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3 Police, courts and corrections – the issues

3.1 General findings

In our consultations the Commission received information from people with disabilities and their advocates, support services in the community and in government and people in the police, courts and the custody and release system.

The Commission also received many submissions and held a number of meetings with community members and public officials who work in or with the criminal justice system. Our overall sense is that people, whatever their roles, want substantial improvements in the ways criminal justice affects the lives of people with disabilities. We list the consultations, submissions and meetings in Appendix C and in this chapter provide a picture of the issues people deal with every day.

The Commission found:

  • Inability to access effective justice compounds disadvantages experienced by people with disabilities.
  • Many people with disabilities are left without protection and at risk of ongoing violence.
  • People with disabilities experience a relatively high risk of being jailed and are then likely to have repeated contact with the criminal justice system.
  • Many offenders with disability have themselves been victims of violence and this had not been responded to appropriately, contributing to a cycle of offending.
  • There is widespread difficulty identifying disability and responding to it appropriately.
  • Necessary supports and adjustments are not provided because the need is not recognised.
  • When a person’s disability is identified, necessary modifications and supports are frequently not provided.
  • People with disabilities are not being heard because of perceptions they are unreliable, not credible or incapable of being witnesses.
  • Erroneous assessments are being made about the legal competence of people with disabilities.
  • Styles of communication and questioning techniques used by police, lawyers, courts and custodial officers can confuse a person with disability.
  • Appropriate diversionary measures are underutilised, not available or not effective due to lack of appropriate supports and services.
  • People with disabilities are less likely to get bail and more likely to breach bail because they have not understood the bail conditions.

The Commission’s attention was also drawn to many services and programs that are attempting to overcome barriers and bridge gaps that frustrate access to justice for people with disabilities. Many of these services and programs specifically provide support to people in dealing with police, courts and custody. Some also address housing, employment and education—factors that profoundly influence standards of living and therefore participation as victims or perpetrators in the criminal justice system. Without attempting to be comprehensive or to assess each one, we have provided a list at Appendix A with links to further information.

The conclusion that clearly emerges from the submissions, public consultations and private meetings is that despite much good work and the best intentions, people with disabilities have far too many unsatisfactory interactions with the criminal justice system. In particular, knowing what support is available and getting it to the right place at the right time seems to be part of the problem.

This and other issues are being addressed in South Australia through development of a Disability Justice Plan. The South Australian Government intends to use this plan to safeguard the rights of all people with disabilities in their interactions with the criminal justice system. They are being careful to involve people with disabilities from the outset in formulating the plan.

The Commission urges governments around Australia to consult with South Australia and to learn from experiences there. If we coordinate, inform and monitor in a planned manner barriers will be removed faster and gaps bridged sooner. The services we have will be improved and new and better ones developed. The human rights of people with disabilities will be better respected, their standard of living will improve and the criminal justice system will become less of a presence in their lives.

3.2 Police

In its Report on Government Services 2012 the Productivity Commission said:

Broadly, the whole community is a ‘client’ of the police. Some members of the community, who have more direct dealings with the police, can be considered specific client groups, for example:

  • victims of crime
  • those suspected of, or charged with, committing offences
  • those reporting criminal incidents
  • those involved in traffic-related incidents
  • third parties (such as witnesses to crime and people reporting accidents)
  • those requiring police services for non-crime-related matters.

The Productivity Commission also said:

The key objectives for police services are:

  • to allow people to undertake their lawful pursuits confidently and safely
  • to bring to justice those people responsible for committing an offence
  • to promote safer behaviour on roads
  • to support the judicial process and achieve efficient and effective court case management and judicial processing, providing safe custody for alleged offenders, and ensuring fair and equitable treatment of both victims and alleged offenders.

These objectives are to be met through the provision of services in an equitable and efficient manner.

First engagement with the criminal justice system often comes through contact with police or other investigators. For most people in the community this is an unusual event involving some difficulty, whether they are a victim of crime, a witness or a perpetrator.

People with disabilities share this general experience but for them it frequently has additional troubling elements. The truth is that for many people with disabilities contact with police is not unusual, it is frequent and alarming. It is marked with the range of societal fears, prejudices and discrimination common in the lives of people with disabilities – but this happens among the heightened tensions of reporting crime, witnessing crime or being accused of crime.

People with disabilities, their families, friends and support services gave disturbing accounts in our consultations describing lack of understanding, abuse, prejudice and violence they have met in their dealings with police and investigative bodies.

