Why Aboriginal people with disabilities crowd Australia's prisons

Australia imprisons thousands of Aboriginal people with mental and cognitive disability each year. A widespread lack of understanding – and action – underpins this shameful breach of human rights.

The number of people in Australian prisons recently reached an all time high of 33,791, with 27% or 9,264 of those prisoners identifying as Aboriginal and Torres Strait Islander. People with mental and cognitive disability who are poor, disadvantaged, and Aboriginal are overrepresented in this increase.

To clarify, mental disabilities include disorders such as depression, schizophrenia, anxiety, personality disorders and psychosis. People can experience these for a short time or throughout their lives. While cognitive disability covers impairments such as intellectual disability, acquired brain injury, dementia and fetal alcohol spectrum disorder (FASD). These are ongoing impairments in comprehension, reason, judgement, learning or memory.

A predictable path

A study we released today shows how Aboriginal people with mental and cognitive disability are being “managed” by police, courts and prisons due to a dire lack of appropriate community-based services and support.

The Indigenous Australians with Mental Health Disorders and Cognitive Disability in the Criminal Justice System (IAMHDCD) Project draws on a unique data set of 2,731 people who’ve been imprisoned in New South Wales, which holds more than a third of Australia’s prison population. A quarter of people in the data set are Indigenous.

Throughout this article, we use “Indigenous” to match government data collection terms, and “Aboriginal” in our study findings to reflect the preference of the communities we worked with.

Our study includes data from police, courts, legal aid, juvenile justice and corrective services as well as government housing, disability, health and community services. The data shows that Indigenous people experience earlier and greater contact with the criminal justice system and are more disadvantaged generally than non-Indigenous people with mental and cognitive disabilities.

Aboriginal researchers in our team also spoke with Aboriginal people with mental and cognitive disability, their families, communities and service providers in four sites across NSW and the Northern Territory so we could better understand their experiences.

We found Aboriginal people with mental and cognitive disability are forced into the criminal justice system early in life. Coming from poor and disadvantaged backgrounds, they receive little support from community and disability services or the education system.

These people are often seen as badly behaved or too hard to control, and left to police to manage. While this also applies to non-Indigenous people with disability from disadvantaged backgrounds, we found it’s much more serious for Indigenous people.

Indigenous people in the group we studied were 2.6 times more likely to have been in out-of-home care as children.

Their age of first contact with police was 3.4 years younger than non-Indigenous people, and they had a higher rate of contact with police as both victim and offender.

Indigenous people were 2.4 times more likely to be in juvenile justice custody than non-Indigenous people.

And they had higher numbers and rates of convictions and more episodes of remand in prison (unsentenced).

Indigenous people had higher rates of hospital admissions and were 1.2 times more likely to have been homeless – in a group with very high rates of homelessness generally.

Those with complex needs (multiple diagnoses and disability) – particularly women – were the most disadvantaged. And Indigenous people from highly disadvantaged areas, especially regional and remote areas, fared the worst.

Four key drivers

Our research shows four major issues underlie these shocking statistics:

1. People don’t understand what cognitive disability is

Families, service workers, teachers, police, lawyers and magistrates don’t understand enough about cognitive impairment. They often think cognitive impairment and mental illness are the same. People with cognitive impairment, for instance, are often dealt with under mental health laws.

But imprisonment has serious consequences for people with cognitive impairment. People with FASD face difficulties due to low levels of understanding and diagnosis, as do those with borderline intellectual disability, because they are not recognised as having a disability by services and may not be supported by the new National Disability Insurance Scheme (NDIS).

2. High levels of stress in some Aboriginal communities

Aboriginal communities are under a great deal of stress from socioeconomic disadvantage, loss, grief and trauma. This comes from generations of Aboriginal people experiencing dispossession, racism, forcible removal of children, poor education and health care, overcrowded housing, early deaths of family and community members, over-policing, and high rates of incarceration.

3. Many Aboriginal people in the criminal justice system have ‘complex support needs’

Aboriginal people with more than one type of impairment or disability are more likely to be involved in the criminal justice system. Families and communities are overwhelmed, and services are not set up to provide the kind of specialist support needed by people who experience multiple mental and cognitive disabilities, as well as drug and alcohol dependency.

Different diagnoses and disorders can become meshed together and masked by each other (this is known as “complex support needs”). It’s difficult for Aboriginal people with complex support needs to get appropriate help because services often focus on only one area – mental health, or intellectual disability, or drug and alcohol rehabilitation – and also because of racism and poverty.

4. A lack of appropriate support for Aboriginal people with mental and cognitive disability

From a young age, Aboriginal people with mental and cognitive disability are dealt with by systems of control rather than systems of care or protection. They can face discrimination on the basis of race and disability as well as having a criminal record; feel isolated and disconnected from family and community; and have limited access to appropriate community-based support options.

There are very few alternatives to prison and a lack of appropriate programs in prison or after release, particularly for those from regional or remote areas. And that makes return to prison very likely.

Our research found police and prisons have become governments’ default way of managing this vulnerable group rather than appropriately supporting them to have a life of stability and self-worth in the community. Australia’s imprisonment and re-imprisonment of Aboriginal people with mental and cognitive disability is not only shameful, it’s entirely predictable and preventable.

This is the first in a series of articles by this research team. Click here to read more on the Indigenous Australians with Mental Health Disorders and Cognitive Disability in the Criminal Justice System (IAMHDCD) Project.

Eileen Baldry receives funding from The Australian Research Council, FaCS NSW, Dept of Justice NSW. She is affiliated with PIAC & CRC.

Elizabeth McEntyre was the Australian Postgraduate Award Industry recipient for the IAMHDCD Project.

Ruth McCausland is Vice-President of the Board of the Community Restorative Centre.