This chapter describes the experience of autistic people in relation to their interactions with the justice system in Australia. This includes discussion of:
the overrepresentation of autistic people in the justice system;
factors contributing to that overrepresentation; and
transitions out of detention settings and into the community.
Overrepresentation of autistic people in the justice system
The committee heard that there are no definitive statistics available in relation to autistic people and the justice system. However, a number of stakeholders asserted that autistic people are at greater risk of involvement with the justice system and are also overrepresented in detention settings. This aligns with evidence provided by Speech Pathology Australia (SPA) and others about the general overrepresentation in the justice system of people with neurodevelopmental disorders and cognitive disabilities.
While a lack of data means the extent of overrepresentation is not clear, underdiagnosis of autism may mean it is even greater than the anecdotal evidence suggests. For example, SPA told the committee that its members had reported 'a number of people they consider having undiagnosed autism in prison'.
Other stakeholders, such as the Commissioner for Children and Young People Western Australia and Positive Youth Incorporated (Positive Youth), pointed out that certain cohorts of autistic people may feature disproportionately within broader overrepresentation statistics. This includes autistic First Nations peoples and those from lower socio-economic backgrounds, who are more likely to be undiagnosed and may also have greater difficulty accessing services and supports that may prevent involvement with the justice system.
In addition, Autism Spectrum Australia (Aspect) explained that sensory issues, anxiety, a 'tendency toward compliance and difficulties with information processing' also leave autistic people more vulnerable than the general population once they enter the justice system. According to Positive Youth, a lack of appropriate support within detention settings can end up 'potentially exacerbating – and in some cases, deepening' people's engagement with the system. Similarly, SPA suggested that rates of recidivism among undiagnosed autistic people may be increased by 'unrecognised speech, language and communication needs' which mean they 'struggle to access treatment and rehabilitation programs delivered verbally'.
As emphasised by the Office of the Public Advocate Victoria (OPA Victoria), 'cognitive disability does not inherently lead to criminal or offending behaviours'. Indeed, Autistic-led Organisations Australia (ALOA) stressed that most autistic people who come into contact with police are the victims of crime, rather than the perpetrators.
The OPA Victoria submitted that interaction with the justice system arises from 'the cumulative effect of social and economic disadvantages faced by many people with disability'. This view was reflected in evidence provided to the committee which suggested that a confluence of factors had led to the overrepresentation of autistic people in the justice system. These included:
a failure to provide preventative services and supports;
poor understanding of autism within the police and court systems; and
a lack of adequate services and supports within the justice system.
Preventative services and supports
The committee heard about the role adequate support plays in reducing the likelihood of contact with the justice system in Australia. This appears to reflect international experience. For example, Positive Youth referred to a 2019 report by the United Kingdom’s Joint Committee on Human Rights which stated that:
…the detention of young people 'is usually the result of a long and predictable series of failures to appropriately support them and their family'.
Other factors that were seen to increase the risk of interaction with the justice system included late (or no) diagnosis, insecure housing, poor educational experiences, and a lack of resources.
In addition to difficulties in accessing preventative services, this at-risk cohort is also affected by a lack of service integration. This is a particular issue for autistic people with complex needs. For example, Positive Youth noted that poor service integration works against the kind of multidisciplinary approach that may be needed to address more complex needs. It also contended that the outcome of a lack of integration can be that 'responsibility for addressing these problems often ends up falling to the juvenile justice system'. This aligns with the OPA Victoria's concerns that the prison system has become a default 'provider of last resort' for people with complex needs.
Accordingly, Positive Youth argued for the provision of holistic, wraparound services incorporating community supports. It suggested this could create stronger support for at-risk autistic young people and prevent them from 'falling through the cracks and becoming involved with the juvenile justice system'.
Services for autistic people with complex needs are also impacted by a dearth of specialist service providers, including providers of last resort. Evidence submitted to the committee suggests this is a particular issue for services funded under the National Disability Insurance Scheme (NDIS). For example, stakeholders raised concerns that the individualised NDIS funding model is not suited to funding intersecting services—such as those at the interface of justice and disability. This may have exacerbated service segregation and led to specialist providers exiting the market.
