Criminal justice - Volume 8

Justice setting

The DRC recommendation

State and territory governments should uphold the rights of people with disability who are in custody. Consistent with article 14 of the Convention on the Rights of Persons with Disabilities, all corrective service and youth justice agencies should provide people with disability with the disability supports they require to place them in the same position, so far as feasible, as other people in custody.

The DRC recommendation

In implementing the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Australian Government, in consultation with the state and territory governments, should support the development of a human rights education and training strategy that includes disability awareness training for National Preventive Mechanisms (NPMs), detention authorities and their staff. NPMs should:

• engage with disability organisations about the needs of people with disability in places of detention
• obtain training and education for their staff on the types of disability and needs of people with disability in places of detention, including the impact of intersectional disadvantage
• obtain the views of people with disability in places of detention by directly engaging with them about their experiences in places of detention
• have effective mechanisms for obtaining the views of people with disability in places of detention.

The DRC recommendation

States and territories should:

a) introduce legislation to prohibit solitary confinement in youth justice settings (being the enforced isolation or segregation for any purpose of a child or young person for 22 or more hours in any day)

b) introduce legislation to prohibit the use of isolation (however described) in youth detention centres as punishment in any circumstance

c) review legislation, policy and procedures to ensure children with disability are not subjected to isolation practices amounting to solitary confinement

d) ensure legislation authorising isolation (including lockdowns) in youth detention centres provides for its use:

• as a temporary response to behaviour that poses a serious and immediate risk of harm to an individual
• as a last resort after all other measures to address risk have been exhausted
• for a period that must not exceed a specified number of hours in any day

e) ensure legislation authorising isolation (including lockdowns) in youth detention centres provides at a minimum the following protections for children with disability:

• a requirement to take into account the child’s disability needs before any isolation period is authorised
• meaningful human contact during the period of isolation
• access to the community equivalent standard of health care, including mental health services during the period of isolation
• regular review of the order and circumstances authorising isolation
• the creation and keeping of detailed records relevant to the period of isolation and the provision of a copy of such records to the relevant body with independent oversight of places of detention (such as the Inspector of Custodial Services).

The DRC recommendation

State and territory governments should ensure timely screening and expert assessment are available for individual children with cognitive disability involved in the criminal justice system (including, but not limited to, detention settings) and that they receive appropriate responses, including therapeutic and other interventions.

The DRC recommendation

State and territory governments should ensure staff and officials in youth detention centres at all levels receive appropriate initial and ongoing training and support in relation to the needs and experiences of children with disability. This includes training and support on trauma-informed care and culturally appropriate and gender responsive approaches to children with disability in detention.

The DRC recommendation

The Department of Justice of Western Australia should immediately review its youth justice staffing and recruitment model to ensure sufficient, suitably trained staff are available to supervise children and young people to minimise lockdowns and prevent the solitary confinement of detainees. This should include developing and implementing a recruitment and retention strategy that:

• addresses high staff attrition rates in youth detention
• promotes representation at senior management level of staff with disability and First Nations backgrounds
• includes measures to help staff access mental health support.

The DRC recommendation

The Department of Justice of Western Australia (through the Corrective Services Division) should:

• immediately cease confinement practices at youth detention centres amounting to solitary confinement of children with disability
• ensure decisions leading to the isolation of children with disability are made in conformity with legal requirements
• implement a new operating philosophy and service model to manage detainees with disability in a therapeutic, non-punitive, non-adversarial, trauma-informed and culturally competent way
• ensure the operating philosophy and implementation plan are developed in conjunction with people with disability and First Nations people
• release a clear timeline for publication of its new operating philosophy and service model for youth detention in Western Australia and the associated implementation plan
• raise awareness at every level of staff in the youth detention centres concerning the support needs of people with cognitive disability and foster respect for the rights of people with disability
• ensure lawyers representing detained clients are allowed adequate time and assured of confidentiality at youth detention centres to take instructions, especially where their clients have cognitive disability.

The DRC recommendation

The Western Australian Government should introduce and support legislation amending the Inspector of Custodial Services Act 2003 (WA) to provide the Inspector with a discretion to demand a response from the department or other relevant agency, within a specified time, to recommendations of the Inspector included in a report to Parliament. This should include the steps (if any) taken by the agency in response to the recommendations and an explanation of why steps have not been taken (if that be the case).