From police themselves a troubling picture emerged of good intentions frustrated, resources unavailable when required, and a societal expectation that a police officer is the carer of last resort. Our consultations with police and other research indicates that while under-resourcing is a problem there is a lack of awareness of, and easy access to, existing resources that support people with disabilities in the criminal justice system and this leads to bad outcomes for people with disabilities and for police.

Police are involved more and more frequently as first responders in crisis situations involving people with mental health difficulties. In New South Wales for example, there was a 25 per cent increase in the annual number of police incidents involving people with a mental health problem between 2008-2009 and 20112012. This period saw the number grow from about 22,000 incidents in 2007-2008 to around 30,000 in 2011-2012.

Tragically for the person, their family and the officers involved, across Australia over the 11 years 1989-1990 to 20102011, 42 per cent of people shot by police had a mental illness. Police do not join the force to shoot people or to be de facto mental health workers.[20]

Barriers and gaps

As the consultations and submissions demonstrate, the objectives described above are frequently not met.

The necessity for police to be able to broadly identify disability was raised repeatedly especially as it was reported that police have difficulty distinguishing between intellectual disability, psychosocial disability and acquired brain injury, amongst other cognitive disabilities.

One senior police officer told the Commission “Police still cart off people with disabilities to psychiatric hospitals.”[21]

What is common for all people with disabilities is the requirement for ready access to support when involved in criminal investigations. This would ensure people with disabilities are heard and appropriate action by police can then result. This is true for both victims with disabilities and people with disabilities who come into contact with the police.

For example, one person with disability told the Commission “When I attended the police station, the police officer thought I was dumb at first and he didn’t take it seriously.”[22]The Victorian Coalition of Acquired Brain Injury Service Providers told us in their submission that in community interviews conducted, a person said “It felt like they were using my disability to discredit me not help me.”[23] A woman with disability reported:

As a victim of domestic violence I encountered police who just did not see me as worthy of their time. When I became homeless, they thought this was normal as I was a person with a disability.[24]

There is, however, no system to book independent accredited communication support workers.[25] There is limited access to legal representation and many people with disabilities do not know their rights and therefore do not ask for appropriate adjustments.[26] Often it is family members who are given the choice of whether or not to proceed and not the person with disability who has been the victim of a crime.[27]

Many people with disabilities, particularly people with intellectual disabilities and psychosocial disabilities also reported that they are being interviewed without appropriate support persons.[28]

Supports are not being provided, in part because the resource demands exceed perceived value.[29]

Such supports are often seen as painstaking, time wasting and ultimately of little utility due to the subjective view that the practicalities of taking the matter further are outweighed by the work required to be done to ensure the process is accessible.[30]

The Intellectual Disability Rights Service – Criminal Justice Support Network reported:

Police are very poor at identifying intellectual disability and calling for a support person when necessary for defendants or victims. This is despite the training we provide to Custody Managers and the police’s own guidelines outlined in the Police Crime Manual. In contrast to the hundreds of court supports we provide each year, we are only given the opportunity to provide very few clients (114 in 2011-12) with support at police stations"[31]

Submissions to the Commission revealed some evidence of limited understanding of deafness and deaf culture.[32] For example, there can be an assumption that Deaf people can lip-read[33] and nodding means the Deaf person has understood or is agreeing to the statements made.[34] The Commission heard of instances where failure by a Deaf person or person with hearing impairment to obey an instruction was misinterpreted by police as aggression.[35]

Failure to identify disability, provide the necessary supports and adjustments or take disability into account during communications, compounded by negative attitudes, assumptions and stereotypes of people with disabilities, often results in people with disabilities being seen as not credible and their evidence as not reliable.[36] For victims with disability this means police do not proceed with charges or the Director of Public Prosecutions (DPP) does not prosecute.[37]

Professor Martine Powell told the Commission:

Research indicates that people with an intellectual disability can provide accurate and reliable testimony but that poor interviewing practices negatively influences the quality of evidence elicited. When considering response accuracy, open-ended questions minimise differences in responding between persons with and without an intellectual disability. The decline in accuracy from inappropriate questions is greater for vulnerable witnesses.[38]

The necessity for people with disabilities to be provided with appropriate supports and police to be trained in best practice interviewing techniques are therefore seen as critical in order for people with disabilities to be heard and have access to justice.

We need to get the initial police interview right - If we address this front line barrier of asking the right questions in the right way in the first place, everything will improve right through to prosecution of the case because we would get better evidence. [39]

The Commission also repeatedly heard about the limited availability of community supports and services. This significantly reduces police referral and diversion options and is particularly problematic for people with disabilities as they often come into contact with police when they reach a crisis point.[40] This is especially true for people with psychosocial disability who often are unable to access mental health services and supported accommodation.