However, in relation to support for people with complex needs, the National Disability Insurance Agency (NDIA) pointed to the establishment of the Complex Support Needs Pathway. This pathway supports participants whose ability to engage with NDIS is affected by factors such as 'situational or personal factors, such as mental health issues, homelessness or incarceration'. The pathway also includes a focus on maintaining participants' critical supports in order to mitigate the risks of service failure.
While the Complex Support Needs Pathway was welcomed by stakeholders, the committee heard concerns that access to the pathway happens too late. For example, Learning for Life Autism Centre stated that access is only granted once a participant's behaviours have escalated to the point where the participant is already interacting with other support systems, including the justice system.
Other stakeholders such as the OPA Victoria called for greater transparency and consultation with stakeholders around the NDIA's Maintaining Critical Supports Framework (MCS Framework). Among other priorities, the OPA Victoria argued that the MCS Framework should focus on ensuring that:
providers of last resort mechanisms are established as an ongoing component of the NDIS market;
multiple designated providers of last resort are clearly identified, adequately resourced, and have specialised experience and skills relevant to the specific needs of participants;
there are clear procedures in place to guide NDIS planners, Local Area Coordinators and Support Coordinators when the need for provider of last resort arises; and
participant plans are flexible enough to respond to situations where a provider of last resort is required, including the ability to access contingency funding.
Lack of autism understanding
As with other service sectors, poor understanding of autism within the police force and the court system affects autistic people's experiences and outcomes. According to Marymead Autism Centre, a lack of systemic understanding means that responses to autistic people within the justice system are dependent on the experience of individual officials.
A recent study by Aspect found 'considerable dissatisfaction' with police handing of interactions with autistic people. This included reports of frequent misunderstandings arising from communication differences. Similarly, Mr Philip Morris pointed to the findings of a similar study in the United Kingdom. That study found that 69 per cent of autistic adults and 74 per cent of parents of children with autism were dissatisfied with their experiences with the police service.
This reflected stakeholder concerns that autistic characteristics, such as social and communication difficulties, can be misinterpreted by staff within the justice system. This, in turn, can increase the likelihood of arrest, longer sentences, and greater difficulties within detention settings. The potential for misinterpretations to lead to poor outcomes was illustrated in two case studies provided by autistic advocate, Ms Geraldine Robertson (see Box 16.1).
Box 16.1: Examples of autism advocacy in the justice system
Case study – 'J'
A young man, J., looking at lights through his fingers and describing the patterns in a mechanical and monotone voice, was asked by the police to move on. He did not understand why and demanded an explanation. After instructions made in official language, J. became confused, flapping his hands.
The police placed him in protective custody, which was technically the correct thing to do, but J. did not know what protective custody was. He became frantic with fear, not knowing if he would go to prison or how long he would be detained.
It would have been helpful if the young constable had recognised flapping as a sign of autism and understood that he should speak in short, simple sentences that J. would understand. In reality, J. injured his face when banging his head against a cell wall and required surgery and ongoing counselling after the experience.
T. was summonsed to appear in court after failure to follow a police directive, which he did not understand. His lawyer advised him to plead not guilty after the advocate helped T. to explain the situation.
On being called before the magistrate, T. suddenly started yelling that he was guilty. He demanded to be charged so that he could pay the fine and go home. This was sparked by sheer terror at an unfamiliar situation, stressful for most people. Nothing that the lawyer or magistrate could do would change T.’s mind about pleading guilty.
The autistic advocate was permitted to speak with him—the information that a criminal record would prevent this man from entering Japan to attend anime and manga events (special interests which dominate his life) provided the reason to persuade him to cope with the court case so that justice could prevail.
Source: Ms Geraldine Robertson, Submission 165, pp. 3–4.
In addition, SPA contended that autistic people are also at higher risk of unnecessary exclusion or restraint due to a lack of understanding that a person's meltdowns or challenging behaviours are linked to their autism.
