Introduction by Croakey: Genuine co-design and consultation with people with lived prison experience are essential in the National Disability Insurance Scheme reform process, according to three members of the National Network of Incarcerated and Formerly Incarcerated Women and Girls, MJ Whalen, Tabitha Lean and Debbie Kilroy.
Below, Whalen, Lean and Kilroy say that working with organisations led by people with lived prison experience will ensure that “disabled people receive the support they need before they become entangled with the criminal legal system, ultimately reducing criminalisation and fostering safer and healthier communities”.
The National Network of Incarcerated and Formerly Incarcerated Women and Girls was established in 2020 to represent people who have been in prisons and to advocate for abolition of the prison industrial complex.
MJ Whalen, Tabitha Lean and Debbie Kilroy write:
The National Disability Insurance Scheme (NDIS) is on the agenda in Federal Parliament again, with the Commonwealth proposing amendments purporting to get the NDIS “back on track“. However, as is almost always the way for people in prison, when it comes to social policy, we are not consulted on what we really need and, as a result, continue to miss out.
Disabled people in prison have long been caught in a tug of war between the federal and state governments and their respective responsibilities for the provision of healthcare to the citizens of this country.
Instead of receiving the essential services and support they need, disabled people in prison are often neglected and harmed due to a lack of political will to provide whatever is needed to support them while inside and on their release from prison.
People with disabilities, particularly intellectual disabilities and acquired brain injuries, are imprisoned at an alarming rate. The Australian Centre for Disability Law estimated that 95 percent of First Nations people charged with criminal offences have an intellectual disability, a cognitive impairment or a mental illness.
A report commissioned by the Disability Royal Commission in 2021 revealed that 15 percent of people in prison have an intellectual disability. Further, in New South Wales one in four First Nations children in prison has an intellectual disability.
Access to disability support should therefore be considered a crucial part of the care and support provided in the suite of healthcare that could and should be made available to people in prison.
However, given the Federal Government oversees the NDIS, and state and territory governments manage the prison health system, this division of responsibilities results in gaps in service provision, as both sides deflect responsibility, resulting in a lack of accountability for ensuring continuity of care.
Disrupted support
In theory, the NDIS is designed to provide support to all eligible individuals regardless of their circumstances; however, in practice, when a person with a disability enters the prison system, their access to NDIS support is significantly disrupted.
These latest rounds of amendments proposed by the Government absolutely fall short of addressing the issues faced by disabled people in prison.
As a National Network of Incarcerated and Formerly Incarcerated Women and Girls (National Network), we are unsurprised, because typically, incarcerated and criminalised people are not directly consulted on such amendments or co-design processes, nor have the resources to respond to all inquiries.
We should be consulted, because we know what the systemic and access problems are, and we have a pretty good idea what the solutions might be. And ultimately, as a National Network, we want to see amendments to the legislation that support access for people in prison to the NDIS system.
We vehemently oppose any further restrictions that limit access to vital NDIS supports for people in prison.
Equitable access to the NDIS should be based on individual needs, regardless of legal status. People convicted of an offence, in prison, or out in our community, are citizens and deserve equal access to NDIS supports.
Recent reports in the press – which suggest the Federal Government may consider screening NDIS applicants for criminal convictions, potentially barring those with serious offences from accessing the scheme – are outrageous.
Denying essential healthcare to people because of their criminal status is an abrogation of the state and Commonwealth’s responsibility to keep all of its citizens safe.
We can’t continue abiding NDIS service providers’ reticence about supporting an NDIS participant in prison simply because the pricing model does not capture the time needed to navigate the processes involved in visiting a prison.
The Final Report of the Disability Royal Commission highlights it was told (on page 219) “about issues in the availability and willingness of NDIS service providers to provide supports to NDIS participants in custody. The Victorian Government told us about NDIS-funded clinicians being reluctant to accept referrals for participants in custodial facilities”.
Nor should there be any further eligibility criteria for a person who is already an approved participant to gain support for their disability needs.
Falling through the cracks
When someone is due to be released from prison, their application should be prioritised, reducing the waiting time from to two to five business days after applying. This would make a huge difference in ensuring people are properly supported upon release. And there is a need for consistent and reliable screening.
In South Australia, due to the inconsistent and limited screening upon admission, prisons rely on individuals to self-report their disabilities when they enter. This approach is problematic for so many reason. Let’s start getting some things right for the people inside.
After all, the Government’s own Royal Commission stated, “the responsibilities of the NDIS and the criminal justice system need to be clarified to provide appropriate supports for people with disability and prevent people with complex needs ‘falling through the cracks‘”. Hear, hear!
The notion that NDIS participants are being “dumped” on the NDIS and that the scheme is being used to “protect” the public from people with serious convictions is also absurd.
The real issue is not excessive NDIS support for those in the legal system but that many people with disabilities only receive the necessary support after multiple encounters with the criminal legal system.