Limited access to advocacy and legal services with disability expertise was also reported, especially in remote and regional areas.[41] For Aboriginal and Torres Strait Islander people and people from culturally and linguistically diverse backgrounds with disabilities access to culturally competent services with disability expertise, and Aboriginal legal services, was even harder.[42]

In relation to bail, people with disabilities, particularly people with psychosocial disabilities and cognitive impairments are less likely to get bail because they have a history of offending, are less likely to have secure accommodation, are less likely to have appropriate supports and services and find it difficult to understand and comply with onerous bail conditions.

Access to supported accommodation is also critical for people with disabilities to be granted bail:

This is a typical case of an Aboriginal man who has been brought into custody. NAAJA couldn’t make a bail application on his behalf because he does not have stable and safe accommodation and subsequently there is a presumption against bail. He spent 7 months in custody. Now we have managed to get him into a shared house in a local area. This shows that it can happen: prison to supported accommodation and back into the community. It shows that you don’t need millions of dollars but you do need somewhere safe and supported.[43]

3.3 Courts

The Commission has had the benefit of a report[44] by DLA Piper responding to some of the issues raised in our Issues Paper, based on their own research and on information they gathered at consultations the Commission held for Equal before the law. The following material is a précis of the first chapter of their report, which deals with questions of how people with disabilities fare as witnesses. Full citation of legislation and other sources is given in the original report. We have included this information here because Australia as a nation must ask itself – given the efforts made to reform the law to assist people with disabilities before the courts – why are the outcomes described by community members so often unsatisfactory? Is it still the law? Or is it something else?

(a) Evidence and people with disabilities
Competency

People with disabilities frequently experience prejudicial assessments of their competency to give evidence either as a witness to criminal proceedings or as a defendant to proceedings. This has the potential to preclude people with disabilities from accessing justice.

In the Commonwealth, New South Wales, Victoria, Tasmania and the Australian Capital Territory, Uniform Evidence Acts have been enacted. Queensland, South Australia, the Northern Territory and Western Australia have not adopted the uniform evidence laws, and rely on their existing legislation.

Under the Uniform Evidence Acts:

  1. Every person (regardless of age, race and gender) is competent to give evidence unless they do not have the capacity to understand a question about a fact or do not have the capacity to give an answer about a fact that is able to be understood and this incapacity is not able to be overcome.
  2. The Uniform Evidence Acts expressly state that mental, intellectual or physical disability are examples of reasons that lead to a person having a lack of capacity to understand a question or give an answer.
  3. A person incapable of giving evidence about one fact might be competent to give evidence about other facts.
  4. A person who is competent to give evidence is not competent to give sworn evidence if they do not have the capacity to understand that they are under an obligation to give truthful evidence.
  5. If a person is unable to give sworn evidence they may be competent to give unsworn evidence if the court has told the person that it is important to tell the truth.
  6. Evidence given by a witness will not become inadmissible because that witness ceases to be competent of giving evidence.
  7. The court is able to inform itself as it sees fit as to questions of competency including obtaining information from persons with specialised knowledge.

Other Evidence Acts

As a rule, the Queensland, Western Australia, South Australia and the Northern Territory presume that everyone is competent to give evidence. Tests of competency vary across the jurisdictions. In general, a person who does not understand the obligation of an oath or affirmation may give informal evidence if the court is satisfied the witness understands the importance of telling the truth.

Facilitating evidence for persons with a disability

The Uniform Evidence Acts

  • The Acts give examples of how disabilities might be overcome by use of interpreters and by allowing adjustments to be made for the delivery of evidence by deaf or speech-impaired witnesses. These provisions were included to make it clear that the physical disabilities of a witness give rise only to practical problems of presentation and not to competence.
  • Courts have discretion to have questions asked or evidence adduced "in any appropriate way" in circumstances where a witness cannot speak or cannot hear.
  • Further examples of how disabilities might be overcome were not included in the Uniform Evidence Act on the basis that if the law was more prescriptive of the adjustments that could be made this might prevent alternative adjustments and in turn limit the types of incapacities that might be overcome.
  • A judge may direct a witness to answer a question in a particular way such as using simple language or through non-verbal communication. This focuses on the manner and form of the questions to witnesses and their responses.
  • Witnesses who cannot hear or speak 'adequately' may be questioned or give evidence by 'appropriate means'.
  • Interpreters are allowed (with the exception of Tasmania).
Other legislation

There are varying provisions across jurisdictions that permit special or vulnerable witnesses to be identified and afforded support before a court. That support may take a number of forms, including:

  • Having a supportive person present, including a person who can assist with interpreting their evidence
  • Using audiovisual evidence, either in real-time or pre-recorded
  • Cautions to jurors about not drawing adverse inferences just because a person requires assistance to give evidence.
Perceptions of credibility
  • Jurisdictions using the Uniform Evidence Acts abolished the common law rule preventing experts from giving their opinion about the credibility of witnesses.
  • An expert can correct mistaken beliefs that juries may have about the credibility of a particular witness.
  • This can assist witnesses who need communication supports or who have complex and multiple support needs as such witnesses may be less likely to seek clarification when they are confused, may be prone to anxiety and have difficulties remembering what happened a long time after the event in question.
  • Expert testimony can be costly and it is difficult to find trained people in rural Australia who can give expert testimony.
  • A judge must disallow an improper question. Under the uniform evidence legislation, an improper question can include a question which is based on a stereotype based on a person's mental or physical disability.
  • Witnesses who have communication difficulties may be particularly disadvantaged by the emphasis on oral evidence in court proceedings.
  • If reliance is to be placed upon the evidence in chief of a witness with communication difficulties, that witness must usually be made available for cross-examination or otherwise face an adverse inference being drawn.
  • The hostility of cross-examination, the use of coercive questioning strategies and the delay between the event and proceedings all contribute to a negative impact on the testimony of witnesses with disabilities.

At the end of this summary of the research by DLA Piper, the question asked at the beginning seems even more pressing. Why are people with disabilities so likely to be denied the basic human right of equality in court and therefore justice under law?

Is it because, as Chief Justice Kourakis of South Australia told us, the rules of evidence are in fact flexible enough to permit interpreters and other supports for people with disabilities but the rules are not used and tested in higher courts? “As judges, we don’t see a lot of these problems because the cases don’t come to court in the first place and we haven’t had to make rulings on evidence”, the Chief Justice said.

Are the supports permitted in courts sufficiently known by people with disabilities and their advocates? Does the criminal justice system provide information at the right time, the right place and in the right format?

Or is it because administrative systems are unable to deliver, by reason of lack of knowledge, poor resources or attitudinal barriers, services to people with disabilities? According to the Productivity Commission:

Indicators of quality for court administration have not yet been identified.

The perceptions of court users about the quality of the services delivered by courts may be strongly influenced by the outcomes of judicial decisions ... Isolating perceptions of the quality of court administration may be difficult.[45]

This is a telling statement from the body that produced the Report on Government Services 2012. Actions that support the needs of people with disabilities are implemented through administrative actions. If general indicators of administrative service quality are not available then a basic need for transparency and accountability – matters that are fundamental to the exercise of human rights by people with disabilities – are at risk.

People must not be disadvantaged by virtue of being unable to participate in the court process, including by facing longer periods in detention than would otherwise have been imposed as a punishment for the offence. If a victim, they must not be denied justice simply because supporting them is perceived to be difficult.

A victim with disability won’t even get their day in court because the DPP won’t run the case.[46]

Barriers and gaps

People with disabilities and people who work in the court system expressed considerable frustration to the Commission. The reasons for reasonable adjustments not being provided in court processes included:

  • people with disabilities not being aware they were available
  • support persons and interpreters were not booked
  • lack of availability of support workers
  • communication devices banned in court
  • there was no help filling out forms or meeting other purely procedural requirements.

In addition to the lack of screening mechanisms, training and inability of lawyers and judges to identify disability, the Commission also heard about the delays and costs associated with obtaining a formal diagnosis and time constraints on lawyers and Magistrates. The Disability Rights Advocacy Service stated:

It is often the case that people with a mental illness, intellectual disability or acquired brain injury plead guilty (are ‘plead out’) by duty lawyers who may not identify the disability and thus, be oblivious to whether or not the disability is related to the alleged offending. This lack of identification is further exacerbated by the lack of time available to a duty lawyer to properly and thoroughly investigate a matter prior to entering a plea.

The Commission heard that courts are not adjourned to find out if a person has disabilities and that systematic approaches to identify disability also do not exist, resulting in supports and services not being provided and no accommodations being made.[47] We heard of statements being taken from Deaf people with no interpreters present, people pleading guilty and not understanding what they were saying or what the consequences would be.[48]

The National Aboriginal and Torres Strait Islander Legal Services told us of how an undetected disability can affect a person’s access to justice. In their submission[49] they quoted from the evidence provided to the Senate Community Affairs References Committee in its Inquiry into Hearing Health in Australia

One audiologist talked to me about dealing with a client who had recently been convicted of first-degree murder and had been through the whole criminal justice process. That had happened and then she was able to diagnose him as clinically deaf. He had been through the whole process saying, ‘Good’ and ‘Yes’—those were his two words—and that process had not picked him up. Given the very high rates of hearing loss, you have to wonder about people’s participation in the criminal justice system as being fair and just if in cases like that people simply are not hearing or understanding what is going on.[50]