According to ALOA, inaccurate and negative police perceptions of autism—including that autism is a mental illness, or that all autistic people are violent or unable to communicate—can make people reluctant to disclose their diagnosis:
Once I disclosed my diagnosis, they treated me like a child and made me report sexual offences committed against me on video because they said I am an unreliable witness. … I now do not disclose anything to police.
The Commissioner for Children and Young People Western Australia pointed out that system officials are also unlikely to realise that autistic people 'may not understand the laws they break or comprehend the effect they have on others'. In addition, they may not understand that certain autistic characteristics, such as misreading social cues and fixated behaviours, may be 'contributing factors in illegal activities', or that social exclusion and difficulties interpreting intent can lead to autistic people being 'unwittingly manipulated' into criminal activity.
This view was shared by the Coalition of Autistic Women (CoAW) who told the committee that 'difficulties in reading the emotions and intentions of others' can lead to autistic women becoming 'victims of opportunists'. As an example, the CoAW described the experience of an autistic woman who committed crimes to gain the approval of her boyfriend. To survive her time in prison, she became a 'social chameleon' to such an extent that she ended up identifying with being a criminal. This resulted in her spending the next few years in and out of prison.
The tendency for females to camouflage and lose their identities was reinforced in evidence from Professor Robyn Young, who told the committee that:
Most of the adult females that I diagnosed have lost themselves completely. They have no idea who they are anymore because there's this chameleon of characters that they've developed along the way.
Yellow Ladybugs also contended that a lack of knowledge about autism is evident in Family Court dealings with autistic mothers, with children sometimes removed from their mother's care 'for no other reason than their disability'. The committee also heard evidence that courts sometimes disbelieve autism diagnoses if children don't conform to a stereotype of autism. This particularly affects females who mask their autism:
I was accused of having Munchausen syndrome by my partner and his lawyers because my daughter's autism didn't match their limited stereotypical view. … the court-appointed psychologist also questioned it, stating she was not autistic – she was 'too social' and could look at him in the eyes. This is an absolutely outdated and tragically damaging stance and had huge ramifications for her and me.
Where a lack of understanding intersects with issues such as family violence, the consequences can be particularly devastating. The CoAW relayed the experience of one autistic woman who ended up living with violence for many years after her attempt to take out a restraining order through the courts ended in humiliation:
The magistrate went off at me for stepping in the box when he had told me not to. I looked around and realised that he was talking about the witness box. If he had said 'Do not step in the witness box,' I would have known what he meant. The whole court was laughing at me. I left straight away because I was so embarrassed, I could not speak. I didn’t get a restraining order. We lived with violence for many years.
Echolalic speech was identified by Professor Robyn Young as another sign of autism with the potential for damaging consequences if not recognised by police or the court system:
You say, 'Do you understand this was right or wrong?' They say, 'Wrong.' And you say, 'Do you know whether this was legal or illegal?' and they say, 'Illegal.' So, all of a sudden, you've got admissions. I have to go through transcripts and point out all these other cases where they've engaged in echolalic speech, and they weren't actually admitting to that.
The Queensland Family and Child Commission observed that these inadequate responses to autistic behaviours can serve to drive people further into the justice system. Accordingly, numerous stakeholders called for better education and training of personnel within the justice system, including in the areas of trauma-informed approaches and positive behaviour support.
However, Professor Robyn Young also highlighted the importance of educating autistic people about how to interact with the justice system. In doing so, she cited one particular case where she felt an autistic man had been jailed 'largely on the basis of the way he interacted with police. This was reflected in the experience of another submitter who felt he was punished for his responses in his police interview.
Some stakeholders also suggested placing a greater emphasis on community policing approaches. This included introducing or replicating initiatives such as:
the United Kingdom's Police Community Support Officers (who support outreach to vulnerable communities),
the 'coffee with a cop' program run by Victoria Police in the Brimbank area; or
autistic contact officers who could better connect first responders and the autistic community.
