Australasian Law Reform Agencies
Conference 2016
‘The Role and Experience of
Consultation in South Australia’s
Disability Justice Plan and
Statutes Amendment (Vulnerable
Witnesses)Act 2015’
Dr David Plater, SA Attorney-General’s Department
Assumptions
Assumptions
‘People
with
communication
an
intellectual
difficulty are
disability
or
often seen as
unreliable witnesses in the adversarial court
system. As a result, many alleged abuse cases are
dropped before they even make it to trial.’
Nance Haxton
ABC Radio News, 11 January 2012
‘suggestible, fanciful and even deceitful’
Until recently children and
people with intellectual
disability were regarded
as inherently unreliable
witnesses; suggestible,
fanciful and even
deceitful when giving
testimony.
Assumptions
Not fair game for potential abusers
‘People with disabilities, children in particular, are
at least seven times more likely to experience
some form of physical or sexual abuse throughout
their lifetime.’
Hon Kelly Vincent MLC,
11 January 2012
Problems in and beyond cross
examination
‘The abuse many children suffer is compounded
by the abuse perpetrated by the legal system
itself…
The contest between lawyer and child is an
inherently unequal one.’
Australian Law Reform Commission,
Seen and Heard: Priority for Children in the Legal Process (Report no 84)
Problems in and beyond cross
examination
This problem is not confined to cross-examination by
defence counsel. Many investigators, lawyers and
judicial officers are not trained in effective talking to
children or persons with an intellectual disability and
may lack the necessary language, sensitivity and skills to
elicit a coherent account from the vulnerable witness,
whether in or out of court.
See, eg, Terese Henning, ‘Obtaining the best evidence from children and witnesses with
cognitive impairments – “plus ça change” or prospects new?’ (2013) 33 Criminal Law Journal 155
Capability
Research consistently suggests that both children
and people with intellectual disability/cognitive
impairment are as capable and truthful as any other
witness given the right kind of support and asked the
right questions. This premise is inherent in the
Vulnerable Witnesses Act.
Strong Voices Report – Rec 19
 Prioritise investigation and timely prosecution of
crimes against people with disability
 More effort on prosecution of matters where a
person with disability is an alleged victim
 Increased support for vulnerable witnesses,
particularly child (Hon John Rau MP)
Comprehensive change
‘Any change must be fair and
comprehensive and look at
legislative, cultural, operational
and training implications. There is
no magic bullet.’
John Brayley, Former SA Public Advocate
The Importance of Consultation
to the Disability Justice Plan
‘Effective community consultation is one of the
most important, difficult and time consuming
activities of [ law reform]…community
participation has two major purposes: to gain
responses and feedback and to promote a sense
of public ‘ownership’ over the process of law
reform … consultation often brings an issue to the
attention of the public and creates an
expectation that the government will do
something about the matter ..’
Neil Rees, ‘THE BIRTH AND REBIRTH OF LAW REFORM AGENCIES’, Australasian
Law Reform Agencies Conference 2008, Vanuatu, 10-12 September 2008
Vulnerable Witnesses Act
The Plan supports the implementation of
previously announced major changes to the
Evidence Act 1929 to improve the way that the
criminal justice system responds to vulnerable
parties. Despite previous reforms, it is clear more
needs to be done to support vulnerable parties
within the justice system, both in and out of court.
Hon John Rau MP
Vulnerable Witnesses Act
‘The Bill preserves an accused person's right to a
fair trial, whilst recognising that the South
Australian criminal justice system needs to be
more accessible and responsive to the needs and
interests of victims and witnesses who are children
and persons with disability. The Bill builds on
previous legislative reforms and the wider
Disability Justice Plan.’
Hon John Rau MP
Fair Balance
‘The overall aim of these
•
any reforms need to be
focused on creating a
model within the
adversarial criminal
justice system
•
the new Act is all about
creating a fair balance
between the interests of
all parties both in and
out of court.
changes should be to
balance the legitimate
interests of these
vulnerable witnesses
with the right of the
accused to receive a
fair trial.’
John Rau MP
Disability Justice Plan Steering Group
Strategic Policy and Organisational Performance, AGD (Chair)
Legislative Services (AGD)
Courts Administration Authority
South Australia Police
Director of Public Prosecutions
Department for Correctional Services
Public Advocate
Health and Community Services Complaints Commissioner
Equal Opportunity Commissioner
Department for Communities and Social Inclusion
Department for Education and Child Development
Commissioner for Victims’ Rights
Legal Services Commission
Health SA
Principal Community Visitor
Consultation Approach
• www.saplan.org.au/yoursay
• public meetings
• online and hardcopy submissions
• a phone line
• information in easy-read English
• Auslan video
• mail-out to disability organisations
• meetings with disability organisations
• one-on-one meetings
Consultation Approach
Consultation Approach: the Need to be Inclusive
1. More than 120 people in five public
meetings, including three in regional
areas
2. Close engagement with disability sector
3. 28 formal submissions
4. 50 completed online surveys
5. Broad range of meetings with
community orgs and individuals,
including people in secure care.
Consultation Feedback: Both within
and without Government
•
•
•
•
•
•
•
•
•
•
A need for better communication between all parties involved
in the legal process
Communication supports for people with intellectual disability or
other complex communication needs
People with disability are not considered to be credible
witnesses or good story tellers
Rights awareness among people with disability
A need for advocates/independent third persons to be involved
in police interviews and the court process
A need for training at all levels including, judges, police
investigators and lawyers
A need to consider mandatory reporting for vulnerable adults
A need for the timely resolution of cases involving vulnerable
victims
The right for people with disability to be able to participate in
jury duty
Case management and a central point of call to access
information.
Assumptions
90-Day Project
Ruth Ambler (Chair), (AGD)
Brenton Illingworth, ODPP
Stephen Brock, AGD
Jenn Buckler, Families SA
Margie Charlesworth, Women with Disabilities SA
Maurice Corcoran, Principal Community Visitor
Emma Ferguson, AGD
Sue Lock and Charmaine Peters, SAPOL
Sarah Philpott, Courts Administration Authority
David Plater/Amelia Cairney, AGD
Robbi Williams, Julia Farr
Assumptions
Disability Justice Plan Advisory Group