We also heard instances where the court was made aware of a person’s disability but this was never taken into consideration:

Our daughter was always introduced by the duty lawyer to the Magistrate with the remark “my client is .........., she has an intellectual disability, her parents and guardians are present in the court today”; transcripts from these court hearings indicate that the court was acutely aware of her intellectual disability, yet, her disability was never given due consideration. She was encouraged to enter pleas of guilty when she was overtly unfit to do so.[51]

Styles of communication and questioning were also raised as serious concerns for people who need communication supports or who have complex and multiple support needs. We repeatedly heard that people with cognitive and psychiatric disabilities struggle to understand legal advice, court process and court dialogue, which is filled with jargon and complex statements. The NSW Council for Intellectual Disability reported that people with intellectual disability also have high rates of illiteracy and limited language skills.

Some positive stories were also reported about lawyers treating their clients with disability with dignity and respect and efforts by court officials to ensure understanding:

The current Magistrate grew up around black fellows. He is very understanding. If someone doesn’t understand he will sit and talk to them and break the language down. He is very good.[52]

The court process, and cross-examination in particular, is stressful and difficult for many people. For people with disabilities who have complex or multiple support needs there is an ever-present risk that in the absence of support they will give inconsistent evidence or plead guilty to get the process over.

... he elected just to plead guilty rather than contest the charges. There is absolutely no doubt that if he did not have a mental illness and had to be so mindful of just getting through the process while well enough to enter a plea, he would have defended both charges.[53]

One woman with disability told us: I feel that if you commit a crime you get punished twice: you get punished for the crime and you get punished for having a disability.[54]

Significant concerns were raised about the need for people with disabilities to plead guilty in order to be diverted to alternate courts or lists to secure access to supports and services. The Commission is concerned people may plead guilty or not contest the facts in order to secure needed supports and services. Diversion options are also undermined by a lack of appropriate services, difficulty in coordinating services and limited capacity of services.

However, we also heard of effective outcomes as a result of diversion and access to appropriate supports and services:

[W]hen he was 3, he was injected with heroin and...removed from his mother and moved in and out of foster homes. He did not receive a stable education and his disability was not diagnosed. He came to the attention of the law when he held up Hungry Jacks with a butter knife because he was hungry. An enlightened magistrate chose not to convict him and instead diverted him into a healing service where he was diagnosed with a mild intellectual disability. For the first time in his life, he had a stable home and received an education. He spent 2 years there and now he is a very talented carver with a means of earning an income.[55]

The Commission is extremely concerned about arrangements and processes for people with disabilities deemed unfit to plead. Concerns were raised across Australia about inadequate safeguards and access to supports to ensure effective access to justice. Many people deemed unfit to stand trial are being held without appropriate review mechanisms.

The court found a person unfit to plead and this took 4 months and the person was put in remand. All he did was steal $50.[56]

In their report[57] compiled in parallel with the Commission’s consultations, DLA Piper make the following observations:

In each Australian jurisdiction, the legislation dealing with an accused's fitness to plead or fitness to stand trial in criminal proceedings is complex, and in some respects, ambiguous. The disparity between the legislation applicable in the various jurisdictions further complicates matters.

New South Wales, Tasmania, Victoria and Western Australia have separate legislation dedicated to the issue of fitness to plead or fitness to stand trial. Other jurisdictions deal with the issue within their criminal statutes. In Queensland, the issue of fitness to plead or fitness to stand trial is dealt with in more than one statute.

Further, in most jurisdictions, fitness to plead or fitness to stand trial in the context of summary offences is an issue which is neglected or given little attention. Only South Australia, Tasmania, Western Australia and the ACT allow magistrates to deal specifically with the issue of an accused's fitness. Victoria, Queensland and the Northern Territory do not have legislation dealing with this issue in the context of summary offences. The Commonwealth and Northern Territory legislation does not deal specifically with fitness to plead or stand trial for summary offences and only affords magistrates some discretionary powers when dealing with accused persons who are intellectually disabled.

There is certainly a case for a more streamlined and consistent approach to determining an accused's fitness to plead or stand trial in criminal proceedings for both summary and indictable offences. This would improve access to justice for people with disabilities, particularly intellectual disabilities, whose fitness to plead is likely to be an issue in criminal proceedings. The Victorian Law Reform Commission is currently reviewing the Victorian legislation on fitness to plead or fitness to stand trial in order to determine how the process can be improved and the outcome of this review could act as a catalyst for further legislative reform.

