Final Report - Volume 8, Criminal justice and people with disability
- Report
Video transcript
Volume 8 – Criminal justice and people with disability
Summary
Background
The Disability Royal Commission’s Final report tells the Australian Government what changes need to be made to prevent violence against, and abuse, neglect and exploitation of, people with disability.
We recommend change so people with disability can enjoy all human rights and freedoms fully and equally.
Our Final report has 12 volumes.
This video is a summary of Volume 8 – Criminal justice and people with disability.
Volume 8 explains what we learnt about the treatment of people with disability in the criminal justice system in Australia.
We held five public hearings focusing on the experiences of people with disability in the criminal justice system.
There are 10 chapters in Volume 8.
Chapter 1 – People with disability in the criminal justice system
People with disability are significantly over-represented at all stages of the criminal justice system in Australia.
Prisoners with disability have difficulty in coping with the prison environment. They experience ongoing challenges due to being disadvantaged, socially isolated, and are at higher risk of returning to custody.
The imprisonment of people with disability is not the result of the relationship between disability and crime.
It is due to the disadvantages experienced by many people with disability such as poverty, disrupted family backgrounds, family violence, other forms of abuse, misuse of drugs and alcohol, and unstable homes and homelessness.
The proportion of First Nations people with cognitive disability in custody, particularly youth detention, is a largely hidden national crisis.
Chapter 2 – The right to humane treatment in criminal justice settings
Chapter 2 examines evidence about the treatment of people with disability in criminal justice settings.
The conditions for people with disability in prisons and youth detention is poor.
They include:
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accessibility and communication issues
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untreated medical or psychological issues
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inadequate mental health care
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lack of social workers
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humiliation and negative staff attitudes
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lack of accessible showers
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excessive lockdowns at detention centres
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overuse of solitary confinement
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exploitation, including sexual exploitation, of prisoners with cognitive disability.
Disability awareness is greatly needed in custodial settings with a trauma informed approach to people with disability.
Chapter 3 – Youth detention
Children and young people with disability are over-represented in youth detention.
In 2022, about 709 children aged 10 to 18 were in juvenile detention each night in Australia.
Many children are either remanded or sentenced to a period in detention, cycle in and out of detention, and have regular contact with the criminal justice system.
Chapter 3 also considers whether solitary confinement in youth detention should be banned.
Chapter 4 – Fitness to stand trial and indefinite detention regimes
This chapter examines the indefinite detention of people with disability and their fitness to stand trial.
Some people with cognitive disability who face serious criminal charges may be found either ‘unfit to be tried’ or ‘not guilty on the basis of mental impairment’.
Each state and territory has developed their own laws to determine the issue of ‘fit to be trialled’.
This gives mixed messages as to how long they are in detention and no date is fixed for their release.
Chapter 5 – Screening, assessing and identifying disability in custody
Chapter 5 looks at how current systems screen and identify people with disability at various stages within the criminal justice system, in particular in custodial settings.
The criminal justice system is poor at identifying the needs of a person with disability, and there is limited information sharing between interfaces.
Chapter 6 – The NDIS and the criminal justice interface
Chapter 6 examines the responsibility of funding and providing supports to people with cognitive disability and/or complex needs in the criminal justice system.
The National Disability Insurance Scheme (NDIS) and justice systems are meant to work closely together at the local level. Our recommendations are aimed at improving transition planning in the NDIS and the interface between both systems.
Chapter 7 – Data collection by criminal justice systems
Chapter 7 looks at data collection in criminal justice systems.
No state or territory, except New South Wales, collects or publishes data recording the number of people with disability in criminal justice systems.
This has contributed to the poor understanding of the prevalence and types of disability in the criminal justice system.
Chapter 8 – Police response to people with disability
Chapter 8 focuses on police responses to people with disability.
Chapter 9 – Diversion from the criminal justice system
Chapter 9 focuses on the diversionary pathways for people with cognitive disability who come in contact with the criminal justice system.
This is a process of keeping people at risk of contact with the criminal justice system away from it, and accessing NDIS supports.
Chapter 10 – Domestic and family violence law and policy
Chapter 10 examines policies and laws that are aimed at addressing family and domestic violence.
Women with disability experience more family and domestic violence than people without disability.