The DRC recommendation

The New South Wales Government should review existing policy regarding the use of seclusion for adults with cognitive disability in the Justice Health and Forensic Mental Health Network, including the use of clearly designated authorisation and mandatory clinical and administrative review.

The DRC recommendation

The Northern Territory Government should provide supported step-down accommodation in community-based settings for people with disability subject to custodial supervision orders.

The DRC recommendation

The Commonwealth, state and territory criminal justice systems should provide information about seeking or making adjustments and supports and services for people with disability, and the circumstances in which they may be required. This information should be made available to judicial officers, legal practitioners and court staff, including through practice notes or bench books.

The DRC recommendation

The Australian Government, together with state and territory governments, should review the National Statement of Principles Relating to Persons Unfit to Plead or Not Guilty by Reason of Cognitive or Mental Health Impairment (National Principles) through the Standing Council of Attorneys-General.

• The National Principles should be revised to include the following:
• Indefinite detention is unacceptable and laws providing for it should be repealed.
• Where an order for detention is made, there should be a maximum term of detention nominated beyond which the person cannot be detained (a ‘limiting term’).
• The limiting term should not exceed the court’s assessment of the sentence it would have imposed on the defendant had the person been found guilty of the offence in an ordinary trial of criminal proceedings.

In hearings conducted to determine a person’s fitness to stand trial or to plead, the court must consider whether it can modify the trial process or ensure assistance is provided to facilitate the defendant’s understanding and effective participation in the proceedings. This includes any cultural or other trauma-informed supports a First Nations defendant may need to ensure the defendant can participate in a fair trial and understand the proceedings.

The Standing Council of Attorneys-General should agree to a timetable for implementation of reforms identified in the review of the National Principles.

The Commonwealth, states and territories should amend their legislation on fitness to stand trial to align with the revised National Principles.

The Australian Government, and state and territory governments, should build their capacity to provide step-down options, including medium and low secure and community-based accommodation options, for the placement of people in the forensic system to facilitate their progressive transition to less restrictive environments.

Why we support with safeguards

Proactive steps, including implementation of Positive Behaviour Support (PBS) approaches, should be required to ensure people are fully supported to successfully re-enter community life. Where a person is assessed to continue to pose a threat to the community, similar provisions as those for high-risk offenders should apply.

The DRC recommendation

The Australian Government and 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. The data collected should include:

• the number of people under forensic orders in their jurisdiction
• the number of people under orders for detention and the numbers subject to:
  • indefinite periods of detention
  • limiting terms (or equivalent)
  • orders extending their order for detention
• the number of people under orders for detention by sex, disability, disability type and First Nations status
• the number of such people detained in:
  • an adult correctional facility
  • a youth detention facility
  • a forensic mental health or forensic disability facility
  • a general psychiatric unit.

The DRC recommendation

State and territory corrective services, youth justice agencies and justice health agencies, through the Corrective Services Administration Council and equivalent youth justice bodies, should develop national practice guidelines and policies relating to screening for disability and identification of support needs in custody. People with disability, including with lived experience of the criminal justice system, and people with expertise in cognitive disability should be involved in the design of the guidelines and contribute to the approaches to implementation. The guidelines and policies should:

• explain the essential elements of screening and assessment for people with disability, including a trauma-informed approach to identifying disability and the person’s needs
• reduce reliance upon self-disclosure as the primary means of disability identification following admission of a person with disability to custody
• require screening upon reception into custody or shortly thereafter both for prisoners and detainees who have been sentenced and for those on remand
• promote the consistent collection of data and its use to inform system-wide responses
• encourage the development and use of culturally safe disability screening tools that address the particular needs of First Nations people with disability
• encourage the development and use of disability screening tools that are culturally appropriate for people with disability from culturally and linguistically diverse communities
• encourage investment in initial and ongoing training, education and support of staff about disability identification and awareness
• encourage collaborative practices including the engagement of clinicians to conduct assessments to identify the support needs of a person with disability in custody
• require the identification of a disability or impairment to be matched with appropriate support while in custody
• promote the use of screening outcomes to develop plans for prisoners and detainees transitioning to the community
• contribute to appropriate information sharing among agencies including court-based assessments and reports.

The DRC recommendation

State and territory governments should ensure that policies and practices concerning screening, identification and diagnosis of disability in respect of people with disability in custody are consistent with the national practice guidelines.

