The Barbed Wire Barrier to Justice
By Max Jackson of JacksonRyan Partners
Barbed wire, like a double entendre, can serve a dual purpose – to control the herd or to repel a threat. High-sounding pronouncements concerning people with disabilities about human rights, equal opportunity, anti-discrimination and social inclusion, stand for little. They are controlled by a few and this control is as effective as the sharpest spikes on a barbed wire barrier. When it suits, disabled people are denied justice.
Whether viewed from the lofty heights of the written law, due process, rights or social and moral considerations, time and again people with disabilities are denied true justice. Those authorised to protect and advocate the rights of disabled people are often attuned to their own needs. Barbed wire barriers are erected. Rationalisations come thick and fast. Rhetoric is consigned to the back burner. The superficial outrage about rights is replaced by self-protection. This is a telling indictment on the power brokers. It could readily translate into a play depicting a farcical tragedy where self-delusion, power and control deny justice to those crying out for help. Crying out from the other side of the barbed wire barrier.
Benjamin Franklin, promoted the tenet that ‘Justice will not be served until those who are unaffected are as outraged as those who are.’ Because the power players responsible for ensuring justice in the disability sector are not directly affected, they are not ‘as outraged as those who are.’ This includes the Minister for Disability, the Ombudsman, the Public Advocate, the Disability Services Commissioner (DSC), the Secretary of the Department of Health and Human Services (DHHS) and, from time to time, the Victorian Civil and Administrative Tribunal (VCAT) and the Coroner.
Significant figures in history as far back as Abraham Lincoln and people such as Martin Luther King, Nelson Mandela and Mahatma Gandhi have promoted the concept of social justice and sought to minimize the injustice unleashed on the vulnerable. Injustice, however, is still thriving. This is partly because the powerful have failed to apply the morality of social justice and partly because they have failed to demonstrate leadership in promoting change.
The Coroner’s Act denies justice. A recent report concerning a client who died as the result of choking, noted the law does not permit the Coroner to make ‘any statement that a person is or may be guilty of an offence.’ It also noted the Coroner’s role is not to ‘make any specific finding on whether there has been any negligence giving rise to the death.’
Investigating an administrative decision under the Ombudsman Act requires findings to be determined on the basis of whether the decision was ‘contrary to law’, ‘in accordance with a law’, ‘improper’, ‘a mistake’ or ‘wrong.’ Other than where a determination can clearly be made on the basis of an actual law, it would seem reasonable to think a determination requiring consideration to be given to ‘improper’ or ‘wrong’ would automatically take account of human rights and social justice. Not necessarily so, despite the rhetoric of rights.
Primarily created as a forum for what is known as litigants-in-person, VCAT was not intended to encourage the involvement of lawyers in some List areas. The Human Rights List can reasonably be concluded to be one such list. Perhaps so, but not for the Public Advocate who recently used legal counsel to threaten going to a hearing, suggesting it would be lengthy and cost tens of thousands of dollars. Costs counsel would seek to have awarded against the family seeking justice for their disabled son. How confusing, given the Public Advocate is empowered by law to promote and safeguard the rights and interests of people with disability. Hardball tactics like this shut families out from justice. Families have had to fight for every centimetre of social rights for their disabled family member.
How can it be justice when a disability service manager threatened to evict a person from her home, even though admitting she had done nothing to warrant being thrown out? Yet, no one in the justice hierarchy determined an injustice had been perpetrated. Not DHHS senior management, not the DSC and not the Ombudsman’s investigator. The manager was not called to account. Justice was denied.
In nine years, the DSC has only undertaken around 20 investigations from a case pool of over 1,000 complaints. The DSC’s default position is to conciliate. Apparently the DSC does not consider abuse as constituting a wrong. The recent Parliamentary Inquiry into abuse in the disability sector received multiple complaints about the DSC. The Inquiry acknowledged Victoria’s so-called protective mechanisms are not working. Yet, the Inquiry failed to recommend a clean out. The same flawed system that denies true justice to people with disabilities has a strong likelihood of continuing with the same incompetent managers at the helm.
Manipulating processes, and tactics designed to quell hope and dampen the persistence of those seeking justice, create injustice. The hierarchal system requires complex navigation. Processes are often unnecessarily elongated. The legal maxim that justice delayed is justice denied is alive and well in the disability sector.
The barbed wire barrier surrounding the public sector is like the walled castles that protected yesterday’s royalty. Victorians with disabilities should not be seduced by the rhetoric of justice as a right. Justice is an illusion where the barbed wire barrier is well and truly doing its job.
22 June 2016.