The criminal justice system

A number of Disability Royal Commission hearings so far have looked into issues related to the criminal justice system.

If you’re not sure about some of the language being used, see if it’s in our Jargon Buster. Specific pages that might come in handy:

• Criminal justice terms
• NDIS terms
• Legal capacity and guardianship terms

We’ve published several community member guest blogs by people with disability about their experiences with the criminal justice system:

• “First Nations People With Disability And The Criminal Justice System” – Part 1 and Part 2
• “My experiences have taught me not to trust the police”

You can find out more about related past hearings below – or skip down to learn more about where we stand on criminal justice.

There were also criminal justice issues discussed during part of the hearing on abuse in public places.

Public hearings about the criminal justice system

The Disability Royal Commission held Public hearing 11 on “the experiences of people with cognitive disability in the criminal justice system” in Brisbane from Tuesday 16 to Thursday 25 February, 2021. You can find a transcript, video with Auslan interpretation and various documents mentioned in the hearing on the official Disability Royal Commission website.

You can check out our Twitter commentary here: Tuesday 16, Wednesday 17, Thursday 18, Friday 19, Monday 22, Tuesday 23, Wednesday 24, Thursday 25 (you may occasionally need to click or tap the final tweet shown to see the rest of the thread).

The Royal Commission held a follow-up public hearing, Public hearing 15, in Brisbane on Thursday 12 & Friday 13 August 2021 to ask government officials about the interface between the criminal justice system and the NDIS, and how it affects people with cognitive disability. You can find a transcript, video with Auslan interpretation and various documents mentioned in the hearing on the official Disability Royal Commission website.

Check out our Twitter commentary here: Thursday & Friday. You may need to click “show replies” or the final tweet in the thread to load up the rest of the tweets.

Public hearing 27 looked into conditions in detention in the criminal justice system from 19 – 23 September 2022, excluding the public holiday on 22 September. The final day of the hearing will be held virtually on 6 October. Transcripts, video with Auslan interpretation and various documents mentioned in the hearing will be available shortly on the official Disability Royal Commission website.

You can check out our Twitter commentary here: Monday, Tuesday, Wednesday, Friday and the extra day on October 6. You may occasionally need to click or tap the final tweet shown to see the rest of the thread.

If you’re not sure about some of the language being used in these hearings, see if it’s in our General Jargon Buster or the specific Criminal Justice Jargon Buster.

Where we stand on criminal justice

PWDA supports the recommendations of the United Nations Convention on the Human rights of People with Disabilities (CRPD), which Australia is a signatory to. Here are some relevant CRPD articles:

• Article 12 – Equal recognition before the law
• Article 13 – Access to justice
• Article 14 – Liberty and security of person
• Article 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment – see also the Convention Against Torture

People with disability have negative experiences with the criminal justice system both as victims and witnesses of crime, and as accused and convicted offenders.

Incidents of violence and abuse against people with disability are often not considered crimes by police and lawyers, meaning that we don’t have access to justice and redress.

This happens for many reasons, like stigma against people with disability, people with disability not being believed when we speak up against crimes committed against us, a lack of disability awareness in our justice systems and failure to acknowledge people with disability as reliable witnesses.

We have heard during many Royal Commission hearings about support workers who abuse, neglect, assault and exploit someone with disability being disciplined “in house” by service providers, when the same action against anybody else would be considered a crime.

People with disability are more likely to experience multiple episodes of abuse because perpetrators are unlikely to be caught or punished. We are less likely to get help from domestic and family violence services because they don’t get funding for accessibility work. This particularly affects women and children with disability, but all people with disability are more likely to be targets of domestic and family violence.

People with psychosocial and/or cognitive impairment are vastly overrepresented in the criminal justice system. We are three to nine times more likely to be imprisoned than people without disability.

At Public Hearing 11, Dr Mellifont, Counsel Assisting the Royal Commission, asked:

“Is the justice system being used as a de facto disability service, one that proceeds by punitive rather than therapeutic measures?”

The evidence says yes. Instead of funding support and early intervention for people whose disability affects their behaviour, our government leaves them to struggle until they end up breaking the law, and then locks them up and forgets about them.

We need:

• Holistic prevention programs to end the incarceration of people with disability. Programs to address issues like the lack of early intervention and specialist disability support must be developed with the input of people with disability, and coordinated with NDIS.
• A National Disability Justice Strategy to identify and do something about the legislative, policy and practice barriers that stop people with disability from seeking and achieving redress through the justice system; and that addresses the over-representation of people with disability in the criminal justice system.
• Enhanced practice and prevention measures to end violence and abuse experienced by people with disability. That means comprehensive and ongoing training and development to embed disability awareness and a human rights approach in the practices of first responders to victims of violence, including police, community and social workers, carers, health care professionals, disability service staff, and people working in the criminal justice system.

For more information:

Australian Human Rights Commission: Equal before the law – Towards Disability Justice Strategies, 2014

Pro Bono News: Advocates say justice gap must be closed for people with disability

PWDA’s Engage-In project has produced a research report with Sydney University on effective advocacy approaches to help people in institutional settings like prisons get access to NDIS and other support.

Disability Royal Commission Issues Papers:

• Criminal justice system
• Violence and abuse of people with disability at home

The Royal Commission has also published a research report on police responses to people with disability, available with Easy Read and Auslan translations. Plus, read our blog post summarising the report.

The DRC’s latest report looks at people with disability transitioning from prison and their pathways into homelessness.