2 The case for change
In Australia, 45 per cent of people with disabilities live in poverty or near poverty. This situation has worsened since the mid-1990s. Employment rates for people with disabilities have been decreasing and so too have educational outcomes. Women and girls with disability experience violence at significantly higher rates, more frequently, for longer, in more ways and by more perpetrators. One study indicates 90 per cent of Australian women with an intellectual disability have been subjected to sexual abuse, more than two-thirds of them before they turned 18 years of age.
Among many indicators:
The Australian Institute of Health and Welfare reported the proportions in 2012 of:
- prison entrants who report that they have ever been told by a doctor, psychiatrist, psychologist or nurse that they have a mental health disorder (including drug and alcohol abuse): 38%
- prison dischargees who report that they have ever been told they have a health condition— mental health, including drug and alcohol abuse: 46%
Research by the Australian Institute of Criminology shows:
- across Australia, over the years 1989-1990 to 20102011, 42 per cent of the 105 people shot by police, had a mental illness.
In 2013 the Senate Legal and Constitutional Affairs References Committee reported the findings of its inquiry into justice reinvestment approaches to criminal justice. The Committee drew attention to a wide range of studies and submissions indicating that people who interact with the criminal justice system often have:
- high levels of hearing impairment
- cognitive disabilities
- acquired brain injury
- mental illness
- language impairment.
In conducting its Australia wide Profiles of Disability survey for 2009 the Australian Bureau of Statistics (ABS) reported substantial population differences in the incidence of disability. The ABS found:
- After adjusting for differences in the age structure of the two populations, Aboriginal and Torres Strait Islander people were 1.7 times as likely as non-Indigenous people to be living with disability
- Aboriginal and Torres Strait Islander children aged 0-14 years had much higher rates of disability than non-Indigenous children (14.2% compared with 6.6%). The differences were statistically significant for both boys (19.9% compared with 8.3%) and girls (8.9% compared with 4.8%)
- Aboriginal and Torres Strait Islander adults in the age range of 25-54 years had rates of disability that were between 2.0 and 2.5 times the corresponding rates for non-Indigenous adults
- In the 35–44 years age group, the differences in disability rates for Aboriginal and Torres Strait Islander people and non-Indigenous people were significantly different for both men (35.1% compared with 12.3%) and women (29.0% compared with 12.5%).
The ABS further reports:
- The age standardised imprisonment rate for Aboriginal and Torres Strait Islander prisoners at 30 June 2013 was 1,977 Aboriginal and Torres Strait Islander prisoners per 100,000 adult Aboriginal and Torres Strait Islander population. The equivalent rate for non-Indigenous prisoners was 131 non-Indigenous prisoners per 100,000 adult non-Indigenous population.
- The rate of imprisonment for Aboriginal and Torres Strait Islander prisoners was 15 times higher than the rate for non-Indigenous prisoners at 30 June 2013, which was consistent with 2012.
In light of all these indicators the Commission is compelled to conclude that people with disabilities have higher rates of interaction with the criminal justice system than other Australians. We note with grave concern the high rate of disability among Aboriginal and Torres Strait Islander peoples and that they are over-represented in Australian prisons.
The Australian community spends $11.7b annually on the criminal justice system and this figure is rising. Recent reports highlight the considerable human and economic costs involved when people with disabilities have repeated contact with the criminal justice system or are incarcerated. More importantly, these same studies highlight the significant savings that can be made by the provision of early support and diversion and the improved outcomes for the lives of people with disabilities and the community.
In its Report on Government Services 2012, the Productivity Commission says:
Nationally in 2010-11, the total cost per prisoner per day, comprising net operating expenditure, depreciation, debt servicing fees and user cost of capital, was $289.
The real net operating expenditure (which excludes capital costs and payroll tax) per prisoner per day was $216 nationally in 2006-07 compared with $221 in 2010-11.
Nationally, the real net operating expenditure (which excludes capital costs and payroll tax) per offender per day increased from $15 in 2006-07 to $20 in 2010-11.
