Criminal justice system

The Disability Royal Commission made several findings and recommendations on the criminal justice system.  

While the Final Report does not include any autism specific recommendations to improve access to criminal justice, it does include some findings and recommendations with specific relevance to people with cognitive, psychosocial, and intellectual disability. These may be of particular interest and relevance to some members of the autism community. These findings were informed by evidence from Autistic people and their families and supporters.  

For an Easy Read version of the Commission’s report on ‘Criminal justice and people with disability,’ visit here.  

What the Commission found

• People with disability – particularly those with cognitive disability – are disproportionately represented in criminal justice settings, across all stages, from police contact and arrest, through to court processes and correctional settings.
• People with disability, particularly cognitive disability, are exposed to frequent and intense policing.
• There is no data on how many people, deemed unfit for trial by reason of cognitive or mental health impairment, are held in custody around Australia.
• People with psychosocial or cognitive disability, and First Nations people with disability are the most likely to be victims of crime.
• Screening for and identification of disability are important for all people with disability who encounter the criminal justice system, however they have particular significance for people with cognitive or psychosocial disability.

What the Commission recommended

1. Recommendation 8.4: Provide timely screening and expert assessments for children with cognitive disability involved in the criminal justice system and ensure they receive appropriate responses, including therapeutic and other interventions. 
2. Recommendation 8.12: Revise the National Statement of Principles Relating to Persons Unfit to Plead or Not Guilty by Reason of Cognitive or Mental Health Impairment, including to: 
   • Prohibit indefinite detention. 
   • Require nomination of a maximum term beyond which a person can’t be detained (and not exceeding term person would have faced if guilty of offence)
   • Ensure assistance is provided to facilitate the defendant’s understanding and effective participation in the proceedings (including any cultural or trauma-informed supports a First Nations defendant may need to ensure the defendant can participate). 
   • Ensure this cohort is in the least restrictive environment possible. 
3. Recommendation 8.14: Co-design national practice guidelines and policies relating to screening for disability and identification of support needs in custody (the guidelines should require the use of culturally appropriate screening tools for First Nations people).
4. Recommendation 8.16: Co-design culturally safe disability screening and assessment services for First Nations prisoners and detainees. 
5. Collect and publish data relating to people found unfit to plead, or not guilty by reason of cognitive or mental health impairment, broken down by disability type, sex and First Nations Status. See page 286.
6. Recommendation 8.21: Review diversion programs for people with cognitive disability from criminal settings.

To read the Commission’s final report in full on ‘Criminal justice and people with disability’, visit here. 

Some of the lived experience stories shared by the autism community

• Taylor, a 26-year-old Autistic woman, spoke about her experiences with police, the courts and prison system, including her experience of being detained and sexually abused in a facility that predominately supported women with mental health conditions and was ill-equipped to meet the support needs of Autistic women. Taylor spoke about the importance of professionals and staff across the criminal justice system understanding autism and how to support Autistic people. She also spoke about the importance of programs to divert people with cognitive disability away from the criminal justice system and into appropriate community-based services. 
• Kathy, a social worker, provided expert evidence regarding the difficulties of women fleeing family violence with Autistic children who may be overwhelmed in noisy and crowded communal living spaces. She gave evidence that these women can rarely stay for the amount of time needed to find further accommodation. Despite the threat of violence, they are more likely to return home to alleviate distress to the family and provide familiarity and certainty to their children. 
• Tina, the mother of an incarcerated Autistic man, gave evidence about her son’s mistreatment and the impact autism had on his ability to communicate his mental health needs.   
• Terry, the mother of an Autistic man, gave evidence that her son’s autism made him vulnerable to poor influences, being taken advantage of and eventually entering the criminal justice system. She also gave evidence about his experiences of mistreatment and abuse in detention and inadequate complaints mechanisms.    

Do you need more information or support?

If you would like more information about these findings or recommendations or have any questions about the Commission or its report, we encourage you to contact Your Story Disability Legal Support on 1800 77 1800, online here or by email here.   We appreciate that reading this page and hearing the lived experience stories shared may raise mixed emotions and cause anxiety or distress for many people. If you, or someone you know, needs support, the following services are available.

• National Counselling and Referral Service at Blue Knot – 1800 421 468 or visit the website.
• Beyond Blue 24/7 Support – 1300 224 636 or visit the website.
• Lifeline 24/7 Crisis Support – 13 11 14 or visit the website.
• 1800 Respect – 1800 737 722 or visit the website.
• Disability Gateway – 1800 643 787 or visit the website.
• 13 YARN – 13 92 76 or visit the website.
• If you or someone you know is in immediate danger, contact triple zero (000).