Disability at the margins: limits of the law

Abstract

People with mental and cognitive disability are over-represented as both victims and offenders. In Australia, those with disability who are most likely to be incarcerated are persons from poor, highly disadvantaged families and neighbourhoods, as well as Indigenous Australians. This article first clarifies definitions of mental and cognitive impairment and complex needs. Evidence from studies using administrative data from criminal justice and human service agencies, work by the Aboriginal Disability Justice Campaign, reports by the Australian Human Rights Commission and New South Wales and Victorian Law Reform Commission references are analysed using a critical disability criminology approach. These reveal that protections for people with multiple and complex support needs are lacking; diversions and therapeutic approaches do not address the underlying causes of concerning behaviour engaged in by people with disability. It is argued that the law is a blunt and often punitive instrument by which to address these matters. There is evidence of the social and financial benefits that would flow to the individual, family and community from a wholesale change in the way the law, the criminal justice system, and human and social agencies work together to support people with mental and cognitive disability.