Specific data is hard to come by, but Scott Avery says there are estimates that up to 80 per cent of Aboriginal and Torres Strait Islander people who come into contact with the justice system have some form of disability. The injustice of that was laid bare recently in the case of Roseanne Fulton, who was kept in custody after the West Australian court system declared her unfit to be tried on driving offences.
In this article for Croakey’s #JustJustice project, Avery – who is Policy and Research Director at the First Peoples Disability Network (Australia) – says the implementation of the National Disability Insurance Scheme offers a new opportunity to divert people from unwarranted incarceration to supported disability programs.
He asks: can one national-building social initiative be the catalyst for significant social change in another?
The impact of disability on all social outcomes is not well understood, and policy responses coming from a disability perspective have largely been avoided to date, not least in the criminal justice area, where large numbers of Aboriginal and Torres Strait Islander people with disability are languishing in prison when they could be justly, and more effectively, supported on a disability program.
The Australian Human Rights Commission Report, Equal Before the Law: Towards Disability Justice Strategies (2014), identified a number of ways through which people with disability are inhibited in accessing their rights to a just justice. These start with negative attitudes and assumptions about people with disability that affect how they are treated right through the justice system, from policing to judicial administration and conditions in prison.
Furthermore, community support programs to prevent violence and disadvantage do not necessarily exist for people with disability, and awareness and understanding of the specialist needs for people with disability to defend criminal matters are rare commodities. For Aboriginal and Torres Strait Islander people with disability, these barriers are magnified as they confront barriers related to their Aboriginality as well as their disability – in effect a ‘double discrimination’.
The phrase ‘game-changer’ gets thrown around a bit, but the implementation of the National Disability Insurance Scheme (NDIS) would well be one when it comes to the opportunity to structurally alter the entry points of the justice system. As a national initiative to improve the rights of people with disability, the NDIS is designed to provide the social supports affecting the quality of life for a person with disability, encompassing disability services, education, employment and even social housing. This sounds very much like a social determinants approach to Indigenous Affairs. So the question is, can one national-building social initiative be the catalyst for significant social change in another?
It is estimated that one in two Aboriginal and Torres Strait Islander people have a disability or long-term health condition, with 8 per cent having a disability that is profound or severe. Specific data on Aboriginal and Torres Strait Islander people with disability in prison is hard to come by. Nonetheless, many legal services advise that up to 80 per cent of Aboriginal clients could have some form of disability, once mental health conditions and trauma are taken into consideration. Even assuming a lower prevalence of 50 per cent, the capacity to divert Aboriginal and Torres Strait Islander people onto supported disability programs could significantly reduce unwarranted incarceration.
If one in five people with disability are diverted from detention and into a supported disability program, then the overall Aboriginal and Torres Strait Islander prison population could be reduced by 10 per cent.
On the face of it, diverting 1 in 5 people away from prison and onto a supported disability programs is both significant and achievable. But there are barriers in our federal system of government which need to be thought through, with the backing of strong political leadership.
Firstly, responsibilities for the disability sector are progressively transferring from state and territory governments to the Commonwealth, principally through the establishment of the National Disability Insurance Agency (NDIA). Policing and justice on the other hand remain firmly with the states and territories. So what the diversion policy involves is not just systems mapping between sectors, it is system mapping between levels of government. Whilst this might seem complex, the good news that, as a new scheme, there are no precedents or institutional practices within the NDIS which require un-breaking.
Second, implementing the NDIS is a massive undertaking. The temptation to prioritise what it might consider as ‘core business’ would be overwhelming. But start-up is when new practices and ways of doing business can be considered, and is the time to apply a broader disability perspective to the social agenda.
What is needed is a project upon which to focus.
There are about 1,000 young people currently in juvenile detention, half of whom are Aboriginal or Torres Strait Islander.  Assuming the opening gambit is to divert 1 in 5 young people onto supported disability program, that equates to case management for 100 young people.
It is possible to break down a big complex problem into something eminently achievable. The national initiative in disability enables us to think differently, not just about access rights to services for people with disability, but in other areas of social policy. Through collective will and ingenuity, the nation now has a National Disability Insurance Scheme, something which just a decade ago was pipe dream. We just need to cut and paste this with will and ingenuity and apply it towards a just justice for First peoples.
Scott Avery is the Policy and Research Director at the First Peoples Disability Network (Australia) and is undertaking a professional doctorate on disability in Aboriginal and Torres Strait Islander communities at the University of New South Wales. Follow on Twitter @FPDNAus
 Australian Institute of Health and Welfare (2011) Analysis of NATSISS 2008, Table 1.13, p. 378. At http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=10737420007
 Australian Institute of Health and Welfare (2013) Youth detention population in Australia http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129545393
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