People with an intellectual disability are more likely to be victims of crime than other members of society.6

    Women with intellectual disability and mental illness are particularly susceptible to sexual assault.7

    People with an intellectual disability may come into contact with the criminal justice system as either offenders, victims of crime or witnesses to crime. In each case, issues of identification and communication are of primary significance.8


1.9 Submissions also identified negative community attitudes as a significant barrier confronting people with intellectual disabilities in accessing legal redress.

    People with intellectual disabilities may be seen as inherently criminal or unreliable in what they say rather than being treated on their merits. They are often treated as lesser people with lesser rights.9

This will be dealt with more fully in subsequent chapters.

1.10 Other issues identified for people with intellectual disabilities included:

  • a greater likelihood of parents with intellectual disabilities having their children removed by court order10
  • over-representation of young people with intellectual disabilities in the care and juvenile justice systems and who need expert assistance.11

People with a physical disability

1.11 The Background Paper identified accessibility, finance and discrimination as key legal issues for people with physical disabilities. One submission stated that people with chronic ill health, people on life support equipment and people in electric wheelchairs often have high-energy needs, and this may increase the likelihood of conflict with energy service providers.12

People with sensory disabilities

1.12 Submissions endorsed the issues identified in the Background Paper regarding people with a range of sensory disabilities.13 These were:

  • discrimination
  • social security problems
  • accessibility of appropriate information and legal interpreter services.

People with psychiatric disabilities

1.13 Several submissions noted that people with mental illness and psychiatric disabilities face similar issues of over-representation within the criminal justice system as people with intellectual disabilities, whether offenders/suspects or victims.14 In terms of being over-represented as victims of crime, the Executive Officer of People with Disabilities, Philip French stated:

I think most people would appreciate that people with disability are, to a much higher degree than many other population groups, victims of crime. That’s often because they are in situations that are dangerous and violent. For example, for the population of homeless people in some parts of Sydney, approximately 80% are people with disability, people with mental illness, brain injury and so forth. The street culture is pretty violent and people with disability get beaten up very often in those environments.15

1.14 Consultation participants also reported that self-represented litigants with mental illnesses sometimes constitute obsessive litigants, initiating litigation concerning psychosis-related delusions. This can consume significant court time and resources.16

1.15 Young people with mental illnesses were reported as being over-represented in the care and juvenile justice systems.17

People with an acquired disability

1.16 Submissions and roundtable participants identified that many people suffering from certain acquired disabilities, particularly those relating to some form of substance abuse (e.g. drug addiction) or caused by substance abuse (e.g. alcohol related brain damage) can face criminal, discrimination and also social security issues. Despite this, they are often perceived as being part of the ‘undeserving disadvantaged’.18

1.17 Young people with drug and alcohol problems were reported as being over-represented in the care and juvenile justice systems, and in need of expert assistance.19



Simpson, J., Martin, M. and Green, J., The Framework report Appropriate Community Services in NSW for Offenders with Intellectual Disabilities and those at risk of offending, NSW Council for Intellectual Disability, July 2001, referred to in the roundtable with community and non-government organisations, 16 October 2002.
Submission from New South Wales Council for Intellectual Disability.
Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
Ibid.
French, P., Access to Justice for People with Disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
Submission from New South Wales Council for Intellectual Disability.
NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files/inquiryreportchap3.pdf, referred to in the submission from the NSW Commission for Children and Young People.
Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
Submission from Energy and Water Ombudsman NSW.
Submission from People with Disabilities.
Submission from People with Disabilities, Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
French, P., Access to Justice for People with Disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
Submission from Youth Justice Coalition.

 Simpson, J., Martin, M. and Green, J., The Framework report Appropriate Community Services in NSW for Offenders with Intellectual Disabilities and those at risk of offending, NSW Council for Intellectual Disability, July 2001, referred to in the roundtable with community and non-government organisations, 16 October 2002.
 Submission from New South Wales Council for Intellectual Disability.
 Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
 Ibid.
 French, P., Access to Justice for People with Disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
 Submission from New South Wales Council for Intellectual Disability.
10  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files/inquiryreportchap3.pdf, referred to in the submission from the NSW Commission for Children and Young People.
11  Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
12  Submission from Energy and Water Ombudsman NSW.
13  Submission from People with Disabilities.
14  Submission from People with Disabilities, Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
15  French, P., Access to Justice for People with Disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
16  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
17  Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
18  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
19  Submission from Youth Justice Coalition.


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Schetzer, L. & Henderson, J 2003, Public consultations: a project to identify legal needs, pathways and barriers for disadvantaged people in NSW, Access to justice and legal needs vol. 1, Law and Justice Foundation of NSW, Sydney