According to the NSW Law Reform Commission more than a third of people appearing before NSW Local Courts may have a cognitive disability. Susan Beggs explores the sociological risk factors that have put them there.
As of 2016, there are reportedly around 34,000 people incarcerated in Australia’s prisons, with an expenditure of $3.4 billion per year to operate and increase the capacity for the ever growing prison population. Over the last 20 years the prison population has doubled, even though rates of crime have decreased, raising the question – is our justice system working?
Many people believe that the Justice system exists not only to incarcerate people who have committed offences, but also to assist in preventing them from re-offending. Our statistics are not showing this to be the case, particularly for people with a cognitive disability.
Cognitive disability is a term used to describe a person who has an intellectual disability or brain disorder. Many of us know, or have supported someone who has a cognitive disability, whether through the result of a car accident or stroke; leading to a brain injury, or through being born with an intellectual disability such as autism, or Down Syndrome.
Adults with a cognitive disability are over-represented in the New South Wales prison population by a factor of 4x greater than the general population 
Many readers may be shocked to learn, that people with cognitive disability, many of whom are already marginalised within society, are at a higher risk of having contact with the justice system for petty or minor crimes, and also of being incarcerated as a result. These people are more vulnerable to being victims of crime and are less likely to be effectively represented within their rights, which is in stark contrast to Australia’s commitment to adhere to the United Nations Convention on the Rights of Persons with Disabilities. Article 13(1) states:
“States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.”
In Australia, it is reported that there are around 668,100 Australians (2.9% of the population) with an intellectual disability. Overall, the rates of intellectual disability are higher for men (3.3%) than for women (2.6%), with boys in the age range of 0-14 years being twice as likely to have an intellectual disability than girls within this age group.
People with cognitive disabilities are more likely to be arrested, questioned and detained for minor public order offences.
People with cognitive impairment are often confused with those with a mental disorder and are less recognised as an overrepresented and vulnerable group in prison. Generally, cognitive impairment is often merged in law with mental health impairment; that is, people with cognitive impairment usually have been dealt with under mental health legislation. Many staff in criminal justice agencies are unsure of what cognitive impairment is and there is under recognition of the need for special support for this group.
People with a brain injury also seem to be substantially overrepresented in the prison population. A Victorian study found that 42% of male prisoners and 33% of female prisoners had a brain injury, compared to 2% of the general population of Australia.
Similarly, the Standing Committee on Law and Justice of the NSW Legislative Council noted that people with intellectual disabilities are overrepresented in the criminal justice system.
The Committee saw this as flowing from the interplay of the vulnerability of people with intellectual disabilities and the lack of social support for them. The Committee’s chairman, the Hon Ron Dyer, elaborated on this in a journal article. He pointed to the “failure of government agencies to respond to the challenge of supporting people with often difficult behaviour in the community”. He saw difficulties in the adequacy of funding, in the support provided to individuals and in coordination between criminal justice and human services agencies, which has become an imperative issue under the National Disability Insurance Scheme.
Often people with a disability are seen as being “problematic” or “non-compliant” which can lead to unhelpful stereotyping and create negative self-images. Understanding that there are sociological risk factors, which increase a person’s risk of coming into contact with the justice system, enables society to look deeper into the meaning of what we call “behaviours of distress” and “offending behaviours”.
Factors which increase the risk of contact with the justice system
The trajectories to the justice system are often due to a lack of support services, including specialist disability services, drug and alcohol services and general social services such as housing and income support.
It is important to note that Aboriginal and Torres Strait Islander peoples are grossly overrepresented in the justice system and in prisons in particular, where they make up 27% of the prison population. They are also 13 times more likely than non-Aboriginal and Torres Strait Islander Australians to be incarcerated.
Aboriginal people’s first contact with police is 3.4 years younger than non-Aboriginal people. Aboriginal people come into contact with the police at a younger age, and also have higher rates of contact with the justice system than non-Aboriginal people.
Cognitive impairment is also more common amongst Aboriginal and Torres Strait Islander populations than other Australians; for example, ABS data indicates that 8% of Aboriginal and Torres Strait Islander Australians have an intellectual disability compared with 2.9% of the general population. Research indicates that Aboriginal and Torres Strait Islander people with cognitive impairment are more likely to come to the attention of police, more likely to be charged, and are more likely to be imprisoned; spend longer in custody; have few opportunities for program pathways when incarcerated; be less likely to be granted parole and have substantially fewer options in terms of access to programs and treatments than Aboriginal and Torres Strait Islander people without cognitive impairment.
Notably a lack of access to appropriate education can increase risk of contact with the justice system. It has been reported that between 60-70% of young people with complex support needs, left school with no qualifications. School education is a vital opportunity for support, intervention and promoting positive outcomes for young people. Many people who come into contact with the justice system are usually not identified as having a cognitive disability until they are already in the Justice system. This highlights the need for assessment of cognitive disabilities within our school aged children and young people, to identify and respond to their support needs in the learning environment, and ultimately promoting their participation at school to reduce their risk of coming into contact with the justice system.
