The Law Handbook 2024

804 Section 8: Disability, mental illness and the law • Section 24: the right to a fair hearing; and • Section 25: rights in criminal proceedings. The Human Rights Charter allows a person to raise arguments in relation to human rights, along with existing remedies or legal proceedings. However, the human rights set out in the Human Rights Charter are not ‘absolute’ rights. Section 7 of the Charter requires rights to be balanced against each other, and against other public interests. This method of balancing is based on the notion that rights should be limited only in ways that are reasonable and justified in a free and democratic society. People can receive advice from the legal services listed at the end of this chapter about whether their human rights have been breached and the options they have to take action. People with disability and the police This section discusses police processes in relation to people with disability. Misconceptions about people with disability are common and may reflect negatively on potential witnesses, complainants or defendants who have a disability. With additional support (e.g. the independent third person; see below) people with an intellectual disability or psychiatric illness can be as reliable in giving evidence as anyone else. If a person with disability is not treated equally and fairly, they should consider making a complaint against the police (see Chapter 12.4: Complaints against Victoria Police). It is strongly recommended that you seek legal advice before taking any action against the police (see Chapter 2.4: Legal services that can help). Arresting people with a mental illness For helpful information about the powers of police officers to apprehend people with a mental illness, see Chapter 8.4: Mental illness. Interviewing people with a disability People with disability must be treated fairly when being interviewed by police officers. For example, police officers must ensure that a person with disability understands the caution given to them. Also, access to medical care must be given to the person being questioned if required. If these or other rights are not adhered to by the police, such behaviour may be a breach of the Human Rights Charter (see Chapter 3.5: Arrest, search, interrogation and your rights). Independent third person Asuspect,victimorwitnesswithacognitiveimpairment (including an intellectual disability, acquired brain injury, dementia, autism spectrum disorder or mental illness) is entitled to have an independent third person ( ITP ) present during a police interview. ITPs are volunteers who support people with a cognitive disability or mental illness during police interviews and also assist them in communicating with police officers and giving formal statements. The Office of the Public Advocate trains and supports these volunteers. Police officers may also request an ITP to be present in an interview (the police have access to a list of ITPs at all times). Although it is preferable to have an independent person, it is permissible for a family member or a friend who is 18 years or over to act as the ITP. An ITP assists the person to understand their rights and the questions asked by police. They clarify misunderstandings that may arise due to the person’s disability. An ITP must be independent of all parties and objective in all their actions. An ITP is not a legal advocate. An ITP does not make decisions for the person about how they should deal with the legal issues they are facing and cannot give any legal advice. Conversations with an ITP are not covered by confidentiality and can be used against the person in court. If an ITP was not made available to a person with disability when they were interviewed, the court should be informed. A defendant may submit to the court that because they were not given an ITP when they were questioned by police, they were unable to understand the caution and the interview process and therefore unable to effectively answer the questions appropriately. In this occurrence, the evidence from the police interview may have been improperly obtained, which constitutes a breach of the person’s rights under the United Nations International Covenant on Civil and Political Rights (1966) (see s 138 Evidence Act 2008 (Vic)) and the relevant Human Rights Charter rights.