By The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
This volume describes what we have learnt about the treatment of people with disability in the criminal justice system in Australia. In particular, we have found people with disability are significantly over-represented at all stages of the criminal justice system. Chapter 1 gives a snapshot of the available data about people with disability in the criminal justice system, common types of disability, and factors contributing to people with disability having high rates of contact with the criminal justice system. Particular groups of alleged offenders with disability are far more likely to have contact with the criminal justice system (including with police, courts and corrections) than other groups. These include First Nations people with cognitive disability, women with disability experiencing violence, and people with co-occurring cognitive disability, psychosocial disability and other disabilities. The statistics are stark. For example, a 2015 report on adult prisoners in New South Wales found that 43 per cent of First Nations women who participated in the study had a disability,4 and between 40 to 90 per cent of adult prisoners may have an acquired brain injury.5 Because of limitations in the available data, the true number of people with disability in the criminal justice system in Australia is unknown. Nonetheless, it is clear people with disability – particularly those with cognitive disability – are disproportionately represented in criminal justice settings, across all stages, from police contact and arrest, through to court processes and correctional settings. The disproportionate rate of imprisonment of people with disability is not the result of any inherent relationship between disability and crime. Rather, it reflects the disadvantages experienced by many people with disability, such as poverty, disrupted family backgrounds, family violence and other forms of abuse, misuse of drugs and alcohol, unstable housing and homelessness. People with disability, particularly cognitive disability, are also exposed to frequent and intense policing.6 People with cognitive and mental health impairments experience multiple forms of disadvantage, making them more likely to be criminalised and caught up in a cycle of reoffending and incarceration. Relatively little attention has been paid by governments to the disproportionate number of people with cognitive disability who are in custody. The data we received about the proportion of First Nations people with cognitive disability in custody, particularly in youth detention, exposes a largely hidden national crisis. For example, as of 2015, almost one in four First Nations young people aged 14 to 21 in detention were estimated to have an intellectual disability, compared with one in 12 non-Indigenous young people. Despite this strong evidence, with the possible exception of New South Wales Corrective Services, corrective service and youth justice agencies do not collect or record adequate data about disability in their prison and youth detention populations. They also use widely different methods to identify prisoners with disability. No corrective service or youth justice agencies use a culturally validated screening tool to identify disability in First Nations people in custody. This means custodial agencies cannot identify the prevalence and types of disability within incarcerated populations, or adequately understand their support needs. This lack of data also limits the development, implementation and evaluation of criminal justice disability policies and programs, and the monitoring of health and disability support needs of people with disability in custody. We heard that prisoners with disability are: • more likely to have difficulty coping with the prison environment • more likely to experience a higher rate of comorbid mental health disorders and physical conditions than prisoners without disability • at increased risk of being disadvantaged and socially isolated • at higher risk of returning to custody. Interactions with the criminal justice system come at great social and economic cost to the community. It benefits the entire community if people with disability do not enter the criminal justice system in the first place, and if treatment and supports are improved within the criminal justice system and continue after any term of imprisonment. Further research is required on the social and economic benefits of early support to prevent people with cognitive disability and complex support needs from coming into contact with the criminal justice system. Improved screening and identification practices, complemented by further research, are needed to understand the true extent of disability of people in criminal justice settings. This would also improve understanding of Australia’s compliance with its obligations to ensure the rights of people with disability are upheld in the criminal justice system.
Sydney: NSW Parliament: The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability 2023. 368p.