Children and young people in out-of-home care are significantly more likely than their peers to have earlier police contact, an increased number of police contacts over time and more custodial episodes within their lifetime. Over the past fifteen years the number of children and young people entering and remaining in statutory out-of-home care (including relative/kinship care, foster care and residential care arrangements) has more than doubled.
As of 2016 there were more than 44,000 Australian children in out-of-home care, with Aboriginal and Torres Strait Islander children and young people reportedly being almost ten times more likely to be placed in out-of-home care than their peers. Research examining 111 NSW Children’s Court files, found that 34% of young people appearing before NSW courts had been in out-of-home-care, and that children and young people in care are 68 times more likely to appear in Children’s Court than other children and young people. With an ever growing number of children and young people in statutory care who will at some stage in the near future be leaving care, this highlights the concern about their pathway to the justice system, based on previous findings.
People with complex support needs are 6.25 times (even higher for Aboriginal and Torres Strait Islander people) more likely to be homeless than those without disability. Whilst research findings are not conclusive, numerous qualitative studies have reported people experiencing homelessness whilst also being in contact with the justice system. Disability supported appropriate long term housing must be available from early in a person’s life to prevent incarceration and provide post-release support.
What does this mean for the future?
Throughout the country there are passionate people coming together, to address the need for change in our justice system. Innovative approaches to supporting people who have offended are being piloted for effectiveness such as the Justice Reinvest project in Bourke.
According to the Australian Human Rights Commission, justice reinvestment is ‘a powerful crime prevention strategy that can help create safer communities by investing in evidence based prevention and treatment programs’. Justice reinvestment diverts a portion of the funds for imprisonment to local communities to reinvest into services that address the underlying causes of crime in these communities.
The analysis of justice reinvestment both in Australia and overseas suggests that this approach is more effective than the current approaches to justice. Justice reinvestment invests in people and communities to provide support, treatment and services that address the underlying issues confronting people who commit less serious offences. These issues include homelessness, mental health, deep social exclusion, and poor education and employment histories. Evidence suggests that it is more efficient and effective to address the causes and thus reduce the need for (and greater cost of) incarceration.
Without reform and acknowledgement that our system is just not supporting vulnerable people in society, who are at greater risk of contact with the justice system, Australia will continue to require substantial amounts of state and federal funding to operate and manage an increasing prison population, with poor outcomes in assisting people from re-offending.
We need to recognise that a one size fits all approach to justice does not work. People with cognitive disability need the justice system’s response to be person-centred, looking at the most effective ways to divert them from the system, through early identification of cognitive disability, culturally sensitive assessment and intervention.
What we can do to assist…
Know the legislation and ensure that the people we support know their rights, have access to support, and information is communicated for all levels of comprehension which is vital for diversion from the Justice system.
A Section 32 Order pursuant to the Mental Health (Forensic Provisions) Act 1990 NSW (‘MHFPA’) is a way for the Local Court to divert people with particular conditions who have been charged with a criminal offence out of the justice system. A Magistrate’s powers are inquisitorial rather than adversarial in nature and the Magistrate can inform themselves in any way they see fit without requiring the defendant to incriminate him or herself.
Applications for a Section 32 are generally made orally, with Magistrates often only relying on written reports from experts and service providers, meaning there is generally no need for the applicant to give evidence. For further information or support you can contact the Intellectual Disability Rights Service on – Free Call 1800 666 611 or by visiting www.idrs.org.au.
Collaborate through the Disability Justice Project (DJP). The DJP is a two-year capacity building project, funded by ADHC (Ageing, Disability and Home Care). The project is being managed by ACWA (Association of Children’s Welfare Agencies) through its training arm CCWT (Centre for Community Welfare Training) in partnership with Life Without Barriers (LWB) and Intellectual Disabilities Rights Service (IDRS).
The project offers a range of free training courses, links to resources and support through 16 Communities of Practice groups for government and non-government service providers across NSW. The aim of the project is to ensure that service users are able to exercise their rights under the law, through professional development of staff within the sector who provide support to people with cognitive disabilities who are at risk of, or in contact with the justice system. To find out more about the FREE training available across NSW, or to participate in one of the 16 Community of Practice groups go to the DJP webpage at www.disabilityjustice.edu.au/.
Susan Beggs is the Project Manager NSW/ACT at Life Without Barriers and is a member of the Disability Justice Project. The views expressed are those of the author and not of LWB.
 Synapse NSW define this as a disruption of normal brain functioning due to disease, trauma or genetics conditions.
 Reported in an empirical study The Prevalence of Intellectual disability in the New South Wales Prison Population.
 According to an empirical study The Prevalence of Intellectual disability in the New South Wales Prison Population
 Baldry & Cunneen (2014)
 Snoyman (2010)
 IDRS (2008)
 Baldry et al. (2011)
 Australian Bureau of Statistics (2014)
 ABS (2011)
 ABS (2012)
 Victorian Legal Aid (2011)
 Hunyor & Swift (2011)
 Martin (2011)
 Victorian Legal Aid (2011)
 Rushworth (2011)
 Sotiri, McGee & Baldry (2012)