People with mental health issues and disability are over-represented in the justice system. The 2012 Legal Australia-Wide survey found that people with a mental health issuess or disability were more than twice as likely to experience legal problems. They are also more likely to experience multiple legal problems and have difficulty resolving them.
The justice system can be a particularly challenging place for people with disability and mental health issues. We support more appropriate and effective responses for people in these circumstances, such as greater access to support, rehabilitation and tailored interventions.
We have significant experience helping people with disability or mental health issues and use this expertise to advocate for reforms to prevent, and more effectively resolve, the legal problems of this priority client group.
Justice and law reform activities
Inclusion and accessibility in Victoria’s legal system – May 2020
We have made a submission to the Victorian government’s consultations for the next Disability Action Plan (2021–2024). Our submission Inclusion and accessibility for all Victorians highlights key priorities building on our casework experience assisting people with disability with their legal problems. We support all Victorians being able to live their lives with choice and control, having their disability appropriately taken into account at every stage of criminal justice process, and having the opportunity to fully and equally participate in our legal system. We recommend that the next state disability plan should focus on creating accessible legal systems for people with disability, implementing a service safety net under the NDIS, addressing the overrepresentation of people with disability in the criminal justice system, and improving treatment for people in forensic disability facilities.
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Addressing discrimination to prevent violence, abuse, neglect and exploitation of people with disability – April 2020
Victoria Legal Aid has highlighted the need to strengthen and enforce discrimination protections in Australia to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. We recommend empowering human rights commissions to enforce anti-discrimination laws, and stronger laws imposing a clear obligation on employers and education to take proactive steps to prevent discrimination, violence, abuse, neglect and exploitation. Our submission also outlines how to strengthen the individual complaint system, and a series of reforms to the education sector to remove barriers to entering and staying in the workforce.
Submission to the Department of Social Services and the National Disability Insurance Agency’s NDIS ‘Thin Markets’ Project
We have joined with the Northern Territory Legal Aid Commission and Legal Aid Queensland to present the stories of 10 people across Australia, whose lives and wellbeing have been affected by ‘thin markets’ caused by the transition to the National Disability Insurance Scheme (NDIS). Their stories highlight ‘thin market challenges’ across the country and, importantly, remind us that ‘thin market challenges’ have very real consequences for people, their families and the communities around them. Of the 10 people whose stories we share, seven are living in regional or remote areas, six are young people, two are experiencing homelessness or at risk of it, and four spent protracted periods in jail or a mental health unit that could have been avoided with the right housing and supports in the community. The NDIS continues to be a source of optimism and promise for Australians with disability. In its current form, however, it has added another layer to an already complex system, it has created or widened gaps in services, and, in some cases, it is exacerbating rather than resolving problems for people and their families.
We have recommended six areas for reform including better planning coordination and a workforce that can engage with complex clients and situations.
Submission to Productivity Commission’s Inquiry into the Economic Impacts of Mental Ill-health
Our recent submission to the Productivity Commission’s features the stories of eight people whose mental health has affected, or been affected by, their housing, employment, family and care of their children, ability to access appropriate treatment and support, and imprisonment. These stories of our clients and consumers highlight the ways in which laws, services and systems can reduce people’s life opportunities and carry heavy personal, social and economic costs.
‘Keeping a person in the community gives people a greater chance of remaining connected to supports that are essential to their recovery and wellbeing, including housing, education, employment, health supports provided through the National Disability Insurance Scheme (NDIS), community and family.’
Roads to Recovery – 10 themes that must be considered by Victoria’s Royal Commission into Mental Health – January 2019
Informed by our practice experience and work with consumers, we’ve outlined 10 key themes we think must be included in the terms of reference of the upcoming Victorian Royal Commission into Mental Health (RCMH).
The RCMH presents an opportunity for a review of the experiences of consumers of mental health services before, during and after their engagement with the mental health system. Our overarching comment about how the RCMH approaches its task is that it must consider system-wide context and reform. We caution against a narrow review of the mental health system or one that replicates the silos of the current service system, which will not present the same opportunity for positive change.
Report prepared as part of the Victorian Ombudsman’s investigation into the State Trustees – September 2018
Our Civil Justice Program provided a report to the Victorian Ombudsman as part of her investigation into State Trustees. The report, State of Trust: Making sure State Trustees protects and promotes the rights of Victorians with disability, contains 12 stories of our clients whose lives have been affected by the decisions and practices of State Trustees. Informed by our day-to-day work with thousands of Victorians with mental health issues and disability, the report highlights six key areas for improvements in both policy and practice to ensure State Trustees, and the regime in which it conducts its role as an administrator for vulnerable Victorians, can most effectively protect and promote the rights of Victorians with disability.
Submission to the inquiry into market readiness of the National Disability Insurance Scheme – March 2018
Following on from our November 2017 submission to the Joint Standing Committee on the NDIS, we have made another submission focussing on how the market is responding and in some cases failing to meet the needs of clients with complex clients. From the report – 'Since our last submission to the Committee in November 2017, we have seen an escalation and expansion of cases in which the unavailability of fully funded NDIS supports is directly affecting the liberty and safety of people with disability. The issue affects people with complex needs across Victoria, including, but not limited to, people living in regional areas. Our lawyers across our criminal, mental health and disability law and NDIA appeals practices are now all engaged with clients experiencing this same issue.' As outlined in the submission, when the NDIS market is ‘not ready’ or ‘fails’, our clients are put at risk of further harm by remaining in restrictive settings such as custody, psychiatric hospitals or becoming homeless. Among several recommendations contained in this submission we are calling for an urgent provider of last resort to be set up to meet these service needs.
Submission to the inquiry into transitional arrangements for the NDIS and into general issues around the implementation and performance of the NDIS – November 2017
As Victoria transitions into the National Disability Insurance Scheme (NDIS), our lawyers are increasingly dealing with cases where disability services agencies are failing to provide services to our clients. These clients have complex intellectual disabilities and failure to provide services to them is having harmful consequences, such as imprisonment for months or even years. To highlight this concerning issue, we made a submission to the Joint Standing Committee on the National Disability Insurance Scheme in November 2017. The committee is currently examining the operation of the scheme, rather than just the launch and transition phase.
Submission to the Productivity Commission on National Disability Insurance Scheme costs – July 2017
Our submission to the Productivity Commission’s inquiry into National Disability Insurance Scheme (NDIS) costs focuses on ‘reasonable and necessary supports’ and the Commission’s finding that not all participants are benefiting from the scheme, particularlu participants with psychosocial disabilities. Our submission draws on our recent experience in the case of McGarrigle v National Disability Insurance Agency  FCA 308 where the court ruled that laws governing the NDIS do not allow the government to only partially fund supports that are found to be ‘reasonable and necessary’ for a person’s independence and meaningful social and economic participation.
Submission to the Office of the High Commissioner for Human Rights on Article 13 of the Convention on the Rights of Persons with Disabilities – May 2017
As a legal aid programme with specialist services to improve access to justice for persons with disabilities, our submission provides valuable stakeholder perspective and illustrative data to the study on Article 13 of the Convention on the Rights of Persons with Disabilities.
Submission to the Equality, Capacity and Disability in Commonwealth Laws Issues Paper – January 2014
Our submission responds to questions posed in the issues paper that relate to priority areas of concern for Victoria Legal Aid. These relate to the recognition of legal capacity, improvements to our disability discrimination regime and eligibility requirements for the Disability Support Pension. We also highlight priority issues relating to accessibility of legal services and remedies.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au
Reviewed 17 March 2022