These figures equate to an annual total cost of $105,485 per person in a correctional facility and net operating expenditure of $80,665 per person in a correctional facility or $7,300 per person subject to community corrections. The expenditure difference between custodial correction and community correction is $73,365 per person.
A recent cost-benefit analysis of early support and diversion indicates a number of small but successful initiatives appear to improve well-being and other outcomes for people with mental health disorders and cognitive impairment. These initiatives result in diversion from the criminal justice system. The study indicated that for every dollar spent on the early investment, between $1.40 and $2.40 in government cost is saved in the longer term.
In a related paper Professor Eileen Baldry and colleagues come to the following conclusion concerning numerous case studies based on a well-controlled dataset from NSW:
The evidence is stark that ... early lack of adequate services is associated with costly criminal justice, health and homelessness interactions and interventions later ... Millions of dollars in crisis and criminal justice interventions continue to be spent on these vulnerable individuals whose needs would have been better addressed in early support or currently in a health, rehabilitation or community space. It is obvious that access to integrated and responsive support services including drug and alcohol support, mental health and disability services or other psycho-social forms of support is needed.
The National Indigenous Drug and Alcohol Council cost-benefit analysis has shown that the long-term savings for diversion to community-based rehabilitation for those with substance use problems are as high as $111,458 per offender.
Correctional measures can be a just outcome for a person with a disability. However, allowing for the costs of administering diversion programs, the gap of $73,365 in favour of community correction over custodial correction suggests at the very least that diversion within the criminal justice system can bring economic benefits. Material presented elsewhere in this report indicates that diversion away from the criminal justice system, or appropriate diversion within it, can significantly improve the lives of people with disabilities by better respecting their human rights.
Violence is a personal cost to victims and perpetrators, their friends and families. It is an economic burden to the whole community. People with disabilities are exposed to violence at rates that exceed those for many others in the community.
In our consultations the Commission heard many accounts of high levels of violence in the community at large and in institutional settings, including within the criminal justice system. Comprehensive statistics are difficult to obtain and it appears highly likely that violence affecting people with disabilities is under reported.
In December 2013 the ABS released the results of the Personal Safety Survey for 2012. These results show people with disabilities or a long-term health condition experienced higher levels of violence than other people in the preceding 12 months. The ABS cautioned that there are significant issues that could cause the actual levels of violence to be higher than reported in the survey.
This year the cost of violence against women and children to the Australian economy reached $14.7 billion. Almost half of this figure (48 per cent) was attributed to the pain, suffering and premature mortality rates experienced by victims and survivors of violence.
As noted above, the rates of violence against women with disability are high. The National Council to Reduce Violence against Women and their Children has estimated that by 2021-2022 the cost of violence perpetrated against women with disability will be nearly $3.9 billion.
These high human and economic costs of violence could be reduced if the social disadvantages of people with disabilities are addressed and their engagement with the criminal justice system lessened.
 Pricewaterhouse Coopers, Disability expectations : Investing in a better life, a stronger Australia (November 2011) p 11. At http://www.pwc.com.au/industry/government/publications/disability-in-australia.htm (viewed 24 January 2014).
 Women With Disabilities Australia, Submission to the Australian Government Consultation Paper: Family Violence – Improving Legal Frameworks (June 2010) p 6. At http://www.wwda.org.au/subs2006.htm (viewed 24 January 2014).
 Victorian Health Promotion Foundation (VicHealth), Preventing Violence Against Women in Australia, Research Summary, Victorian Health Promotion Foundation (October 2011). At http://www.vichealth.vic.gov.au/Publications/Freedom-from-violence/Violence-against-women-in-Australia-research-summary.aspx (viewed 24 January 2014).
 Australian Institute of Health and Welfare, The health of Australia’s prisoners 2012 (2013) p 35. At http://www.aihw.gov.au/publication-detail/?id=60129543948 (viewed 30 January 2014).
