The link between support and prison: NDIS eligibility and incarceration

Key points:

• The Royal Melbourne Institute of Technology’s Centre for Innovative Justice provided two submissions to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability which included 36 recommendations

• Over the past four-and-a-half years, the Disability Royal Commission held 32 public hearings across all States and Territories and heard from nearly 10,000 people

• ABI-related disability can impact cognitive, physical, emotional and independent functioning

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability concluded that relatively little attention had been paid by Governments to the disproportionate number of people with cognitive disability who are in custody.

The data Commissioners received about the proportion of First Nations people with cognitive disability in custody, particularly in youth detention, exposed a largely hidden national crisis.

Acquired brain injury is especially prevalent and numerous studies reported high rates of ABI among adult prisoners — as high as 40 to 90 percent. A report from the Australian Institute of Health and Welfare noted, ‘ABI is a risk factor for criminal behaviour and for offending after prison release’.

In 2022, the Australian Institute of Criminology published research from Victoria showing that young people with ABI or associated cognitive impairments may be over-represented in the criminal justice system.

Stan Winford, associate director of research for innovation and reform at the Centre for Innovative Justice said Australia’s criminal justice system had failed people with an ABI through a lack of recognition, respect and support.

“Two percent of Australians have an ABI, but in Victorian prisons, that number is far higher,” Mr Winford, a legal and justice system expert, said.

“One study by Corrections Victoria found that 42 percent of male prisoners and 33 percent of female prisoners have an ABI.

“Quite often, people with an ABI are stuck in a vicious cycle where they are in constant contact with the justice system due to the lack of appropriate support. 

“One of the recurring issues identified in our work has been difficulty meeting [National Disability Insurance Scheme] eligibility criteria.  

“There is a distinct lack of access to services for diagnosis and assessment available for individuals in custody, as well as a lack of documentation to prove diagnosis for those already assessed. “

Stan noted that many disability services do not provide services in custodial settings because of internal policies or barriers or a belief it is not possible to do so.

The two submissions provided by the RMIT Centre for Innovative Justice highlighted the need for:

• Improved pathways into secure long-term housing for people with disabilities in the criminal justice system
• Early intervention and diversion for people with disabilities in contact with or at risk of contact with the criminal justice system 
• Improved trauma and disability-informed practice in the criminal justice system 
• Improved cross-sector communication and information sharing

Notably, no jurisdiction in Australia, with the partial exception of New South Wales, comprehensively collected or published data that records the number of people with disability in criminal justice systems or the types and prevalence of disability within custodial settings.

In the Final Report, Commissioners recommended that Federal, State and Territory Governments should support legislation requiring the annual collection and publication of data relating to people found unfit to plead or not guilty by reason of cognitive or mental health impairment

Dorothy Armstrong, advisor and peer support worker Centre for Innovative Justice’s Supporting Justice project, gave evidence to the Royal Commission regarding the impact of the criminal justice system on people with disability.

“Everyone in the criminal justice system experiences a level of trauma because we are a part of a system that is failing people and the community,” Ms Armstrong explained.

“Currently, the way people are treated in the criminal justice system, particularly those people with poorly understood disabilities and mental ill-health, creates further harm.

“People with lived experience can offer insights into how a system operates in ways that a person with learned experience cannot. Including lived experience in policy design and implementation is vital. 

“If people with a disability in the justice system don’t experience respect and support, it’s highly likely that they’ll continue the offending cycle they’re on.”

As a person with lived experience of the criminal justice system, Dorothy is one of the founding members of the Voices for Change self-advocacy group for people with acquired brain injury.

Have you read Volume Eight of the Disability Royal Commission’s Final Report? Let the team at Talking Disability know and subscribe to the Disability Support Guide newsletter today. What do you believe should be changed about the criminal justice system?