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Criminal justice terms

Disability Royal Commission hearings sometimes use terms that most Australians aren’t very familiar with. We’re keeping a list of these and trying to explain them in plain language. Please feel free to email us at comms@pwd.org.au if you have suggestions for words that should be included.


Cognitive Impairment Diversion Program (CIPD): A 2-year pilot program funded by the NSW government’s NDIS transition fund to support people with cognitive impairment through the court system. The program was run by the NSW Department of Justice and IDRS. Witnesses at the Disability Royal Commission hearing on the criminal justice system spoke very favourably of the program, but its funding had not yet been renewed at that time.

Criminalisation: Most often used to describe changing the law so that something that used to be legal becomes illegal.

People might also criminalise behaviour on the spot by interpreting someone’s disability-related behaviour as deliberately breaking the law. For example, when someone has a seizure and is not in control of their body movements, police might assume they are drunk and being violent.

Badly written laws, combined with ableist, racist or otherwise prejudiced attitudes, can end up criminalising a whole group of people, so that things like symptoms, or cultural or religious practices, can get people in legal trouble (either through active police harassment or other people calling the police about it).

Custodial and non-custodial supervision orders:

If someone who is accused of a crime is deemed unfit to plead, or found not guilty by reason of mental impairment, a supervision order may be put in place by a court.

A custodial supervision order means that a person is held in a secure facility, like a forensic disability unit or forensic hospital, and can be given compulsory mental health treatment.

A non-custodial supervision order means that a person can still live in their own home in the community, but under certain conditions set by the court, which may include compulsory mental health treatment.

Forensic hospital/Forensic Disability Unit: If someone who has comitted a crime is deemed unfit to pead, or found not guilty by reason of mental impairment, they may be held in a forensic hospital or forensic disability unit.

These facilities are supposed to provide care for forensic patients and support to re-enter the community, however, at the Disability Royal Commission hearing dedicated to the criminal justice system, witnesses spoke about use of physical and chemical restraints and isolation in forensic hospitals. Witnesses also spoke about a lack of viable pathways for many forensic patients to reenter the community, and the risk of indefinite detention.

Forensic patient: A forensic patient is someone who has comitted a crime and been deemed unfit to be plead, or found not guilty by reason of mental impairment, who has been given a custodial supervision order and ordered to live in a forensic hospital.

Jurisdiction: The area where a government body (like a court or tribunal) can make decisions. The area might be geographic (like a state court that can only decide about laws in the state of Victoria), or by topic (like a tribunal that can only make decisions about tax law).

Office of the Public Guardian: The official department which may be given authority over a person’s legal and health decisions if they are considered to be without legal capacity (see legal capacity and guardianship terms).

In the context of the Disability Royal Commission hearing on the criminal justice system, public guardians were asked to speak about the conditions their clients were experiencing in forensic hospitals.

Procedural: Anything relating to the official way that things are arranged to be done. For example, there might be a rule or plan (called a procedure) that tells people what order they are supposed to speak in at a court hearing. If someone speaks outside of their turn, this is a procedural issue.

Unfit to be tried: A person who has been accused of a crime may be deemed unfit to be tried if they are considered unable to understand trial proceedings at the time that the trial is to be held. It may not be reflective of a person’s mental state at the time a crime was committed. If someone accussed of a crime is deemed unfit to be tried they may be placed under a supervision order. If they are then held in a forensic hospital or otherwise detained, the Attorney-General must, at least once every six months, consider whether or not they should be released  based on medical or other reports.

Unfit to plead: A person who has been accused of a crime can be deemed unfit to plead if they are considered unable to understand the nature of the crime or the court procedings due to intellectual, cognitive or mental impairment.

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