Australia’s legal framework presents significant obstacles for vulnerable adults with cognitive and communication-based disabilities, who struggle to comprehend proceedings, articulate their experiences, and fully participate in the justice process due to the unfamiliar court environment and linguistic complexity of giving evidence during - evidence-in-chief and cross-examination. This compromises their ability to have their voices heard and may prevent Australia from meeting its domestic and international legal obligations to ensure adults with communication-based disabilities are treated as equal participants before the law.
Intermediaries (also known as Witness or Communication Intermediaries) facilitate communication between witnesses and defendants, who may be children or adults with communication-based disabilities, and legal practitioners to enable the giving of complete, accurate and clear evidence.1While witness intermediary schemes have been instituted across several Australian jurisdictions to ensure the effective participation of vulnerable individuals, significant variations exist in legislation and scope. In New South Wales, current legislation provides for intermediaries to facilitate communication for children and adolescents, but excludes vulnerable adult witnesses and defendants from accessing this support. This fragmented implementation across states and territories creates inequitable access to justice, with some vulnerable participants unable to achieve meaningful participation in legal proceedings.
Despite intermediaries playing a crucial role in safeguarding procedural fairness for adults with disabilities in the criminal justice system, there remains a dearth of research in Australia examining existing intermediary practices with adults and the frameworks regulating their inclusion. This research gap makes it challenging to evaluate the effectiveness of intermediaries when facilitating communication for adults providing evidence, and hinders the development of an evidence base for legal and procedural reform.
This project evaluates the impact of intermediaries on the effective participation of adults with disabilities in the criminal justice process and their access to justice, with particular focus on evidence-giving. Drawing on procedural justice theory, the study employed a multiple-method approach including: (1) a human rights based legal analysis of current Australian intermediary schemes examining legislative variations and exclusions; (2) case study analysis examining the linguistic complexity of evidence-in-chief and cross-examination, the intermediary’s role, and subsequent effects on evidence quality; and (3) discourse analysis of the intermediary role with adults with disabilities during police investigative interviews.
The research found that intermediaries have a positive impact on lawyer questioning and the clarity and coherence of evidence presented, particularly during cross-examination, thereby demonstrating increased access to justice and effective participation for vulnerable adults may previously be considered incapable of full participation. However, the study identified significant legislative gaps that restrict access to intermediaries for adult witnesses and defendants, thereby impeding meaningful participation. The research also revealed a lack of understanding of the intermediary role within the broader justice process, with implications for the scope of their participation and influence on other participants’ communication choices.
The project’s findings have implications for preventing misinterpretation of evidence and unjust outcomes, with valuable applications for criminal court procedure and criminal law practice. The research proposes reform to provide a nationally unified approach to intermediary schemes within Australia, incorporating standardised training for intermediaries, legal professionals, and judicial officers on disability, its effects on communication in court, and the intermediary role in achieving best evidence. Achieving equal access necessitates not only legislative reform but a broader cultural shift within the justice system that recognises the vital role of intermediaries in ensuring meaningful participation.
This research significantly advances understanding of the intermediary role within the Australian criminal justice process and the broader international context, contributing valuable scholarship on the participation of adults with communication-based disabilities in legal proceedings. By enacting unified legislation and fostering a culture that affords intermediaries with the same professional standing as interpreters, these reforms can meaningfully reduce communication barriers and ensure more equitable access to justice for all, moving closer to a system where communication disabilities are no longer a barrier to full and effective engagement.