Data
Reasons for over-representation
Whole of criminal justice system Issues
Arrest/investigation
Court
Post-sentencing
Diversion
The criminal justice system is adversarial in nature and can be extremely complex both in terms of processes and concepts. This makes it intimidating and challenging for people who come into contact with it whether as alleged offenders, victims, witnesses, or jury members, and whatever their personal circumstances.
For people with disability, the criminal justice system is particularly difficult to navigate and there are an array of barriers which make accessing justice problematic. While people with physical and sensory disability can and do experience difficulties in accessing justice, for people with a cognitive disability the situation is especially challenging. This applies to victims, witnesses and accused people.
The ACT Human Rights Act 2004 states ‘everyone is equal before the law and is entitled to the equal protection of the law without discrimination’ [110] While this creates an obligation to address barriers for people with disability, there is a wider benefit to the ACT community in doing so because addressing those barriers will make the criminal justice system work better for everyone. If the criminal justice system continues to deal with disability as a separate issue as opposed to an aspect of what it means to be human, then it will never be fully accessible.
What we know
Data
Approximately 18 per cent of people in Australia identify as having a disability [111] but almost 50 per cent of adult detainees have a disability [112] and for children and young people the research indicates the position is even worse (for more see Chapter 2 , Groups with additional needs and vulnerabilities). The figure for detainees with an intellectual disability is estimated to be between eight to 20 per cent and, as reported in the Law Council of Australia’s The Justice Project final report— Part 1, this would indicate that the rate of cognitive impairment is likely to be higher ‘given that a significant number of inmates report ongoing neurological effects and psychological symptoms because of a traumatic brain injury’ [113].
In the ACT an ACT Detainee Health and Wellbeing Survey was carried out by the University of Melbourne in 2016 [114]. The survey recruited 98 individuals in the Alexander Maconochie Centre, with Aboriginal and Torres Strait Islander people being over-sampled to improve estimates for that cohort of detainees. The HASI [115] screening tool returned positive results for 28 per cent of the detainees surveyed and 52 per cent of respondents reported having at some time experienced head injuries that caused a loss of consciousness or black-out. In addition, 75 per cent of detainees at the AMC have been in prison before. This is the highest number of any other state or territory and compares to a national average of 56 per cent [116] Given the likely high rates of disability in detainees in the AMC, this could be contributing to rates of reoffending.
Reasons for Over-Representation
It is well documented that there is a strong correlation between disability and an increased level of interaction with the criminal justice system. While there are a number of theories to explain this correlation there is no doubt that an inability to interact with the criminal justice system in a way that meets societal norms is a contributor. The behaviours of offenders with cognitive impairment include being unable to recall information, express themselves verbally or comprehend what is being asked of them.
Without sufficient supports in place to assist people with a cognitive disability they are at a clear disadvantage navigating the system.
Also, research indicates that the criminal justice system is being used as both a solution and a default service provider when earlier
interventions, supports and services could have acted as protective and preventative measures. In a 2004 report, it was noted that ‘Prisons are often inappropriately utilised as a means of managing offenders with a disability’ [117].
There is also the potential for legislation (for example, the introduction of new criminal offences), policies, practices and systems to disproportionately impact on disadvantaged groups including people with disability. For this reason, the Law Council of Australia’s The Justice Project recommends ‘Justice Impact Tests’ be introduced in all Australian jurisdictions to ensure the downstream impacts of new laws or policies are understood [118].
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What we heard
Overall, we heard that the criminal justice system is not working well for people with disability and that those working in the criminal justice system were conscious of this and wanted to acquire the knowledge and resources to bring about positive change.
Whole of Criminal Justice System Issues
The lack of accessible information about the criminal justice system, in line with other aspects of the justice system, was the focus of comment during consultation. This included a lack of information about rights and services and the difficulty of navigating a complex system for people with disability.
A critical issue at all points in the criminal justice system we heard about was the need for people with disability to be properly identified, for their needs to be assessed and for reasonable adjustments to be made. A service advocating for the person with disability and supporting them throughout the process was identified as a need in consultations.
A further issue raised was the need for all actors in the criminal justice system to be educated in recognising both disability and communication needs, understanding the potential impact on the person and learning communication skills.