Services and supports within the justice system
Despite ongoing efforts to reform the justice system, the OPA Victoria noted that it is still 'ill-equipped and under-resourced to respond effectively to the needs of people with disability'.
While stakeholders emphasised the importance of accessing diagnostic services and treatment in the justice system, service provision appears to be inconsistent. For example, SPA noted that while there are 'speech pathologists employed in several youth justice facilities, such as in Queensland and South Australia' this is not consistent across detention settings.
The committee also heard suggestions that there should be more use of diversionary programs. For example, the OPA Victoria advocated for treatment-based detention models, such as the Supervised Treatment Orders (STOs) available to people with intellectual disability in Victoria (see Box 16.2). According to the OPA Victoria, the STO model allows 'intervention at an earlier point than the criminal justice system' which can 'divert persons away from the criminal justice system into the community, albeit with augmented supports and supervision'.
Box 16.2: Supervised Treatment Orders (STOs) (Victoria)
One form of specialist support available to some people with disability is through compulsory treatment under the Disability Act 2006 (Vic).
The Disability Act 2006 (Vic) sets out a legal framework for the civil detention and compulsory treatment of people with intellectual disability who are found to pose a significant risk of serious harm to others.
This form of detention is non-punitive and non-custodial. Detention is community-based or in a purpose-built facility. The STO regime aims to bring greater fairness and scrutiny to decisions affecting the personal liberties of people with intellectual disability.
The legislation requires that the person with an intellectual disability derives a 'benefit' from being placed on an STO, and that the levels of restrictions on the person’s life be incrementally reduced over time.
An STO can be made by the Victorian Civil and Administrative Tribunal for no longer than 12 months, at which point a new application has to be made and again tested against the legislative criteria.
Source: Office of the Public Advocate Victoria, Submission 80, pp. 18–19.
In addition to the matters raised above, evidence provided to the committee also suggests there are particular issues with:
a lack of advocacy and access to legal services;
a lack of appropriate adjustments to justice settings; and
a lack of clarity about the intersection of justice-sector supports and those funded under the NDIS.
Advocacy and access to legal services
Autistic people report difficulties accessing legal advice and representation. For example, one autistic stakeholder stated that of the two free legal services available in their area, one operated for two hours each week and the other for two hours per month. They also reported that their attempt to access the Disability Legal Service was unsuccessful due to resourcing levels that meant there was only one solicitor available to service a large geographical area.
Even when legal support is available, it is not always useful due to a lack of autism-specific knowledge. In some cases, the committee heard, it can even be detrimental to the interests of autistic clients. For example, an autistic man described how his lawyer did not make an effort to keep him informed about his court case and did not produce any witnesses or exhibits on his behalf. This included not calling witnesses (relatives of the 'purported victim') who had wanted to help him clear his name.
Accordingly, suggested improvements included the provision of training for all staff involved in court processes, the inclusion of disability advocates throughout court processes, and the introduction of autistic liaison personnel in all courts. Similarly, the OPA Victoria proposed expanding initiatives such as Victoria's Independent Third Person program (see Box 16.3).
Box 16.3: Independent Third Persons (ITP) program (Victoria)
The ITP Program provides independent volunteers on a 24/7 basis. These volunteers help people with cognitive disability, who are attending police interviews, to understand their rights either as suspects, victims or witnesses.
The ITP program has supported more than 40,000 interviews over 32 years. Anecdotally, it has been observed that the ability of people with disability and/or mental illness to communicate their experience and understand their rights increases with the assistance of an ITP volunteer.
Despite the steady and increasing demand for the ITP program, funding has not kept pace, hampering the ability of the program to ensure trained ITPs are available when required.
Current estimates show that about 10 per cent of requests for an ITP do not receive a response. This represents an average of 42 interviews per month where a person misses out on support due to volunteer unavailability, remote location of police stations, or gaps in the roster.
Source: Office of the Public Advocate Victoria, Submission 80, pp. 14–15.
