Maria is a person with a learning disability. Her schooling has been affected and she has limited language skills. Maria is on a disability pension and her mother, Betty, is her carer.
Maria and Betty were charged with offences under the Victorian Building Act 1993 because they had failed to secure and demolish their house after an arsonist burnt it down. Maria and Betty faced these charges unrepresented in the Magistrates' Court. They were ordered to pay thousands of dollars in court costs and have the fire damaged buildings removed or pay huge fines. Their appeal was refused by a County Court judge.
Maria had the legal capacity to be in the County Court hearings, but her ability to participate was limited because her disability affected her ability to understand and communicate with the judge. Maria could not make decisions about what to say and what evidence to give without some direction and assistance from the judge.
Last week, the Supreme Court decided that Maria and Betty's case must be heard again by a different judge because the judge did not give them the right to a fair hearing, and did not give Maria the right to equal protection against discrimination. It said the judge should have recognised that Maria was a person with a disability and considered whether any adjustment was needed.
Victoria's Charter of Human Rights and Responsibilities requires courts and tribunals to adapt procedures so they do not discriminate against people with a disability.
In conducting the hearing the same way as a hearing for an adult without a disability, Maria was disadvantaged. This was a big reason why Maria was confused at the hearing, struggled to understand what the issues were, and did not have a fair opportunity to present her case.
Disability Access Bench Book
The Supreme Court's decision refers to the Disability Access Bench Book developed by the Judicial College of Victoria and the Commission, and informed by information gathered through consultations led by the Commission. The Supreme Court said that the Bench Book is an important contribution to helping ensure effective access to justice for people with disabilities.
The Disability Access Bench Book explains how courts and tribunals may need to treat people differently in order to achieve an equal outcome. This may involve making adjustments for people with a disability to participate in court proceedings on an equal basis with others.
The Disability Access Bench Book, an online resource for judicial officers, responds to a recommendation from the Commission's report Beyond Doubt: the experiences of people with disabilities reporting crime.
Find out more about the Disability Access Bench Book.