Public Advocate (Chair)

Strategy and Reform Division (AGD)

Legislative Services (AGD)

Courts Administration Authority

South Australia Police

Department for Correctional Services

Disability SA (DCSI)

Robbi Williams, CEO, Purple Orange

Nahtanha Davey, CEO, Brain Injury Network SA (BINSA)

Margie Charlesworth, Women with Disabilities SA (WWDSA)

Silvana Gant, community representative with lived experience of intellectual disability
New Sexual Exploitation Offence:
Balancing Protection and Paternalism
s 51 Criminal Law Consolidation Act 1935
Sexual exploitation of person with a cognitive impairment
From 30 March 2015, it became an offence for a service
provider:
•
to obtain sexual intercourse or indecent contact with a
person with a cognitive impairment through undue
influence; or to behave in an indecent manner in the
presence of a person with a cognitive impairment without
consent or obtaining that consent by undue influence.
•
Drew on close consultation with disability sector and the
need to find the elusive balance between protection and
paternalism. Emphasis on the exercise of undue influence,
notably by those in position of power or authority.
Evidence Act 1929 Amendments

Minimise the number of times vulnerable witnesses have to
recount their experiences,

Increase support for vulnerable parties in and out of court,

Address vexatious and inappropriate questioning styles,

Take evidence in informal surroundings (including pre-trial),

Allow video-recorded interviews to be used as evidence in
chief and not rely on problematic s 34CA,

Allow the use of communication assistants to assist vulnerable
parties to communicate in criminal justice system (s 14A).

