27th of January 2013
SUBMISSION TO THE SENATE INQUIRY FOR THE NATIONAL
DISABILITY INSURANCE SCHEME
The ADJC would like to highlight two areas of attention for the Senate
Inquiry into the NDIS
1. Indigenous Australians with Cognitive Impairment Subject to
Mental Impairment Legislation and Vulnerable to Indefinite
Detention
2. Indigenous Australians with a Disability Living in Remote
Communities
Introduction to the Aboriginal Disability Justice Campaign
The Aboriginal Disability Justice Campaign (ADJC) had its origins in
longstanding concerns held by guardians (both paid and voluntary
guardians) in the Northern Territory, particularly in the central desert
region of Alice Springs. These concerns focussed on Indigenous people
with cognitive impairments being detained indefinitely in the Alice
Springs Correctional Centre (a maximum security prison located twenty
five kilometres outside of Alice Springs) as a result of being assessed as
mentally impaired and then being found unfit to plead.
Despite consistent efforts by the guardians, Indigenous families and
communities, and many other human services professionals in the
justice and disability fields to effect a change to this practice, change did
not seem to be forthcoming. The reasons for this were complex;
involving Indigenous cultural issues, the history of service development
in remote Indigenous communities, the geography of the Northern
Territory, legal frameworks and the inevitable under resourcing of
specialist accommodation and treatment services.
Looking to develop a momentum for change the guardians from the
Northern Territory met with academics from the University of New South
Wales who were researching the issue of people with cognitive
impairments in the criminal justice system. At this meeting it was
concluded that an advocacy campaign raising awareness of what was
happening was desperately needed, particularly focussing on the
indefinite detention of Indigenous people with cognitive impairment.1
The Aboriginal Disability Campaign has developed a position statement
relating to the goals of the campaign which included:
1. Cross-departmental responsibility is needed to manage this issue
2. Accommodation and support programs both as an alternative to
prison and post release
3. That any detention in prison be a last resort and the least
restrictive option suited to the person’s circumstances.
4. Skilled intervention and support to address offending behaviour
being a central element of all services, whether in the community
or in prison.
5. Mandatory review of orders for detention of unconvicted
individuals at least annually, with a court or tribunal carrying out
the review and the individual legally represented and
independently assessed.
INDIGENOUS AUSTRALIANS LIVING WITH A COGNITIVE IMPAIRMENT
SUBJECT TO MENTAL IMPAIRMENT LEGISLATION VULNERABLE TO
DETENTION
ELIGIBILITY FOR THE NDIS
The Aboriginal Disability Justice Campaign (ADJC) seeks the end of the
widespread and unwarranted use of prisons for the management of
unconvicted Indigenous persons with cognitive impairments.
In Australia, particularly the Northern Territory, Western Australia, Queensland
and South Australia people with a cognitive impairment whose behaviours
present a serious risk of harm to self and others, are in the absence of
accommodation and treatment options, detained in prison or psychiatric units.
Often this detention leads to indefinite detention because at the conclusion of
their orders people are assessed as continuing to be a risk of harm to others
and there are no supported accommodation options that provide treatment of
significant benefit.
Detention, and specifically indefinite detention, in prisons and psychiatric units
disproportionally affects Indigenous Australians with a cognitive impairment.
The ADJC is keen to ensure that Indigenous Australians subject to mental
impairment assessments as a result of coming into contact with the criminal
justice system, and who are then placed on custodial supervision orders and
detained in prisons or psychiatric units are identified as a key target group for
the NDIS
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The ADJC focuses mainly on people with an intellectual disability and an acquired brain injury
(cognitive impairment) but for this submission includes people with a mental illness under this
generalised term
Specifically those in this needs category are persons under a cognitive
impairment with accompanying risk behaviours which constitute a serious risk
of harm to others. This largely hidden need is now emerging in numbers that
exceed the capacity and willingness of state and territory health and disability
systems for effective action. Consequently, the majority of those affected are
left to default to criminal justice systems.
There are three main groups the ADJC has observed that are in contact with
the criminal justice system:
1. Those who have committed a crime, are assessed as mentally
impaired and unfit to plead and exhibiting risk behaviours and are
detained in prisons on custodial supervision orders, some of which are
maximum security prisons such as the Northern Territory. At the
conclusion of their order they continued to be detained either due to
assessments which find they still present a risk of harm to others or
they cannot return back to their community due to lack of
accommodation and treatment options . Often people in this group are
detained indefinitely.2
2. Those who have committed a crime and who exhibit risk behaviours
but are not assessed as having a cognitive impairment until sometime
later in the prison or are advised by their lawyers not to participate in
mental impairment assessments
3. Those who have committed a crime and who exhibit risk behaviours
who may have a borderline cognitive impairment who live on the
fringes of society and cycle in and out of prisons as recidivist offenders
but are never assessed as having a cognitive impairment
At least a third of this group of people in the above three groups are
Indigenous Australians with a cognitive impairment. The majority of those
people detained indefinitely are Indigenous Australians with a cognitive
impairment.
