Australian Legal System: Causes and Effects of Disabled Persons Inequalities and Discrimination - Coursework Example

Australian Legal System Causes and Effects of Disable Person’s Inequalities and Discrimination 1. Introduction The concept of fairness is familiar to everyone. Fairness is a word we tend to use in everyday situations. The notion of fairness is associated with the idea of treating people equally, and acting honestly and with integrity. For most people the concept of justice is linked to closely to the idea of equality. Equality in turn is linked to the concept of the rule of law. Just as people do not have equal access to employment and education, neither do they have equal access to the legal system. For a legal system to be just, all people need to have good access to the system. Everyone should have the same chance of having a dispute decided by the legal system. Everyone should have the same opportunity to defend him or herself from a criminal accusation and the same chance to be protected by the legal system. The laws and justice system treat all people regardless of their circumstance equally. No one is above the law, regardless of wealth, power, politics, or other status. However, inequality against disabled peoples particularly those who suffered sexual assault is an issue of major concern in Australia. This is to ensure that people with disabilities who are victims or survivors of sexual assault can gain access to justice. Ensure greater levels of support and advocacy to empower people with disabilities to become more aware and assertive. 2. Disabled People and the Law In Australia, the legal system in general is harshly restricted because of cost. While legal aid is accessible to those on low incomes, many people on middle incomes are not entitled for legal aid and do not have enough money to pay the large fees required to hire a solicitor or barrister. According to Brassil (2004), regardless of formal equality before the law, the reality is different. Those with less power, less money and less education have less chance of being treated equally by the law. This is mainly because they have less access to the law. It could be said that inequality is institutionalized in Australia because the institutions of government, the legislature, the executive, and the judiciary are more accessible to those greater power and wealth (p.23). Many people would dispute that if the law is to be just, it should try to remedy inequalities that exist in society. Taxation and the social security system try to make certain that all people have adequate income to supply their basic needs and that the gap between the wealthy and the poor is reduced. Anti-discrimination laws also seek to reduce inequalities in society. Notwithstanding the efforts of the legal system in this area, some groups in society still suffer from inequalities. These groups include aboriginal, poor people, migrants, disable people, and women (Brassil 2004, p.25). Persons with disabilities according to the Department of Economic and Social Affairs (2001) are exposed to various forms of violence, such as physical abuse, sexual abuse, psychological and emotional abuse, neglect, and acts of omission and financial exploitations. Violence against such persons occurs in a variety of settings and environments. It is inextricably linked with inequalities in relationships between persons with disabilities and others that are aggravated by gender, ethnicity, class, and socio-economic and cultural factors particularly in institutional settings (p.256). Disability includes the total or partial loss of the person’s bodily or mental functions. The total of partial loss of a part of the body. The presence in the body of organisms causing disease or illness, or any disorder or illness that affects a person’s though processes, perception of reality, emotions or judgment or that results in disturbed behavior (Jones and Basser 1999, p.190). Studying disability, rights, and the law in Australia, Jones and Basser (1999) argues that there is no comprehensive protection of rights in a Bill of Rights or in the Constitution, nor is there any provision, which assures equality between members of the community. The rights and interest of people with disabilities are, however, addressed in a number of pieces of legislation at both a State and Commonwealth level. Moreover, even where legislation is not exclusively directed at people with disabilities, all areas of law affect the lives of people with disabilities. This is the case whether the law concerns education, health, local government, and criminal justice, provision of basic services or civil and political rights. Because there is no generalized protection of rights, there is no mechanism to address the structural inequalities and denial of rights that occur in many areas (p.189). The objective of Commonwealth Disability Discrimination Act 1992 or CDDA is the elimination of discrimination on the ground of disability in the areas of work, accommodation, education, access to premises, clubs and sport and in the provision of goods, facilities, services and land. This is to ensure that people with disabilities have the same rights to equality before the law as the rest of the community. This is also intended to promote recognition and acceptance within the community on the principle that people with disabilities have the same fundamental rights as the rest of the community (Jones and Basser 1999, p.190). An example of direct discrimination suffered by a disabled person is Adams v Arizona Bay Pty Ltd & Ors [1997] EOC 92-885 where Mr. Adams was unable to drive a car because of his disability. As result, he was dependent on the local taxi service. Record