In the Commission’s opinion DLA Piper expose a situation in which the provision of support for people with disabilities is made so much more difficult by the opacity and inadequacy of the law. We are especially disturbed by the situation for people accused of summary offences as the summary jurisdictions are where the great majority of cases involving people with disabilities are finalised.

3.4 Custodial environments and release to the community

The Productivity Commission has described the purposes of corrective services in this way:[58]

Corrective services contribute to the whole-of-government priority, in all jurisdictions, to create safer communities through the administration of correctional sentences and orders. Objectives common to all jurisdictions are outlined below.

  • Provide a safe, secure and humane custodial environment – Corrective services aim to protect the community through the effective management of prisoners commensurate with their needs and the risks they pose to the community.
  • Provide an effective community corrections environment – Corrective services aim to protect the community through the effective management of offenders commensurate with their needs and the risks they pose to the community, and to provide advice services to courts and releasing authorities in the determination of orders and directions for offenders.
  • Provide program interventions to reduce the risk of re-offending – Corrective services aim to reduce the risk of re-offending among prisoners and offenders by providing services and program interventions that address the causes of offending, maximise the chances of successful reintegration into the community, and encourage offenders to adopt a law-abiding way of life.

These objectives are to be met through the provision of services in an equitable and efficient manner.

In consultations the Commission heard that these objectives are met in a piecemeal and unsatisfactory manner for people with disabilities.

Barriers and Gaps

... [it is] quite common for Sisters Inside to meet and work with Aboriginal women in the Townsville Correctional Centre who have no idea what they were charged with or convicted for.[59]

After making their way through the difficult processes of investigation and court proceedings, during which their human rights may have been disrespected and denied, in custodial settings new barriers confront people with disabilities:

  • Essential aids (for example hearing aids) are often removed and supports withdrawn as a form of punishment.
  • Essential medication may be withheld.
  • Inability to participate in programs due to disability and lack of supports or adjustments to programs.
  • Indefinite detention on the basis of disability, without trial or being convicted of a crime.
  • Inhuman and degrading treatment to manage or respond to disability.

The indicators referred to above in Chapter 2 demonstrate proportionately high levels in the criminal justice system of people with disabilities, compounded by the high rates of disability among people with social disadvantage. This has serious consequences for the welfare of prisoners, the capacity of custodial and non-custodial corrections staff to deliver services and the cost to the community of much avoidable incarceration.

While it is known that the level of disability is high in prison populations, many people with disabilities are not identified as having a disability on entry into, or while in, prison. Assessment for disability in prison is patchy and not consistently measured. The Commission heard that even if a person’s disability is identified or known, appropriate support, medication and services are frequently not provided in prison or there is limited follow-up.

They did not understand how important my medication was Dilantin – they didn’t give it to me and I had lots of seizures and had to be taken to hospital.[60]

Sisters Inside reported that incarcerated women may receive the wrong or unsuitable medication. The women are often subject to punishment if they refuse to take this medication, even if they know they are allergic to it or have other adverse physical or psychological reactions to the medication.[61] These problems are compounded by the lack of communication between corrections and health services and the inability of other health care providers to gain access to certain prisoners to provide treatment and support.

Transition accommodation options from prison to the community were also reported as problematic and concerns were expressed that the transition accommodation resembled prisons, was culturally unsafe for Aboriginal and Torres Strait Islander people, and that insufficient effort had been put in to transition people out.

Limited access to communication support and appropriate adjustments for people with disabilities may also result in the inability to participate in health, education, employment, rehabilitation, and pre-release programs in prison. This can lead to social isolation. For example, the Tasmanian Prison Service Strategic Plan Discussion Paper 2011-2020 stated:

Offenders with intellectual disabilities or acquired brain injuries are not able to participate in programmes with the other offenders due to their reduced cognitive functioning.

The inability of prisoners with disabilities to participate in prison programs, and pre-release programs in particular, also appears to result in delays and difficulties for prisoners with disability to leave prison or exit with successful chances of re-integration:

For example, a male with an IQ of 70 convicted of a sex offence and imprisoned was ineligible to participate in a sexual offender treatment program because corrective services only allowed those with an IQ above 85 to complete the course. However, a sex offender who has not completed such a program may be viewed less favourably by the parole board and therefore not placed onto parole. An anti‐discrimination case was made and a program suitable for a person with intellectual disability and tailored to this man’s circumstances was created.[62]

Lack of hearing aids and access to interpreters and independent communication support workers means application for parole may be further compounded. Other factors that make it difficult for people with disabilities to obtain parole are:

  • difficulty for people with disabilities to present their case to the Parole Board
  • denial of legal representation
  • inability to put forward a workable post-release plan.