Amongst the various causes of cognitive impairment, foetal alcohol-related
brain damage is becoming predominant, and those affected are expected to
reach epidemic numbers in coming years. Accompanying risk behaviours are
commonly an outcome of individuals suffering long- term neglect and abuse.
The ADJC report, “No End in Sight: The Imprisonment and Indefinite Detention of Indigenous
Australians with a Cognitive Impairment” identified that over 130 people across Australia are
detained in prisons and psychiatric units - of which approximately one third to one half are
Indigenous Australians with a cognitive impairment. The ADJC believes that at up to 30
people across Australia are detained indefinitely the majority of who are Indigenous
Australians with a cognitive impairment. Accurate figures are difficult to obtain due to the lack
of data recording by state based justice and disability systems
Recommendation
1) As a matter of priority, the NDIS target people with a cognitive
impairment who are exhibit risk behaviours and who are detained
in prisons and psychiatric units under mental impairment
legislation to ensure their access as participants to the NDIS
2) That the NDIS immediately conduct a national audit to determine
how many people with a cognitive impairment are being detained
across Australia in prisons and psychiatric units and how many of
those are being detained indefinitely
ACCESS TO THE NDIS
The ADJC is extremely concerned about access to the NDIS for Indigenous
Australians with a cognitive impairment who are assessed as mentally
impaired though the criminal justice process or are detained in prisons and
psychiatric units .
Particularly worrying is how the NDIS proposes to ensure that Indigenous
Australians who are detained in prisons and psychiatric units on either remand
or under custodial supervision order will become participants. At this point in
time there does not exist in courts, prisons and psychiatric units, assessment
processes for cognitive impairment and referral processes into the disability
services system that either divert people from prisons / psychiatric units or
provide a pathway out of prisons / psychiatric units.
The ADJC observes that there is no identified pathway for the ‘Agency’ to
access people with a cognitive impairment, detained under mental impairment
legislation. The outcome of this lack of identified access means that people
with a cognitive impairment, particularly Indigenous Australians with a
cognitive impairment, many of whom are detained in prisons outside of the
major metropolitan cities will continue to be overlooked , nor provided with
treatment of significant benefit, and detained in prisons and psychiatric units
indefinitely.
Issues affecting access to the NDIS include:
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Culturally relevant assessment tools
Differing cultural understandings of disability in Indigenous
communities
Indigenous people with a cognitive impairment living on remote
communities
Lack of access to early intervention and disability services
Lack of specialist behaviour intervention services and complex care
services
Distrust of government disability agencies by Indigenous families

Lack of inclusion in developing solutions with Indigenous families and
communities
Other issues affecting this group of people are that they are often in jails or
living of the fringes of society with poor access to advocacy and support.
Often people will be living with a cognitive impairment and mental health
issues. Many people that are relevant to this submission will have multiple
contacts with police and lawyers and the criminal justice system generally but
are often responded to by police and lawyers in ways that help overcome their
issues. Legal assistance is often from legal aid which may lack a systemic
and specific understanding of the issues affecting Indigenous people with a
cognitive impairment.
Recommendation
1) That the NDIS establish referral pathways from state-based
courts, prisons and psychiatric units to ensure that people with a
cognitive impairment who exhibit risk behaviours and are
assessed mental impairment are diverted from detention in
prisons and psychiatric units upon assessment of mental
impairment
2) That the NDIS establish a mechanism by which people with a
cognitive impairment detained in prisons and psychiatric units are
referred to the NDIS
SERVICE NEED
Other than New South Wales and Victoria, there are few systemic
programmatic responses to the issues faced by people with a cognitive
impairment subject to mental impairment assessments.
Given that detention as a result of mental impairment assessments and
indefinite detention practices disproportionately affect Indigenous Australians
with a cognitive impairment who largely live outside the major metropolitan
cities, it is of significant concern that the states with the largest populations of
Indigenous Australians living in remote communities do not provide funding
and service arrangements
Having said that, the largest racial group of people detained through the
criminal justice program in New South Wales are Indigenous Australians with
a cognitive impairment.
Simply the capacity of Indigenous communities to provide accommodation
and complex support and behaviour interventions to their members who may
be violent towards them is highly limited. It is an unfair expectation on the part
of the disability and justice service system to expect that Indigenous people
with a cognitive impairment who exhibit risk behaviours should be managed
by Indigenous families and communities.