In our view, this is due to several factors:
- Inadequate early intervention: many people do not receive timely and adequate support in the community, leading to deteriorating conditions that result in encounters with the criminal legal system.
- Lack of awareness and accessibility: there is a lack of awareness about available NDIS support and barriers to accessing it, particularly for marginalised and vulnerable populations.
- Systemic barriers: structural issues within the NDIS and the legal system, including bureaucratic delays and complex eligibility requirements.
- Socioeconomic factors: challenges such as poverty and homelessness can increase interactions with the criminal legal system. Untreated mental health issues can lead to behaviours resulting in criminalisation.
Many of the people that Sisters Inside supports in prison have undiagnosed or untreated disabilities, and Sisters Inside staff are often left to scramble to secure their NDIS entitled supports before their release. These people should have received NDIS support before they were criminalised, potentially preventing their imprisonment.
Concerns about equity
The core mission of the NDIS is to provide equitable support to people with disabilities, irrespective of their circumstances. However, there is a contradiction in how this support is administered within certain jurisdictions.
For example, in the Queensland Correctional Services and the broader legal system, Justice Liaison Officers are tasked with bridging the gap between the NDIS and the legal system, ensuring continuous support for people with disabilities during custody.
Concurrently, the newly established Justice Planning Team seek to offer specialised assistance beyond standard NDIS pathways, catering to those with complex needs such as multiple incarcerations or extended custody periods. However, the eligibility requirements to receive these supports are stringent:
- Participants who had multiple incarcerations over the past five years
- Participant is currently incarcerated and has been for more than 12 months
- Participant is currently incarcerated and has been incarcerated for more than 12 months due to alleged offense, including participants on remand
- Participants incarcerated under a guardianship
- Multiple incarcerations within the 12 months period in a youth prison setting.
The criteria for specialised support contradict the inclusive principles of the NDIS and the rights of individuals with disabilities to receive consistent care and rehabilitation. Yet, people convicted of an offence in or out of prison are still part of our community and deserve equal access to NDIS supports.
This, therefore, raises a critical concern: Why are people eligible for ongoing NDIS support in custody experiencing additional barriers to accessing their entitled services, essential services that could assist in ensuring their wellness?
Continuity of care
Despite the establishment of Justice Liaison Officers and Justice Planning Teams, there is still a lack of focus on continuity of care. Women on remand are particularly affected, as we often do not receive referrals to prison mental health services.
Establishing vital linkages between external supports, Justice Liaison and Justice Planning Officers, and NDIS service providers is critical. People are often released into the community earlier than the 12-month eligibility period for support without their plans being reviewed or assistance with their access forms.
Ensuring continuity of care for people transitioning into or out of prison is crucial.
Many people with disabilities entering the prison system have complex health and support needs that are often not fully understood or addressed by standard NDIS plans. This lack of tailored support can significantly impact wellbeing during incarceration and hinder effective reintegration into the community upon release.
One major issue is that many NDIS support coordinators are unfamiliar with the unique needs of people in prison. This unfamiliarity can lead to significant gaps in care and support.
Genuine co-design
Addressing these fundamental failures in the system requires a commitment to early intervention, increased awareness, and streamlined processes within the NDIS and legal systems.
By working with organisations led by people with lived prison experience, we can work towards ensuring that disabled people receive the support they need before they become entangled with the criminal legal system, ultimately reducing criminalisation and fostering safer and healthier communities.
Most important of all, however, is involving networks like ours in the co-design process.
The groups currently engaged in the co-design process are not being led by people with actual lived prison experience. Involve us, let us share our expertise, and let’s build a system that supports people and truly gets the NDIS “back on track”.
About the authors
MJ Whalen is a formerly incarcerated woman, committed to ending the criminalisation of women and girls. MJ works for Sisters Inside and is a member of the National Network of Incarcerated and Formerly Incarcerated Women and Girls.
Tabitha Lean is an activist, poet and storyteller. An abolition activist determined to disrupt the colonial project and abolish the prison industrial complex, she’s filled with rage, channelling every bit of that anger towards challenging the colonial carceral state. Having spent almost two years in Adelaide Women’s Prison, 18 months on Home Detention and three years on parole, Tabitha uses her lived prison experience to argue that the criminal punishment system is a brutal and too often deadly colonial frontier for her people. She believes that until we abolish the system and redefine community, health, safety and justice; her people will not be safe.
Debbie Kilroy OAM was first criminalised at the age of 13 and spent over two decades in and out of women’s and children’s prisons. Driven to end the criminalisation and imprisonment of girls and women, Debbie established Sisters Inside, as well as her law firm, Kilroy & Callaghan Lawyers. An unapologetic abolitionist, Debbie’s activism work centres on dismantling the Prison Industrial Complex and all forms of carceral control and exile. With a firm belief that there should be ‘nothing about us without us’, Debbie established the National Network of Incarcerated and Formerly Incarcerated Women and Girls to centre the voices, experiences and aspirations of criminalisation and imprisonment women and girls in order to change the face of justice in this country.
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