The DRC recommendation

State and territory corrective service and youth justice agencies and justice health agencies should engage First Nations organisations, including Aboriginal Community Controlled Health Organisations, to provide culturally safe disability screening and assessment services for First Nations prisoners and detainees.

The DRC recommendation

Through the Disability Reform Ministerial Council, the Australian Government and state and territory governments should:

• review the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) and the Applied Principles and Tables of Support (APTOS) and operational guidelines to align and provide clear parameters in determining which supports will be funded by the National Disability Insurance Scheme (NDIS) for participants involved in the criminal justice system
• resolve issues related to the interface between the NDIS and the criminal justice system, particularly the distinction between ‘criminogenic-related supports’ and ‘disability-related supports’
• where such issues cannot be resolved, agree on a mechanism for joint-funding of individual supports.

Why we think this recommendation should be revised

After the release of the Disability Royal Commission Final Report, the NDIS Review recommended the Applied Principles and Tables of Support (APTOS) should be replaced with a multilateral schedule to a new Disability Intergovernmental Agreement. We acknowledge the problem underpinning this DRC recommendation but believe it should be superseded by the NDIS Review recommendation.

The DRC recommendation

The National Disability Insurance Agency (NDIA) should issue guidelines stating expressly that a release date is not a precondition for approving funding for transitional supports for participants in custody. The NDIA’s Justice Operational Guidelines and internal practice guides should be amended to make this clear.

Policing

The DRC recommendation

The Disability Discrimination Act 1992 (Cth) should be amended to expressly include ‘services provided by police officers in the course of performing policing duties and powers’ in the definition of ‘services’ in section 4.

The DRC recommendation

The Australian Government and state and territory governments and police services should collaborate with people with disability in the co-design, implementation and evaluation of strategies to improve police responses to people with disability.

All police services should introduce adequate numbers of dedicated disability liaison officers.

The Australian Government and state and territory governments should introduce an alternative reporting pathway for people with disability to report crimes to police.

Why we partially strongly support

Alternative accessible and inclusive pathways to report crimes should be available to all members of the community. Practices and training regarding how police respond to reports via existing and new pathways should be significantly improved, particularly in relation to family and gender-based violence.

The DRC recommendation

The New South Wales, South Australian, Victorian and Western Australian governments should review and fund their existing court-based diversion programs for people with cognitive disability charged with offences that can be heard in local or magistrates’ courts to ensure the programs:

• are accessible and culturally appropriate, particularly in regional and remote areas
• provide support for defendants to access the National Disability Insurance Scheme (NDIS)
• satisfy service needs, including connecting defendants to appropriate education, housing, employment and other services.

The Australian Capital Territory, Northern Territory, Queensland and Tasmanian governments should develop and fund court-based diversion programs for people with disability charged with summary offences in local or magistrates’ courts which:

• are accessible and culturally appropriate, particularly in regional and remote areas
• provide support for defendants to access the NDIS
• satisfy service needs, including connecting defendants to appropriate education, housing, employment and other services.

All states and territories should commission independent evaluations of their diversion programs. Any evaluation should assess and, where feasible, quantify economic and social benefits for both individual defendants and the community as a whole.

The DRC recommendation

States and territories that have not already done so should introduce legislation to raise the minimum age of criminal responsibility to 14.

Violence against women and children

The DRC recommendation

The Australian Government and state and territory governments should develop a five-year Action Plan for Women and Children with Disability to accompany the National Plan to End Violence against Women and Children 2022–2032. The Action Plan should:

• be developed by and for women with disability
• prioritise cohorts at greatest risk of violence
• coordinate with other relevant plans and strategies, in particular the forthcoming Aboriginal and Torres Strait Islander Action Plan and Australia’s Disability Strategy 2021–2031.

The Action Plan should include comprehensive actions and investment to address violence experienced by women and children with disability across the focus areas of:

• prevention
• early intervention
• response
• recovery and healing.

The DRC recommendation

In working towards nationally consistent, inclusive definitions of gender-based violence under the National Plan to End Violence against Women and Children 2022–2032, states and territories should amend their legislative definitions of family and domestic violence to include:

• all relationships in which people with disability experience family and domestic violence, including but not limited to carer and support worker relationships
• disability-based violence and abuse
• all domestic settings, including but not limited to supported accommodation such as group homes, respite centres and boarding houses.

The Family Law Act 1975 (Cth) and any relevant state and territory laws should also be amended consistently with this recommendation.