As a result of these two dynamics – the lack of systemic programmatic
responses by state-based justice and disability systems for supported
accommodation and treatment options and the limited capacity of Indigenous
families and communities to accommodate and support their members,
Indigenous people with a cognitive impairment subject to mental impairment
assessments are being detained in jails and psychiatric units despite
remaining unconvicted.
There are two significant areas of need for people with a cognitive impairment
who:
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Have been assessed as mentally impaired through the criminal justice
system and are in danger of being detained in prisons and psychiatric
units
are detained in prisons and psychiatric units indefinitely
The two areas of significant need include
1. The development of a continuum of accommodation options which
includes both custodial and non-custodial accommodation
2. The provision of treatment that is of significant benefit in the form of
both intensive day-to-day support and behaviour intervention
Recommendation
1. For the NDIS to fund specific accommodation and treatment
models in every state and territory specifically aimed at reducing
the use of detention in prisons and psychiatric units for people
with a cognitive impairment generally and specifically for
Indigenous people with a cognitive impairment
INDIGENOUS AUSTRALIANS WITH A DISABILITY LIVING IN REMOTE
COMMUNITIES
The Aboriginal Disability Justice Campaign believes the cultural construct of
disability is different for Indigenous Australians with a disability, their families
and communities. This difference in the cultural understanding of disability
affects the capacity to access disability services for Indigenous Australians
with a disability – this is a known fact in relation to Indigenous Australians with
a disability accessing state based disability services.
Add to this, the history of the relationship between Commonwealth and state
government agencies and Indigenous Australians and what is occurring is
Indigenous Australians with disabilities, their families and communities
completely missing out on disability services Australians in the metropolitan
areas take for granted.
This is having a significant impact in access to disability service in remote
settings impacting on access to early intervention, support for managing
behaviours of concern and the over-representation of Indigenous Australians
with a disability in the criminal justice system. Given the tsunami of Foetal
Alcohol Syndrome affected children that is maturing in Indigenous
communities around Australia, it is imperative that the NDIS take this into
consideration and set aside the necessary funding to support the
development of locally based and culturally relevant responses in remote
Aboriginal communities.
This lack of generalist and specific disability services for Indigenous
Australians in remote communities presents barriers for children accessing
education, contributes to violence in families and on communities from people
with intellectual disabilities who present as a risk of harm to others,
entrenches a lack of access to the social, economic and cultural life of
Aboriginal and the larger Australians communities, contributes to poor health
outcomes and lower life expectancy
The ADJC is keen to draw attention to this often unseen but growing disability
need.
“The difficulties in accessing specialised or even mainstream, services are
accentuated for Indigenous people in remote areas. These problems are
compounded further by:
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the high rates of disability in these communities, creating a higher level of
incipient need
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the multiple sources of disadvantage that often affect such communities
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weakened informal support networks for people in some communities
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a cultural tendency not to identify disability or to access services when they
are needed.”3
The Aboriginal Disability Justice Campaign is highly concerned about access
to disability services for Indigenous Australians with disabilities living in
remote communities
Key Recommendations
The ADJC presents ten key recommendations the NDIS Transition Agency
must undertake in relation to improving access to disability services for
Indigenous Australians living on remote communities:
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The Productivity Commission: Disability Care and Support
1. Training remote community nurses in the early identification and
support of children with disabilities
2. Provide access to specialist assessments services
3. Provide specialist disability nurses to regional areas to address specific
health issues associated with living with a disability in remote areas
4. Provide access to allied health teams utilising the local knowledge of
specialist disability nurses and Aboriginal health clinic nurses for
children with disabilities living in remote communities
5. Provide funding for early intervention support services based in primary
schools on remote Aboriginal communities
6. Increase the capacity of schools to support and manage children with
disabilities and behaviours of concern so that they remain at school
rather than being sent home to families who cannot manage them
7. Provide specialist behaviour intervention teams in regional and remote
areas to assist families and communities based in schools on
Aboriginal communities
8. Provide respite accommodation options on community for people with
disabilities and their families
9. Provide in home family and community support for families with a
member with a disability living at home on a remote community
10. Provide access to educational and vocational opportunities for adults
with a disability
General Recommendations
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Where the NDIS legislation refers to social and economic participation
include cultural participation
Ensure that Indigenous Australians and Indigenous Australians with a
disability are employed in the Agency, particularly as planners
Ensure that Indigenous Australians and Indigenous Australians with a
disability are represented on the Board of the Agency and the
Independent Advisory Council
Develop an employment program targeting Indigenous Australians and
Indigenous Australians with a disability in the NDIS to ensure
employment and participation in all aspects of the NDIS
The Aboriginal Disability Justice Campaign appreciates the opportunity to
comment on the NDIS legislation and appear before the Senate Inquiry
Patrick McGee
0448 610 105
Email: thiswhisperinginourhearts@hotmail.com
Ian McKinlay
0458 577 416