shows that employees of the taxi company were directed to treat Mr. Adam differently from other clients. They were instructed to make Mr. Adams wait a minimum of 20 minutes before providing him with taxi service and on one occasion, a driver was reprimanded for responding more quickly. Moreover, Mr. Adams was subjected to verbal harassment when he complained about delays in the taxi service. Mr. Adams claim that the owner had said that he is just doing a cripple a favor and Mr. Adams should be thankful for picking him up anyway. The court ordered that taxi company to pay Mr. Adams $5,000 compensation for direct discrimination and harassment (Jones and Basser 1999, p.193). However, not all discrimination is unlawful under the CDDA. Once it is established that discrimination has occurred it is possible for the respondent to a complaint to demonstrate that in the circumstances of the case the discrimination is in fact lawful. While all members of the community are expected to make adjustments in services and facilities for people with disabilities, in some situation it may be possible to argue that the adjustment required imposes an unjustifiable hardship (Jones and Basser 1999, p.196). 2.1 Sexual Assault and Justice In a report by the Productivity Commission in 2004 according to OECD (2007), the effectiveness of the CDDA has been reasonably effective in reducing discrimination. However, not all objectives had been achieved. For instance, people with mental disability had been excluded. Moreover, success has been greater in terms of access to public transport and education compared to improvements in employment opportunities (p.164). Research evidence from Australia and other international organization suggests the while the number of people with a disability in the community are relatively low, the relative number of sexual assaults perpetrated against them is high (Goodfellow and Camilleri 2003, p.7). According to Williams (1999), when one project for sexual assault survivors in Australia began to monitor the proportion of referrals which related to people with disabilities, it rapidly became clear that a disproportionate number of the survivors were intellectually disabled and that the majority of perpetrators were personnel working with clients, family members, fellow residents or employees. It may be that people with physical disabilities are particularly vulnerable to victimization in the home, but official information is not available. Crime surveys explicitly exclude people living in institutional care although this is one of the highest risks setting for sexual offences against people with disabilities. Such surveys also fail to ask people interviewed in the community whether they are disabled, despite the high rate of public order and sexual offending against people with learning difficulties. However, they are certainly at much greater risk of sexual victimization if they are institutional care, particularly from care staff. The police sometimes do not take complaints by people with learning difficulties seriously. Moreover, even where offences are reported to the police and proceeded with, prosecutions are often dropped because the prosecuting authority takes the view that witnesses with learning difficulties are incapable of giving credible evidence. People who have not met the complainant in the case usually make such decisions. Consequently, offences go unreported and the free movement of people with disabilities is constrained by fear of crime (p.35). This is because victims of this crime are often feeling humiliated, and degraded by the process. Ellison (2001) explains complainants in general were automatically challenged about their veracity, disinterestedness, integrity, knowledge, and way of life, reputation, and association (p.93). The failure to deal satisfactorily with minor crime may lead victims to tolerate quite serious abuse without formal complaints being made. They become accustomed to abusive behavior and poor policing practice. Williams (1999) explains that many disabled victims of sexual abuse and assault lack faith in the criminal justice system because of previous experience, and so decide not to report offences, which may become a self-fulfilling prophecy, as crimes that go unreported cannot be punished. Moreover, he added, the well founded fear of victimization often damages the social lives of people with disabilities, even discouraging them for leaving institution, if they are aware of acquaintances who have been victimized in the community and not had their complains taken seriously (p.36). 2.2 The Impact of Ineffective Legal System Access to the legal system impacts on people’s lives in a profound way. Inadequate legal representation can have a life-altering consequences and it can result in people having to live with undeserved criminal records, with flow-on effects for their employment prospects. It can also result in people having to represent themselves in difficult family law matters, getting bad property settlements, and ending up homeless or in very poor housing. More importantly, it can result in people not being able to wage discrimination cases, cementing their position of being easily exploited. In practice, people’s social circumstances are critical to their access. Knowing your rights and the services that are available to enforce them is the first criterion for accessing justice. However, very vulnerable groups, like the poor, new immigrants, indigenous people, the disabled, and isolated women in regional areas, were all unidentified as being particularly likely to be unaware of their rights. They were unlikely to know what options were open to them or how the system worked. More importantly, these