Negative attitudes and lack of awareness about disability by correctional officers was also identified as a significant barrier. Of more serious concern however were reports of people with disabilities being subjected to a range of harmful practices. For example: being shackled in hospitals, segregation for long periods of time, medical restraint, violence against women, indefinite detention resulting in deterioration of mental health, seclusion tactics for people with psychiatric disabilities and denying family visits or removal of support person as punishment. NAAJA reported one story as follows:

There is a man in detention who is stuck in a single cell for 16 hours a day and if he is allowed out, it is out into the mesh yard. This is outrageous.[63]

Lack of training for correctional officers contributes to this situation.

The indefinite detention of people with disabilities is a persistent issue and of grave concern. The Commission has previously highlighted the case of Marlon Noble, an Aboriginal man who was in prison for over ten years despite never being tried or convicted of any crime. The United Nations Committee on the Rights of Persons with Disabilities recently recommended that the Australian government:

... as a matter of urgency:

(a) End the unwarranted use of prisons for the management of unconvicted persons with disabilities, focusing on Aboriginal and Torres Strait Islander persons with disabilities, by establishing legislative, administrative and support frameworks that comply with the Convention.[64]

We heard the barriers for successful release from prison and reintegration in the community are hampered by a number of factors:

  • People with disabilities are released without long term planning, and in particular no long-term mental health planning
  • The lack of culturally relevant supports
  • The lack of appropriate housing and employment means that many people with disabilities cycle in and out of the criminal justice system

Concerns were raised about the limited transition planning that occurs prior to release. We heard that prisoners in Western Australia are often released with no long term planning for their mental health, accommodation and financial needs, and as a result they are likely to re-offend. We heard that where juvenile justice agencies provide appropriate services to children when they are in their care, these services are no longer available when the children are released.

The Commission was also encouraged to hear positive stories that indicate appropriate supports lead to positive outcomes that limit the cycle through the criminal justice system and its negative consequences:

An Aboriginal man with a mild intellectual disability committed violent offences. We helped him to develop an interest in cultural artwork. He has not reoffended since he developed this interest. He is now engaged with the Department of Human Services, is connected to his family, his community and now puts his artwork on display.[65]

3.5 National Disability Insurance Scheme

The role of the National Disability Insurance Scheme (NDIS) in the criminal justice system was frequently raised during consultations, particularly in relation to early intervention, diversion and post release support. The NDIS commenced on 1 July 2013 and the impact which it may have is difficult to judge based on less than 6 months of 4 trial sites. However, indications suggest that its impact could play an important and positive role.

[20] National Mental Health Commission, A Contributing Life, the 2013 National Report Card on Mental Health and Suicide Prevention, National Mental Health Commission (2013) p 74. At http://www.mentalhealthcommission.gov.au/our-report-card.aspx (viewed 24 January 2014).

[21] Confidential Meeting.

[22] Australian Human Rights Commission Access to Justice Public Meeting, Geelong (10 July 2013).

[23] Victorian Coalition of Acquired Brain Injury Service Providers, Submission 57

[24] Name withheld, Submission 15.

[25] Communication Rights Australia, Submission 73.

[26] Australian Human Rights Commission and University of NSW roundtable: Access to Justice in the Criminal Justice System for People with Disability (22 April 2013); Claire Hansen, Submission 13.

[27] Australian Human Rights Commission Access to Justice Public Meeting, Canberra (26 June 2013); ACT Disability, Aged and Care Advocacy Service, Submission 20; Communication Rights Australia, Submission 73.

[28] Communication Rights Australia, Submission 73; Australian Human Rights Commission Access to Justice Public Meeting, Roebourne (25 July 2013); Name withheld, Submission 3.

[29] ACT Disability, Aged and Care Advocacy Service, Submission 20; Communication Rights Australia, Submission 73.

[30] Disability Advocacy Victoria, Submission 68.

[31] Intellectual Disability Rights Service – Criminal Justice Support Network, Submission 62.

[32] The Deaf Society of NSW, Submission 66; Sister’s Inside, Australian Human Rights Commission Access to Justice Public Meeting, Brisbane (18 June 2013); Deaf Access Victoria, Australian Human Rights Commission Access to Justice Public Meeting, Geelong (10 July 2013); Name withheld, Submission 3.

[33] Confidential, Submission 54.

[34] Name withheld, Submission 3.

[35] Name withheld, Submission 3; The Deaf Society of NSW, Submission 66; Australian Human Rights Commission and University of NSW roundtable: Access to Justice in the Criminal Justice System for People with Disability (22 April 2013).

