How First Nations stories and the Disability Royal Commission can help to Close the Gap

By Lauren Macaulay, Your Story National Coordinator, National Aboriginal and Torres Strait Islander Legal Services

Today is National Close the Gap Day. In the 2023 Closing the Gap Implementation Plan released by the Commonwealth Government, disability is recognised as a ‘cross-cutting area’ that is relevant across numerous priority reform areas. A First Nations Disability Data Scoping Study and a Disability Sector Strengthening Plan have been included in the Implementation Plan as ways of working towards Closing the Gap outcomes.

Outcomes 10 and 11 are that First Nations adults and young people are not overrepresented in the criminal justice system. Two justice targets have been set for these outcomes: that by 2031, the number of First Nations adults in prison will be reduced by at least 15 percent; and that the number of First Nations young people will be reduced by at least 30 percent. When progress against these targets was last assessed, the target concerning adults in prison was ‘not on track’ to be met.

Crucial to achieving these justice targets is the provision of accessible and culturally appropriate diagnostic, assessment and disability support services for First Nations people. Too often, First Nations people end up in the criminal justice system due to a lack of disability supports. Entrenched ableism in the legal system often leads to unjust outcomes for these individuals. This amounts to the criminalisation of disability.

In its 2017 report, ‘Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’, the Australian Law Reform Commission proposed many solutions to the inherent issues in the criminal justice system, however discussion regarding disability was largely limited to fitness to plead. This Disability Royal Commission presents a real opportunity for broader thinking and reforms.

The prevalence of disability amongst people in prison is not clearly understood due to a lack of data in this area. The same can be said about the prevalence of disability amongst First Nations communities generally, where disability is believed to be significantly undiagnosed and underreported. These knowledge deficits must be filled in a way that honours data sovereignty and respects persons with lived experience as experts in their own lives. Further, that recognises and is informed by the knowledge and expertise of the First Peoples Disability Network, who have been pioneers and key stakeholders in the disability movement for over 40 years.

The data snapshots that do exist regarding the prevalence of disability in prison suggest that over-representation is significant. In Western Australia, a study to estimate the prevalence of Foetal Alcohol Spectrum Disorder (FASD) amongst young people at Banksia Hill found that 89 percent of participants had at least one domain of severe neurodevelopmental impairment and 36 percent of participants were diagnosed with FASD. Seventy-four percent of the study participants were Aboriginal.

This Disability Royal Commission has a role to play in Closing the Gap. A robust final report and recommendations would provide a useful roadmap for addressing inequality and reimagining the system to be humane and fair. This will require accessible pathways to assessment and diagnosis, better NDIS service coverage in regional and remote areas, NDIS and Medicare in prisons and growing the First Nations disability support workforce and the delivery of disability services by Aboriginal Community Controlled Organisations.

The implementation of a National Human Rights Charter should also be recommended as a safeguard that will promote and protect the human rights of persons with a disability and position these rights as critical considerations in the development of new laws and policies. A National Human Rights Charter will locate shared values such as fairness, respect and equality as central to government decision making and ensure that everyone understands their rights and freedoms.

Enshrining and positioning human rights in this way will serve the interests not only of persons with a disability, but of society as a whole. This is because injustice anywhere is injustice everywhere and an affront to the safety and dignity of us all.

Let this be kept at the forefront of our minds as we contemplate the distance still to be travelled in Closing the Gap.