groups are unlikely to be able to pay for services thus; they often go unrepresented, even though the cost of being on the wrong end of a decision is much greater than the cost of services. Many people in these groups have had little education, leaving them poorly equipped to manage the legal process effectively. The capacity to access information about the system and to make it work for them is restricted. These circumstances mean that some of the most vulnerable and most in need of the law’s protection are least likely to get it (Edwards 2002, p.117). One of the major obstacles in the way of comprehensive reform is the inevitable opposition from special interest groups, which, naturally, seek the preservation of schemes, arrangements, and preferences that benefit them. An important argument in favor of comprehensive reform is the justice requires that people with similar needs should receive similar assistance. However, “justice is a very slippery concept” ( Cane and Atiyah 2006, p.490) and it is possible to make an argument, based on a more or less plausible concept of justice, in favor of many of the preferences for particular groups embodied in the present law. Apparently, comprehensive reform requires a firm adherence to a particular notion of social justice, and the political will to disregard the please of those who receive special treatment under the current arrangements. Recent history does not give much cause for optimism on this score but the importance of standing firm is clear when one remembers that only a very small proportion of disable people benefits from especially generous schemes (Cane and Atiyah 2006, p.490). In Australia and other constitutional democracies, there is a general framework of respect for rights. Franklin (2007) explains that a strong and independent legal system and democratic political institutions protect the great majority of people and provide avenues of recourse for those whose rights are abused or threatened. Where problems arise is in the tendency of certain classes of people and certain issues to fall between the cracks. The shameful revelations of chronic violence in remote aboriginal communities have shown the vulnerable individuals, especially women and children, have been left to the mercy of vicious local tyrants. Moreover, the wider society sometimes closed its eyes to news of those abuses under the guise of respect for cultural traditions. These circumstances serves as a reminder that rights are the rights of individuals, and must take precedence where they clash with collectivist cultural practices (p. 124). Other groups whose rights have been overlooked in the crush of self-protective efforts by powerful groups are no doubt related to their difficulties in either suing or voting. This includes the mentally ill, the frail aged and disabled and their carers, the very young without strong parents, foreign nationals of powerless states, and refugees incarcerated for excessive periods. Until respect for human rights extends to every human being, in the country and out of it, Australia’s justified pride in its record cannot be as total as one would wish of a country with its Christian moral heritage (Franklin 2007, p.124). 3. Conclusion People with disabilities have the same rights to equality before the law as the rest of the community. This means the laws and justice system treat all people regardless of their circumstance equally. The Australian legal system in general is restricted because of cost. Those with less power, money, and education have less chance of being treated equally by the law. Violence against disable people occurs in a variety of settings and environments. Although people with disability in the community are relatively low, the relative number of sexual assaults perpetrated against them is high. However, complaints of disable people are often not taken seriously, as they are incapable of giving credible evidence thus offences go unpunished. Victims of the crime often feel humiliated and degraded by the process and losing their faith in the criminal justice system. Access to the legal system definitely affects the lives of people in a profound way thus inadequate legal representation is life altering. 4. Bibliography Brassil B., 2004, Excel HSC Legal Studies, Published 2004 Pascal Press, ISBN: 1741251192 Cane Peter and Atiyah P. S, 2006, Atiyah's Accidents, Compensation and the Law, Published 2006 Cambridge University Press, ISBN: 0521689317 Department of Economic and Social Affairs, 2001, Report on the World Social Situation 2001, UN. Department of Economic and Social Affairs, United Nations, Published 2001 United Nations Publications, ISBN: 9211302153 Edwards Lindy, 2002, How to Argue with an Economist: Reopening Political Debate in Australia, Published 2002 Cambridge University Press, ISBN: 0521525322 Ellison Louise, 2001, The Adversarial Process and the Vulnerable Witness, Published 2001 Oxford University Press, ISBN: 0198299095 Franklin James, 2007, Life to the Full: Rights and Social Justice in Australia, Published 2007 Connor Court Publishing Pty Ltd, ISBN: 1921421002 Goodfellow Jonathon and Camilleri Margaret, 2003, Beyond Belief, Beyond Justice, Disability Discrimination Legal Service Inc. Victoria, Melbourne, November 2003, ISBN –Pending Jones Melinda, Basser Lee Ann Marks, 1999, Disability, Divers-ability, and Legal Change, Published 1999 Martinus Nijhoff Publishers, ISBN: 9041110860 OECD, 2007, Sickness, Disability and Work: Breaking the Barriers (Vol. 2), Published 2007 OECD Publishing, ISBN: 9264038159 Williams Brian, 1999, Working with Victims of Crime: Policies, Politics and Practice, Published 1999 Jessica Kingsley Publishers, ISBN: 1853024503 Read More