Adjustments to justice settings
The committee heard that many justice settings were unresponsive to the needs of autistic people. For example, one stakeholder described being forced to participate in a NSW Civil and Administrative Tribunal (NCAT) hearing via telephone. This occurred despite the individual having auditory processing disorder, which means they are unable to process auditory information quickly. The individual had also advised NCAT on two occasions prior to the hearing that they may have difficulties at the hearing because of their autism.
Similarly, Yellow Ladybugs conveyed the experience of an autistic mother who described how she was unable to access any information—from either Family Court staff or advocacy organisations—about her rights to adjustments during her trial. She also described the Family Court process as rigid and unresponsive to her needs. This included requiring her to participate in verbal interview and attend an assessment in unfamiliar surroundings, as well as the failure of the assessor to take account of her child's autism which resulted in 'inadequate custody recommendations'.
Given the communication difficulties experienced by autistic people, SPA also pointed to the need for justice settings to recognise and accommodate augmentative and alternative communication systems. It also suggested the use of 'trained communication intermediaries' who could work with autistic people to understand their communication needs and provide support during police interviews and in court.
A similar view was expressed by Mr Philip Morris, who pointed to the importance of involving family, friends and professionals who know the autistic individual in the police interview process. Mr Morris also argued that the physical interview environment should take account of sensory needs.
Other suggested improvements included the provision of autism-friendly information—including social stories—on court websites, allowing visits to court facilities prior to hearing dates, and the availability of sensory rooms within court facilities.
The intersection of justice-sector and NDIS-funded supports
The Australian Government's response to the final report of the Joint Standing Committee on the NDIS on its inquiry into NDIS planning made clear that:
…all governments have agreed that states and territory criminal justice systems continue to be responsible for meeting the needs of people with disability while they are in detention and for reasonable adjustment in such settings. Supports, above reasonable adjustments made by the criminal justice systems, may be funded by the NDIS and accessed by the participant during their incarceration.
However, it appears from evidence presented to the committee that the demarcation of responsibility for service provision may not be clearly understood by autistic people and their families. For example, one submitter stated that 'people in the criminal justice system cannot get access to paid therapies and supports through the NDIS'.
While stakeholders such as the OPA Victoria did recognise the divide in responsibilities, it called for governments to 'abide by the Principles to Determine the Responsibilities of the NDIS and Other Service Systems … with specific reference to the principles applying to the criminal justice system'.
Transitions out of detention settings
The move from a detention setting into the community is a high-risk transition point for autistic people. The OPA Victoria cited a 2015 Victorian Ombudsman report which found an increased risk of death—mostly from causes related to mental health—in the months following release. It also identified housing insecurity as a key predictor of a return to prison. Both the risk of re-offending and the increased mortality risk were linked to 'a failure to organise wrap-around supports at a time when individuals are rebuilding their lives'.
The OPA Victoria argued that quality 'through care', including pre-release planning, is critical to the success of prisoners' transitions into the community. Quality through care relies on correctional staff engaging prisoners in the planning process, the involvement of the NDIA (where applicable), as well as the availability, integration and coordination of support services, including community-based specialised supports.
However, the OPA Victoria also noted that there was a shortage of community‑based supports for transitioning prisoners. The reasons for this shortage were thought to include limited funding, provider unwillingness to take on offenders, and an increase in the 'prevalence and severity of mental illness and disability among prisoners'. The experience of a prisoner named 'Mark' was used to illustrate the effect of poor through care and a lack of supports for those leaving prison settings (see Box 16.4).
Box 16.4: Case study: OPA Victoria – Mark
OPA Victoria received a letter from Mark, who identified as having autism, mental health issues, and substance abuse. For many years, he cycled in and out of prison.
Mark has good insight into the risk he can pose if he is not well-supported when living in the community. He expresses a strong desire to contribute positively to his community but acknowledges that he needs supports to do this and is proactive in seeking them. For instance, in preparation for a previous release from prison, he requested a prison support worker to establish a transition support plan where he requested assistance with housing, Centrelink, mental health, and substance abuse services.
However, a few days before his release, he had not yet heard back from the support worker to know how to access the supports on release. He reminded the prison staff of his request but never received an answer. Mark was released in the evening with none of the supports he identified and nowhere to go.