New limited exception to hearsay rule and repeal of s 34CA
2015 Disability Justice Plan
Symposium
Special Measures
Vital Role of
Specialist Training
• Centre of Investigative Interviewing, Deakin
University
• Participating agencies
• Supporting vulnerable witnesses in the giving of
evidence: Guidelines for securing best
evidence
• Training methodology
• Module development
• Research component
• Expected outcomes
Specialist Training Launch
Communication assistance
• The Act allows people with complex
communication needs an opportunity to provide
evidence both in and out of court (s14A) with
communication assistants.
• To impartially assist people with complex
communication needs to provide an accurate
and coherent account of their experiences in
police interviews and court proceedings.
• Extends to victims, witnesses, offenders and
suspects, both in and out of court
Model
• A service using trained, independent volunteers
• Established and managed in the non-government
sector
• Endorsed by the South Australian Cabinet
• Embedded in wider changes to the law and court
processes both in Disability Justice Plan and the
Transforming Criminal Justice.
Process
 Communication assistance in the Disability Justice
Plan
 Legislation
 Service modelling
• Partner with a non-government service provider
• Service co-design
• Prototype service and evaluate
• Staged implementation state wide
The Role of Consultation
 ‘This is a very important day, I think, for South Australia. I think
this actually marks an occasion where, as used often to be the
case in the past, we are at the forefront of national thinking
and national reform in this area. Can I also thank all of the
disability sector people who participated in all the extensive
consultations about this matter. I think at the beginning they
might have thought this was something that should have been
treated with some scepticism but I think, over time, they came
to accept that this was a genuine and sincere effort by the
government to make sure that, to the extent legislation is
capable of doing so, some of the horrors of the past are never
repeated. I think it is really important that people in the disability
area appreciate that the Parliament is genuinely trying to be of
assistance and genuinely trying to do its best to give those who
have perhaps not had a voice in the justice system, a voice
that they should have. I think it shows every sign of being a very
ground-breaking initiative by the Parliament of South Australia
and I think it is one of which we should all be very proud.’
 Hon John Rau, House of Assembly ,29 July 2015,
All Party Support
 ‘It is a critical part of our justice system that we have a
system that is transparent and based on the accounts of
witnesses. The cornerstone of all justice and delivering
justice for the community is that the judicial system
requires accurate and honest witnesses. The human
being gives evidence in a public court in which not only
is justice being sought to be done, but justice itself is on
trial. In contemporary society, we do need to pay due
regard or closer concern for the situation of witnesses
and victims, and this is a good thing…We must go as far
as we can to reduce the pressures and problems of every
single witness, but also of vulnerable witnesses in
particular, for this is important in facilitating not only a fair
trial but also shows the compassion which the community
in general should show to victims of crime.’
 Hon Andrew McLachlan, 30 June 2015, Legislative Council
All Party Support
 ‘It makes me immensely proud to speak to this Bill today
and to know that in some small way Dignity for Disability
has contributed to improving the justice system in this
state for all people with disabilities through consistent and
fierce lobbying for what we now know as the Disability
Justice Plan… I strongly commend this Bill to the chamber
and also remind everyone that this is just one small part of
the disability justice plan, which was launched in 2014.
More cultural, policy and legislative changes are yet to
occur to empower people with disabilities to not only
speak out about what we experience but to prevent us
from experiencing those negative things in the first place.
These changes will require us all to work together
conscientiously and constructively in this space for many
years to come.’
 Hon Kelly Vincent MLC, Legislative Council, 2 July 2015
Further information
Disability Justice Plan (SA)
http://www.agd.sa.gov.au/initiatives/disability-justice-plan
 Terese Henning, ‘Obtaining the best evidence from witnesses with complex
communication needs’, Disability Justice Plan Symposium ,19 November
2015, Adelaide,
http://www.agd.sa.gov.au/sites/agd.sa.gov.au/files/documents/Initiatives%20Announcements%20a
nd%20News/DJP/DJP%20Symposium%20Paper_Henning.pdf
 Wider Issues, see Advocates Gateway (UK)
http://www.theadvocatesgateway.org/
Toolkits for:
•
Case management in cases involving vulnerable witnesses
•
Ground rules hearings
•
General principles from research re vulnerable witnesses
•
Planning to question vulnerable witnesses and witnesses with specific
impairments and best questioning styles
•
The effective participation of young defendants