Disability rights and support in custody — what you’re entitled to

Key points:

• The Australian Human Rights Commission reported that people with disability do not experience equality in the criminal justice system

• Forty-six percent of the complaints received by the Australian Human Rights Commission in 2022 – 2023 were about disability discrimination

• Almost two in five prison entrants reported that a long-term health condition or disability affected their participation in everyday activities, education or employment

People with disability are overrepresented in Australian prisons compared to the general community, with one in three prison entrants — aged 25 –34 reporting disability — compared to one in 14 within the community.

Additionally, people with intellectual disability may be more vulnerable to suggestability or leading questions during interrogation and the Australian Human Rights Commission has stated that a lawyer should not advise a client to participate lightly.

The Disability Gateway legal aid portal can assist people with disability to find support and navigate the justice system.

People with disability may feel that they are at an added disadvantage during pre-arrest questioning, along with finding legal advice, appearing in court and pleading guilty. Similarly, experts have identified that people with disability may struggle during summary trial, at committal hearings, during a jury trial and with sentencing options.

Australian federal common law acknowledges the right to remain silence, however, this right is not protected by the Australian Constitution. Additionally, while Australian police must give an accused person notice that what they say during interrogation will be on-the-record and may be used against them, police are under no obligation to ensure the suspect understands.

When a person is in custody, the justice system will be primarily responsible for ensuring that their needs are met. People with disability are entitled to supervision, general support and assistance while in custody and the justice system must make ‘reasonable adjustments,’ if needed.

The National Disability Insurance Scheme may provide funding for supports that meet the NDIA funding criteria. Supports that may be funded for people in custody include:

• some forms of assistive technology — i.e. prosthetic limbs;
• disability support training for staff;
• capacity building supports that will help you when you’re released.

However, the justice system must determine whether certain supports are allowed in a custodial setting and managing the associated risks. Certain forms of assistive technology, for instance, may be refused if they pose a risk to yourself or others.

If you are in custody and wish to apply for NDIS-funded supports when you are released, you are advised to submit your application as early as possible prior to your release. Supports available through the justice system are available to provide information and assist you with applying for the NDIS.

If you receive NDIS-funded supports and enter the justice system, you may need to have your existing plan reassessed.

If you are in the justice system but you are not in a custodial setting, such as a jail or remand centre, you are not considered to be ‘in custody,’ as per NDIS policy. However, people that are out on bail or are serving in-home detention may be contacted regarding their plan.

Visit NDIS.gov.au or call the NDIA on 1800 800 110 to get help to complete the form over the phone.

What do you believe needs to change about the Australian justice system and its treatment of people with disability? Let the team at Talking Disability know and subscribe to the newsletter for more information, news and industry updates.

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