Witnesses in our public hearings told us how abusers have targeted their disability-related needs or adjustments and took control of their mobility or communication aids, or their medication.
This chapter examines whether laws and policies have addressed violence against people with disability, especially women and children.
More information
For more information about our Final report, and to access all volumes, visit our website. Go to the ‘Publications’ section and click on ‘Final report’.
Video transcript
Volume 8 – Criminal justice and people with disability
Recommendations
Background
The Disability Royal Commission’s Final report tells the Australian Government what changes need to be made to prevent violence against, and abuse, neglect and exploitation of, people with disability.
We recommend change so people with disability can enjoy all human rights and freedoms fully and equally.
Our Final report has 12 volumes.
This video summarises some of the recommendations in Volume 8 – Criminal justice and people with disability.
This volume has 24 recommendations to address the maltreatment of people with disability in the criminal justice system across Australia. However not all recommendations are covered in this video.
The right to humane treatment in criminal justice settings and youth detention
We recommend state and territory governments uphold the rights of people with disability who are in custody. This is consistent with article 14 of the Convention on the Rights of Persons with Disabilities (CRPD).
We also recommend that the Australian Government, in consultation with state and territory governments, support the development of a human rights education and training strategy that includes disability awareness for staff in places of detention.
State and territory governments should ensure staff in youth detention centres at all levels receive appropriate training and support in relation to the needs and experiences of children with disability.
We recommend state and territory youth justice legislation be amended to strictly prohibit the use or practice of solitary confinement.
Screening and assessment for disability should be available for individual children with cognitive disability involved in the criminal justice system. They should receive appropriate responses, including therapeutic and other interventions.
The rights of people found unfit to be tried, and indefinite detention
We make recommendations to end practices allowing for the indefinite detention of people with disability in Australia.
Those recommendations are aimed at:
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supporting people with disability to participate in legal proceedings to maximise the prospect they are fit to stand trial
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educating court practitioners about the needs of people with cognitive impairment in their dealings with the court system
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requiring governments to review and implement the National Statement of Principles relating to persons unfit to plead or not guilty by reason of cognitive or mental health impairment that were published in 2019
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collecting and publishing data about the number of people found unfit to stand trial around Australia.
Screening and identifying disability in custody, the NDIS and data
We recommend state and territory governments ensure that policies and practices concerning screening, identification and diagnosis of disability are consistent with the national practice guidelines.
The National Disability Insurance Agency (NDIA) should draft guidelines to declare that funding for transitional supports for participants in custody do not rely on release date.
We also recommend the Australian Government and state and territory governments establish a statutory requirement for the annual collection and publication of data about people in detained forensic systems.
Improved screening and identification and better data collection practices are needed to understand the true extent of the needs of people with disability in criminal justice settings and to establish a better foundation for developing disability policies.
Improving police responses to people with disability
We recommend the Australian Government and state and territory governments and police services collaborate with people with disability in the co-design, implementation and evaluation of strategies to improve police responses to people with disability.
All police services should introduce adequate numbers of dedicated disability liaison officers.
The Australian Government and state and territory governments should introduce an alternative reporting pathway for people with disability to report crimes to police.
Diversion from the criminal justice system
We recommend state and territory governments review and fund their existing court-based diversion programs for people with cognitive disability. All state and territories should commission independent evaluations.
We also recommend states and territories that do not have diversion programs introduce them.
We recommend that states and territories that have not already done so raise the minimum age of criminal responsibility to 14 in order to prevent and protect young children with disability from experiencing violence, abuse and neglect.
Domestic and family violence law and policy
We recommend the Australian Government and state and territory governments develop a five-year Action Plan for Women and Children with Disability to accompany the National Plan to End Violence against Women and Children 2022–2032.
The Action Plan should:
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be developed by and for women with disability
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prioritise cohorts at greatest risk of violence
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coordinate with other relevant plans and strategies, in particular the forthcoming Aboriginal and Torres Strait Islander Action Plan and Australia’s Disability Strategy 2021–2031.
The Action Plan should include comprehensive actions and investment to address violence experienced by women and children with disability across the focus areas of:
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prevention
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early intervention
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response
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recovery and healing.
More information
For more information about our Final report, and to access all volumes, visit our website. Go to the ‘Publications’ section and click on ‘Final report’.