Disability in the Criminal Justice System of Australia

Introduction: Overview of the Matter

It is a fact that young people who have mental health disorders are overrepresented in the justice system. Such overrepresentation is an indicator of the underlying societal and judicial failures and shortcomings that have led to inadequate legislation to reduce the trend. While various changes have occurred in Australia to reflect occasional concerns about the law, order, and the welfare of child offenders, from a punishment approach towards restorative justice and reintegration into the community, significant achievements have been made. Questions have been raised concerning the effectiveness of such approaches (NMHC 2014). Mental health disorders are directly linked to a higher rate and probability of committing crimes among young people. This situation is an increasing concern around the world. According to Grisso (2004), more than 70% of all youths who are involved in the juvenile justice system have at least one mental health disorder as compared to only 22% of the youths in the general population. However, the main questions relate to how the criminal justice system handles juveniles who have intellectual disabilities, owing to their increasing number in the justice system (Hiday & Ray 2010). It is evident that there is something wrong with the current approaches and hence the need to review the situation to have better outcomes for this group in the criminal justice system.

This paper expresses concerns about the current legislation and approaches towards the prevention of juvenile crime, as well as a reduction in the high recidivism rates. The question is, ‘is there any intervention that can be made on Australian young people who have an intellectual disability to protect them from committing a crime, rotting in jail, or wasting their youthfulness in the corridors of justice?’ Is it that opportunities for treatment and the right support are not available when the victims need them? The prison environment is not a good place to instill discipline in people who have intellectual disabilities. In any case, it sets the path for more criminal cases due to its punitive and mental health-eroding environment. The problem is further aggravated by the double discrimination of former detainees, which they receive once they try to re-establish life in society. First, they are discriminated against for their mental health and secondly for their history in prison. The high rate of crime and recidivism in this group is costly to the government and the society. For instance, according to Grisso (2007), the government spends approximately $1 million annually for each incarcerated mentally ill juvenile. This cost is even higher when the rate of recidivism is high. Consequently, the need for change is evident. Alternative approaches must be implemented to solve the problem.

Current Approaches towards Juvenile offenders with Intellectual Disabilities

Criminal justice legislation has many purposes in the Australian integrity structure. For the justice system, the main aim is to punish offenders or deter the occurrence of criminal activities in society. For instance, sentencing is aimed at providing adequate punishment for the specific offense under consideration. It is also used as a crime deterrence mechanism whose goal is to protect the community from harm by criminal elements. It also aimed at ensuring accountability for those who commit a crime, as well as promoting rehabilitation. However, as it stands, many questions are left unanswered when handling youngsters who have intellectual disabilities. Do the approaches to sentencing perform well for this group? In the current legislation, a judge is allowed to order the detention of an accused person who has mental disabilities to be held and kept in a manner that the judge deems fit, regardless of the duration. Such an approach is very counterproductive since whatever the judge deems ‘fit’ might not necessarily reflect the best practices or the best interests of the accused, owing to his or her vulnerable condition. For instance, indefinite detention is associated with increased mental health problems. For juveniles who are already having underlying mental problems, this approach can do even more harm. According to Bates (2001), such detention can lead to anxiety, hopelessness, depression symptoms, paranoia, delusions, and self-harm, which only act to make matters worse.

There has been an increased debate on whether juveniles who have intellectual disabilities should be jailed in the first place. Such a question might seem very straightforward. Many people might argue that jailing is an important part of the criminal justice system. However, upon closer look, the issue of jailing requires more research, especially in the light of the ineffectiveness of incarceration as a crime deterrence and rehabilitation process for offenders (NMHC 2014). Further, questions have been asked concerning the importance of the involvement of the court in the correctional process of juveniles who have mental health disorders. Such trends clearly indicate a realisation and awareness among policymakers of the ineffectiveness of criminal justice system in dealing with intellectually disabled juvenile offenders.

According to Gorman-Smith and Loeber (2005), criminality in young people is a product of many underlying factors, which are not limited to mental health alone. A background check of many juvenile offenders indicates a troubled past that includes, but not limited to parental neglect, drug abuse, and sexual abuse among others. For instance, almost 60% of Australian juvenile offenders attribute their criminal behaviour to substance abuse (Hiday & Ray 2010). Further, it is worrisome since most of these young offenders at 49% have had a prior diagnosis, assessment, or treatment by a doctor or a psychiatrist for emotional or mental-related health problems. Therefore, the situation leads to the question of whether preventive measures should be used to protect the young people from advancing to criminal behaviour if such measures are emphasised (AIHW 2010). As such, in the light of the failure of the criminal justice system approaches to address juvenile crime, especially for those with mental disabilities, it is evident that the door is open for more research and legislation. The research should focus on the identification of risk factors for crime in this group in an effort to foster the participation of the government, families, and society in helping such youths to lead a more meaningful life that will not lead to crime. It is crucial to carefully consider and support such legislation by known and acceptable concepts of dealing with juveniles who have this disability.