Arrest/Investigation
For ACT Policing attending an incident (often as first responders), it can be hugely challenging to identify whether they are dealing with a person with cognitive impairment and amend their approach accordingly. This applies whether the person is the accused, a victim or a witness.
Consultations (including with ACT Policing) focused on the need to acquire improved knowledge and understanding of disability, how to identify disability and the need for people with disability to be supported when being interviewed, together with the use of appropriate communication and questioning techniques.
It was notable that during consultations with detainees with complex needs in the Assisted Care Unit at the AMC, all reported they had not been legally represented during police interview.
We heard repeatedly during consultations that the presence of an intermediary during police questioning would make a significant difference to people with communication difficulties and ensure that the best evidence would be gathered.
A particular issue raised by people with disability was the perception that they were treated as being less credible as victims and witnesses during the investigation stage and alleged offenders were not charged because of this. The Law Council of Australia’s The Justice Project reports that ‘negative assumptions and stereotypes about the reliability and credibility of people with disability’ caused by a lack of understanding of disability means that their evidence may not be sought [119].
ACT Policing has undertaken significant work to improve responses to people with mental illness, including establishing a partnership with ACT Health and providing substantial training to operational staff. This approach may provide a useful model to introduce improvements for people with disability.
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Court
Courts are generally formal places which are naturally intimidating and have processes which are notable for their complexity and legal terminology.
During consultation we heard much about the need to ensure that people with disability understand what is happening and are included in decisions. Again, the desirability of educating and up-skilling of prosecutors, defence lawyers, the judiciary and all other professionals working the court system was raised repeatedly.
In an adversarial system, the importance of the court hearing the best evidence possible from witnesses (including accused people) is critical to ensure criminal proceedings are fair. The ACT already has a suite of legislative provisions and tools designed to achieve this, such as giving evidence via an audio-visual link or from behind a screen. However, we heard in consultations that these provisions did not necessarily ensure people with disability could give their best evidence and that the provision of intermediaries was strongly supported.
We also heard that frequently a lack of suitable accommodation was a key factor in the refusal of bail. In addition, it was reported that there was sometimes a disconnect between the supports the courts wished to see in place in order to be satisfied that bail should be granted and the supports the NDIS was offering.
Consultations also revealed concerns about the way that fitness to plead provisions operate in the ACT and the interaction between the criminal justice system and the civil jurisdiction of the ACT Civil and Administrative Tribunal.
Sentencing is a complex exercise taking into account a wide range of factors which go to the seriousness of the offence and the culpability of the offender. For an offender with disability,
particularly cognitive impairment, it is important for the sentencing court to receive information about that disability in order to form an informed view of the level of culpability. This again raises the issue of identification and assessment of offenders prior to sentencing.
ACT Courts and Tribunal’s (ACTCT) new court buildings are fully compliant in terms of meeting disability requirements. ACTCT is also working on improving access to information and training for staff on responding to people with disability.
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Post-Sentencing
We heard:
"Bail conditions can set people up to fail."
Consultation participant
"People need support from the get-go. There is no NDIS for contact with police."
Consultation participant
"In court I just sat there like a stuffed duck. I didn’t understand what was happening.
It was scary."
Detainee with cognitive disabilityA significant number of offenders will be placed under the supervision of ACT Corrective Services either because they are serving a community- based sentence or because they are serving a term of full-time imprisonment in the AMC. Young offenders will be supervised by the Community Services Directorate in the community or at Bimberi Youth Justice Centre.
Perhaps unsurprisingly, consultations focused in large part on the AMC and the needs of detainees with disability. It was noted that screening is inconsistent and so there is no accurate data on the numbers of detainees with disability. We also heard about the need to provide more training for staff and to ensure information- sharing worked more effectively.