[36] Professor Martine Powell, Deakin University, Melbourne, Australia.

[37] Meeting with Tasmanian Department of Justice.
[38] Professor Martine Powell, Deakin University, Melbourne, Australia.

[39] Meeting with Attorney General’s Department, South Australia and Law Faculty, University of South Australia.

[40] Meeting with Northern Territory Anti-Discrimination Commission.

[41] Meeting with Katherine Women’s Information and Legal Service (KWILS), Australian Human Rights Commission and University of NSW roundtable: Access to Justice in the Criminal Justice System for People with Disability (22 April 2013).

[42] Meeting with South West Aboriginal Medical Service (SWAMS); NT Community Visitors Scheme (Teleconference); Australian Human Rights Commission and University of NSW roundtable: Access to Justice in the Criminal Justice System for People with Disability (22 April 2013); Confidential, Submission 19; Australian Human Rights Commission, Preventing Crime and Promoting Rights for Indigenous Young People with Cognitive Disabilities and Mental Health Issues Part 1 (2008) pp 12, 41. At http://www.humanrights.gov.au/publications/preventing-crime-and-promoting-rights-indigenous-young-people-cognitive-disabilities-1 (viewed 30 January 2014); Chinese Australian Services Society Ltd, Submission 28.

[43] Meeting with North Australian Aboriginal Justice Agency (NAAJA).

[44] DLA Piper, Background paper on Access to Justice in the Criminal Justice System for People with Disability (2013). At https://www.humanrights.gov.au/publications/background-paper-access-justice-people-disability-criminal-justice-system (viewed 30 January 2014).

[45] Steering Committee for the Review of Government Service Provision, Report on Government Services 2012, Vol 1, Productivity Commission (2012) p 7.29. At http://www.pc.gov.au/gsp/rogs/2012 (viewed 24 January 2014).

[46] Disability Advocacy Tasmania, Australian Human Rights Commission Access to Justice Public Meeting, Hobart (20 May 2013).

[47] Anonymous, Submission 1; Meeting with Judicial Officer of the Supreme Court of Queensland and the Queensland Mental Health Court; Meeting with the Office of the Public Advocate (Queensland), Submission 23; Meeting with Judicial Officer of the Magistrates Court, South Australia.

[48] National Aboriginal and Torres Strait Islander Legal Services, Submission 61; Australian Human Rights Commission Access to Justice Public Meeting, Geelong (10 July 2013); Australian Human Rights Commission Access to Justice Public Meeting, Roebourne (25 July 2013); Confidential, Submission 53; Australian Human Rights Commission Access to Justice Public Meeting, Hobart (20 May 2013); Confidential Submission No. 1; Australian Community Support Organisation, Submission 27; Confidential, Submission 79.

[49] National Aboriginal and Torres Strait Islander Legal Services (NATSILS), Submission 61.

[50] Evidence to the Senate Community Affairs References Committee, Alice Springs, 18 February 2010, p 1 (Tristan Ray). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Completed_inquiries/2008-10/hearing_health/hearings/index (viewed 29 January 2014).

[51] Confidential meeting.

[52] Australian Human Rights Commission Access to Justice Public Meeting, Roebourne (25 July 2013).

[53] Confidential Submission, No. 35.

[54] Australian Human Rights Commission Access to Justice Public Meeting, Melbourne (11 July 2013).
[55] Meeting with the Department of Justice, Victoria.
[56] Australian Human Rights Commission Access to Justice Public Meeting, Darwin (1 August 2013).

[57] DLA Piper, Background paper on Access to Justice in the Criminal Justice System for People with Disability (2013). At https://www.humanrights.gov.au/publications/background-paper-access-justice-people-disability-criminal-justice-system (viewed 30 January 2014).

[58] Steering Committee for the Review of Government Service Provision, Report on Government Services 2012, Vol 1, Productivity Commission (2012) p 8.2. At http://www.pc.gov.au/gsp/rogs/2012 (viewed 24 January 2014).

[59] Sisters Inside, Submission 72.

[60] Victorian Coalition of Acquired Brain Injury Service Providers, Submission 57.

[61] Sisters Inside, Submission 72.

[62] Office of the Public Advocate (Queensland), Submission 23.

[63] Meeting with North Australian Aboriginal Justice Agency (NAAJA).

[64] United Nations Committee on the Rights of Persons with Disabilities, Concluding Observations on Australia, CRPD/C/AUS/CO/1 (2013) para 32(a). At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=883&Lang=en (viewed 30 January 2014).

[65] Meeting with the Victorian Department of Justice Stakeholder Forum.