 Australian Institute of Criminology, Police shootings of people with a mental illness Research in Practice No. 34 (2013). At http://www.aic.gov.au/publications/current%20series/rip/21-40/rip34.html (viewed 30 January 2014).
 Australian Bureau of Statistics, Profiles of Disability, Australia, 2009, Comparison of Disability Prevalence between Aboriginal and Torres Strait Islander Peoples and Non-Indigenous Peoples (2013). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4429.0~2009~Main%20Features~Comparison%20of%20disability%20prevalence%20between%20Aboriginal%20and%20Torres%20Strait%20Islander%20peoples%20and%20non-Indigenous%20peoples~10029 (viewed 30 January 2014).
 Australian Bureau of Statistics, Prisoners in Australia, 2013, Aboriginal and Torres Strait Islander Prisoners (2013). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4517.0main+features62013 (viewed 30 January 2014).
 Australian Institute of Criminology, Australian Crime: Facts and figures: 2011, Chapter 7: Criminal justice resources (2012). At http://www.aic.gov.au/publications/current%20series/facts/1-20/2011/7_resources.html (viewed 30 January 2014).
 Steering Committee for the Review of Government Service Provision, Report on Government Services 2012, Vol 1, Productivity Commission (2012) pp 8.26 - 8.27. At http://www.pc.gov.au/gsp/rogs/2012 (viewed 24 January 2014).
 Ruth McCausland, Eileen Baldry, Sarah Johnson and Anna Cohen, People with mental health disorders and cognitive impairment in the criminal justice system: Cost-benefit analysis of early support and diversion, Report based on a paper presented at the Australian Human Rights Commission and University of New South Wales roundtable Access to Justice in the Criminal Justice System for People with Disability, April 2013 (August 2013) p 12. At http://www.humanrights.gov.au/sites/default/files/document/publication/Cost%20benefit%20analysis.pdf (viewed 24 January 2014).
 Eileen Baldry, Leanne Dowse, Ruth McCausland and Melissa Clarence, Lifecourse institutional costs of homelessness for vulnerable groups, Final Report, Department of Families, Housing, Community Services and Indigenous Affairs (May 2012) p 5. At http://apo.org.au/research/lifecourse-institutional-costs-homelessness-vulnerable-groups-2012 (viewed 30 January 2014).
 National Mental Health Commission, A Contributing Life, the 2013 National Report Card on Mental Health and Suicide Prevention, National Mental Health Commission (2013) p 74. At http://www.mentalhealthcommission.gov.au/our-report-card.aspx (viewed 24 January 2014).
 Australian Bureau of Statistics, Personal Safety, Australia, 2012 (December 2013). At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/4906.0Main%20Features12012?opendocument&tabname=Summary&prodno=4906.0&issue=2012&num=&view= (viewed 24 January 2014).
 For example, a specific requirement of the Personal Safety Survey (PSS) was that interviews were conducted in private. Interviews were not able to be conducted where a participant required another person to assist with communication. Thus the PSS may under represent those with a profound or severe communication disability. In addition, the scope of the PSS was confined to persons living in a private dwelling. It did not consider people with a disability who usually reside in non-private dwellings such as institutions. See Australian Bureau of Statistics, Personal Safety, Australia, 2012, Explanatory notes (December 2013). At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4906.0Explanatory%20Notes12012?OpenDocument (viewed 24 January 2014).
 White Ribbon, A 14.7 Billion Dollar Burden: Revealing the national cost of violence against women (15 July 2013). At http://www.whiteribbon.org.au/update/a-14-7-billion-dollar-burden-revealing-the-national-cost-of-violence-against-women (viewed 24 January 2014).
 National Council to Reduce Violence against Women and their Children, The Cost of Violence against Women and their Children, Department of Families, Housing, Community Services and Indigenous Affairs (March 2009) p 9. At http://www.dss.gov.au/our-responsibilities/women/publications-articles/reducing-violence/national-plan-to-reduce-violence-against-women-and-their-children/economic-cost-of-violence-against-women-and-their-children (viewed 24 January 2014).