We also heard about the challenges presented for prisoners who have a NDIS package prior to entering the AMC in terms of ongoing service provision during their detention and then for full service provision to be re-instated on release. This issue is being worked through by all states and territories, the Commonwealth and the National Disability Insurance Authority as part of the wider work to address all criminal justice interface issues with the NDIS at the direction of the Council of Attorneys-General and the Disability Reform Council. A related issue we heard about was the need for ongoing supports more generally to be in place for people with disability as they transition out of a custodial setting and particularly the need for appropriate accommodation. ACT Corrective Services facilitated a consultation with detainees in the Assisted Care Unit at the AMC which houses detainees with complex needs. We spoke with a group of prisoners who shared their experiences of the criminal justice system. The key matters they talked about were:
- not understanding what was happening which they found ‘scary’ and the value of having someone to help them
- how they did not always feel involved in the legal process but more like observers when decisions were being made about them
- the impact of homelessness and unstable housing both as young people and then adults and the very close linkages they made between having no home and offending
- being victims as well as offenders
- fragmented education experiences
- despite all these issues, accepting personal responsibility for their behaviour.
ACT Corrective Services is already working to introduce a disability framework to guide its operational approach to people with disability. This is being undertaken collaboratively with the Disability Justice Strategy team (jointly staffed by the Community Services Directorate and the Justice and Community Safety Directorate). In addition, a new training program for newly recruited court transport officers which focuses on disability was piloted in October 2018.
For young offenders the issues were very similar to that of adults. In addition, we heard that:
- a more solution focused approach with appropriate supports to address offending should be applied to young people
- early identification of disability is key to diverting children and young people from the pathways into the youth criminal justice system, with the education system operating to alert other services where necessary to create a cohesive, whole-of- family-based approach.
Diversions
We heard:
"We need diversion options — but diversion to what?"
Consultation participant
"We need off ramps to keep kids and people off the highway to the AMC."
Consultation participantA common theme brought up in consultations was the shortage of diversionary options for people with disability, both in terms of diversion away from the criminal justice system and diversion from custody. We also heard of programs which had operated well but for a range of reasons were no longer doing so.
Closely allied to this issue was the lack of appropriate accommodation for people with disability who have been charged or convicted of a criminal offence. Consultations reported that people with disability who were homeless or not able to offer the court suitable accommodation were denied bail or received a sentence of imprisonment as a result.
We also heard that agencies would like to be able to identify and access referral services which could offer expertise in identifying appropriate diversions.
Concerns were raised in consultations that existing diversionary options were underused including: police cautions; and the process under section 334 the Crimes Act 1900 to allow referrals to the ACT Civil and Administrative Appeals Tribunal for people with mental impairment.
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What could we do?
There are a wide range of actions or initiatives that could be pursued over the lifetime of the Strategy to improve the way the criminal justice system interacts with people with disability.
These include:
- the development of a DAIP by all organisations to identify and undertake improvements to support accessibility and inclusiveness
- exploring the introduction of justice impact assessments for all new policies, procedures and legislation on people with disability to gauge downstream effects
- embedding disability justice workers in relevant organisations to provide expertise and linkages to services
- reviewing diversion pathways and propose diversion options
- considering the services (including expansion of the Ngurrambai Bail Support program pilot) that would support the grant of bail to people with disability, including the availability of appropriate accommodation options.
- the introduction of sentencing options focused on reducing offending by people with disability including as a diversion from imprisonment, e.g. in Victoria a sentencing court dealing with an ‘intellectually disabled offender’ can attach a ‘justice plan condition’ to a Community Corrections Order which provides services designed to reduce reoffending [120].
- the introduction of intermediaries for people with disability in contact with the justice system whether as victims, witnesses or alleged offenders
- support workers to work with people with disability (rather than as supports to the criminal justice system which is the role of an intermediary) to assist with navigation of the system and advocate on behalf of the person with disability to ensure reasonable adjustments are made
- consideration of cards for people with disability to present (if they choose) to first responders and others in the criminal justice system which identify their disability
- work with the Blueprint for Youth Justice 2012– 22 to support the commitment to enhance supports for young people with disability
- the Office for Disability continuing to work with the NDIA to ensure the interface between the NDIS and people with disability in the criminal justice system operates effectively
- explore how legal services could be enhanced to meet the needs of people with disability in the criminal justice system
- review the provisions relating to unfitness to plead and mental impairment in the Crimes Act 1900.
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Part 2 Chapter 5 Service Reforms
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Page updated: 27 Feb 2024