When OPA spoke to Mark, in response to his letter, he was in custody in a maximum-security prison with an upcoming release date. He was distressed about returning to the community and while he hoped this release would be more successful than the last, he had not received any support from prison staff to set himself up for a successful transition back to the community. OPA asked Mark whether he had an NDIS plan, but he was not aware of the scheme or how to access it. He remained optimistic and sought assistance from OPA in the absence of any pre-release planning.
Source: Office of the Public Advocate Victoria, Submission 80, pp. 16–17.
In addition, there were also mixed views about the success of the NDIS in supporting transitions out of detention settings, particular for those with complex needs. For example, the Northern Territory Office of the Public Guardian noted that the NDIS Complex Support Needs Pathway has had positive impacts on the outcomes of autistic prisoners transitioning into the community. Similarly, both the Government of Western Australia and OPA Victoria welcomed the introduction of NDIS Justice Liaison Officers (see Box 16.5). However, the OPA Victoria also identified challenges in relation to establishing NDIS plans for prisoners prior to release, as well as the need to address provider of last resort arrangements.
Box 16.5: NDIS Justice Liaison Officers (JLOs)
JLOs provide a single point of contact for workers within state and territory justice systems to coordinate support for NDIS participants in youth and adult justice systems.
Th scope of the JLO role includes:
promoting understanding of the NDIS within prisons and correctional facilities to support prison entry and discharge and community transition;
promoting awareness of the scope of supports and services provided through the NDIS to key justice staff and stakeholders;
building connections between government and community services and the NDIA to ensure the right information is available for the planning process;
working with Local Area Coordinators and Planners as appropriate; and
providing strategic advice to the broader NDIA on improving the capability of NDIS representative in relation to the justice interface.
Effective justice system responses to the complex needs and vulnerabilities of people with disability is an identified policy priority in Australia's Disability Strategy 2021–2031. However, as with other service sectors, the committee is disturbed by the poor experiences and outcomes of autistic people who come into contact with the justice system.
The committee is also concerned about the lack of accurate data on the numbers of autistic people in the justice system. Without this data, it is impossible to monitor the extent of overrepresentation, or whether reforms to the justice system are making a difference in outcomes for autistic people. However, the committee notes that there is work underway to improve data sharing between the National Disability Insurance Scheme (NDIS) and state and territory justice systems and encourages this work to be expedited.
Overall, autistic people's interactions with the justice system appear to be the result of underlying disadvantage, such as poverty and insecure housing, as well as compounding service delivery failures. Again, it is autistic people with complex support needs that tend to fare the worst.
The committee notes that the introduction of the Complex Support Needs Pathway has been welcomed by stakeholders as a positive development. However, the committee was troubled by evidence that this pathway appears to react to, rather than avert, escalating needs and behaviours. Based on the evidence provided, it is likely that earlier access to the Complex Support Needs Pathway could prevent some autistic people from coming into contact with the justice system.
Given the poor outcomes for justice-engaged autistic people, the committee suggests that there is also a need to investigate options for diversionary programs where appropriate.
The committee recommends that, as part of the inquiry into the National Disability Insurance Scheme proposed in Recommendation 6, the Complex Support Needs Pathway be reviewed to ensure its focus is on preventing (rather than responding to) escalating behaviours that may result in interactions with the justice system.
The committee recommends that the Australian Government work with states and territory governments and relevant stakeholders to investigate options for diversionary programs, rather that custodial sentences, where appropriate.
As with other service sectors, understanding of autism within the justice system is poor. Unsurprisingly, this has led to poor experiences for autistic people and a subsequent lack of trust between the autistic community and those working in the police and court systems.
Of particular concern to the committee is the impact this lack of trust has on the willingness of autistic people to disclose their diagnosis. While the committee understands this hesitancy, it is concerned that non-disclosure results in autistic people missing out on appropriate supports.
Accordingly, the committee supports stakeholder calls for better education and training for justice system personnel, as well as a greater emphasis on community policing approaches to improve relationships between the police and the autistic community.