Important Policy Change

To address the issues that have been identified above, there is a need for changes in the current legislation to be made on approaches for dealing with juvenile crime for those who have intellectual disabilities. These people have specific needs and characteristics that cannot be adequately met through the criminal justice system.

Firstly, such legislation must consider all stakeholders in the society, including the government, local communities, and other partners who engage in matters that relate to rehabilitation of juveniles. In this process, it will be possible to come up with better approaches to addressing the challenges that this group faces. For effectiveness of the legislation, there is a need to rely on evidence-based approaches that have been put forward in addressing criminality, especially on matters relating to punishment vs. rehabilitation. Evidence-based approaches will eliminate trial and error approaches. They will also help to define the best practices for the problem. For instance, in the current Australian legislation, the problem of juvenile crime is applied across the divide, meaning that no unique approaches have been established to handle case-by-case specific situations. It is evident that other background factors in addition to mental challenges play a key part in juvenile crime (Grisso 2004). These background factors include drug abuse, family culture, lifestyle, income, history of abuse, and crime within the family setting.

Therefore, it is important to put in place measures that will ensure that young people who have mental problems and/or are at risk committing crime are helped early in advance. Since the plan will ensure that they do not advance to criminality, it will help in keeping them out of the criminal justice system (Gorman-Smith & Loeber 2005). Another important approach is an all-inclusive training programme for families that accommodate such young people to ensure that they (families) get support both from within and without the family environment. As discussed above, family history, lifestyle, and income among other elements are contributory factors of criminal behaviour for young people. Therefore, addressing the matter from within the family is important.

There is a need to empower local rehabilitation facilities through increased funding to ensure that they can handle such cases and/or reduce the burden of criminal justice system. For a long time, community-based mental health facilities have been neglected, yet they may be very important in addressing this problem. Some of the factors that lead to deterioration of mental health are community-specific from characteristics such as poverty and neighbourhood. Consequently, funding these community facilities can help to come up with unique and community specific approaches to addressing the mental health needs of the young people in the affected localities. Such financing should go to the awareness programme on mental health in the community as a way of ensuring more support for such initiatives. Lastly, it is important to understand that workers in such facilities require the right training and skills to offer adequate and responsive services (AIHW 2010). As such, in addition to equipping the facilities, the funding will go towards the recruitment of additional staff members, as well as training programmes to ensure excellent service delivery.


In the light of the issues raised in this submission, it is important for legislation procedures to be initiated towards making policies and laws that will address the challenge of juvenile offenders who have intellectual disabilities. The Australian government needs to regard the group as special and one that needs attention. The victims have much potential that needs to be tapped and hence the need to adopt mechanisms that will make this group a useful class in the society. However, such legislation should not eliminate the involvement of criminal justice system. This option should be adopted as a last resort on a case-to-case basis where such scenarios cannot be effectively addressed through the above-proposed mechanisms.


AIHW 2010, Juvenile justice: a new national collection, Australian Institute of Health and Welfare, Canberra.

Bates, M 2001, ‘The Child and Adolescent Functional Assessment Scale: review and current status’, Clinical Child and Family Psychology Review, vol. 4 no. 1, pp. 63-84.

Gorman-Smith, D & Loeber, R 2005, ‘Are developmental pathways in disruptive behaviours the sane for girls and boys?’, Journal of Child and Family Studies, vol. 14 no. 1, pp. 15-27.

Grisso, T 2004, Double Jeopardy: Adolescent Offenders with Mental Disorders, University of Chicago Press, Chicago, IL.

Grisso, T 2007, ‘Progress and perils in the juvenile justice and mental health movements’, Journal of the American Academy of Psychiatry and the Law, vol. 35 no. 2, pp. 158-167.

Hiday, V & Ray, B 2010, ‘Arrests two years after exiting a well-established mental health facility’, Psychiatric Services, vol. 61 no. 5, pp. 263-268.

NMHC 2014, The Justice System and Mental Health, Web.