There is also a need to focus on building a culture within all justice system settings, where autistic people feel supported to disclose their diagnosis, or seek a diagnosis where autism may be suspected.
The committee recommends embedding autism as part of initial education courses and ongoing professional development requirements for all personnel involved in the justice system, including police, lawyers, and court staff.
The committee recommends that all jurisdictions encourage the adoption of community policing approaches in order to build understanding and trust between police and the autistic community.
The committee recommends that the Australian Government work with states and territory governments to promote a culture in the justice system where autistic people feel supported to disclose their diagnosis and where people with undiagnosed disabilities feel comfortable requesting an assessment.
Evidence provided to the committee suggests there is a failure in most justice settings to make adjustments that accommodate the needs of autistic people. In the committee's view, there is a need to develop additional guidance to inform changes to the way information is provided to autistic individuals, as well as adjustments to physical environments and police and court processes.
The committee also notes that Victoria appears to be the only Australian jurisdiction with an 'independent third person' program designed to help people with disability who are engaged with the justice system. The committee believes that programs such as this are an important safeguard that should be implemented more widely to support autistic people.
The committee recommends that the Australian Government work with state and territory governments and relevant stakeholders to develop nationally consistent guidance on the type of adjustments that should be made available to autistic people in justice settings. This should include:
the provision of autism-friendly information resources;
the involvement of disability advocates as standard practice in police interviews and during court proceedings; and
adjustments to physical environments and police and court interview processes.
The committee notes that, as with other service sectors, the interface between the justice sector and NDIS-funded services is a long-standing issue, which has been the subject of recommendations of the Joint Standing Committee on the NDIS in both 2017 and again in 2020. These recommendations related to the need to:
clarify what approved supports are available to NDIS participants in custody and how the National Disability Insurance Agency (NDIA) monitors and ensures NDIS participants access the supports they are entitled to while in custody;
establish a NDIA unit specialising in the interaction of the NDIS with the criminal justice system;
consider the appropriate division of responsibility for the funding of supports for participants in the criminal justice system; and
develop, publish and implement a strategy for engaging with participants in custody to ensure that these participants:
are not unfairly disadvantaged in planning; and
are assigned to planners who have the expertise to work with them.
In light of evidence provided to the committee, it is not clear whether the response to these recommendations has been adequate or effective.
The committee recommends that, as part of the inquiry into the National Disability Insurance Scheme proposed in Recommendation 6, the effectiveness of the National Disability Insurance Agency's response to previous recommendations of the Joint Standing Committee on the NDIS be assessed in relation to support for autistic people within the justice system.
While transitions out of prison can be difficult for many people, they are a particularly high-risk time for autistic individuals. In addition to reports of a lack of community supports for transitioning prisoners, the committee heard mixed reports about the adequacy of NDIS support for these transitions, including in relation to:
the Complex Support Needs Pathway;
the introduction of Justice Liaison Officers;
challenges establishing NDIS plans for prisoners prior to release; and
provider of last resort arrangements.
The committee notes that the Joint Standing Committee on the National Disability Insurance Scheme has previously recommended that the NDIA:
publish information about the Complex Supports Needs pathway, including about who is eligible, and how the NDIA defines the term 'complex support needs'; and
as a matter of urgency, publicly release the outcomes of the Maintaining Critical Supports project and its policy on provider of last resort arrangements.
Based on the evidence provided to the committee, it is not clear what actions have been taken in response to these recommendations.
The committee recommends that the National Disability Insurance Agency publish
the findings of its review into the Complex Support Needs Pathway; and
the Maintaining Critical Supports Framework, including its policy on provider of last resort arrangements.
The committee recommends that, as part of the inquiry into the National Disability Insurance Scheme proposed in Recommendation 6, the effectiveness of the Justice Liaison Officer program be assessed in relation to supporting the transition of autistic people from detention settings into the community.
Senator Hollie HughesSenator Carol Brown
Senator Jim Molan AO DSCSenator Marielle Smith