Volume 8, Criminal justice and people with disability

Recommendation 8.1 Conditions in custody for people with disability

State and territory governments should uphold the rights of people with disability who are in custody. Consistent with article 14 of the Convention on the Rights of Persons with Disabilities, all corrective service and youth justice agencies should provide people with disability with the disability supports they require to place them in the same position, so far as feasible, as other people in custody.

Victorian Government response to recommendation 8.1

We accept this recommendation in full.

However, further investment is needed to ensure services can meet demand.

We need to make sure information and environments in custodial settings are accessible for people with a disability.

We know that young people with disability are overrepresented in Youth Justice. We have committed to introducing a standalone legislative framework for Youth Justice in Victoria, called the Youth Justice Bill.

The Bill will include ensuring that young people's rights are upheld, that young people receive ongoing access to health practitioners and supports, and that they are treated in a way that responds to their needs, including disability needs.

The updated Youth Justice Primary Health Quality Framework 2023 also strengthens requirements for youth custodial primary health providers to respond to the specific needs of children and young people with a disability who are in custody. This includes young people with cognitive impairment, mental illness, acquired brain injury, sensory, physical and neurodiverse disabilities.

We have updated the Custodial Forensic Youth Mental Health Service practice guide. The service now has greater capacity to provide neurodevelopmental assessments and interventions.

This will support assessment of children and young people while in youth justice custody. It will also support them to transition back to the community, providing advice and consultation to community services involved with the child or young person.

Specialist disability supports and services are also available to adults in Victorian prisons. However, further investment is needed to ensure services meet demand. This was identified in the Victorian Auditor-General’s Office 2023 report into correctional services for people with intellectual disability or acquired brain injury.

The Prison Disability Support Initiative delivers services that respond to a person’s non-physical disability needs. This includes support to access disability-specific and transitional services, specialist clinical assessment, case-specific or general consultation, therapeutic intervention, and cognitive impairment training for the correctional workforce.

The Prison Disability Support Initiative also supports people to achieve goals such as employment, access to the NDIS and supported disability accommodation.

Corrections Victoria offers 2 specific adapted-intervention offence-specific programs for sexual offenders or violent offenders with a cognitive impairment. Interventions provide relevant services for people with significant responsivity issues that would present as a barrier to group-based treatment.

The Healthcare Services Quality Framework for Victorian Prisons 2023 (Quality Framework) strengthens requirements for adult prison healthcare providers to improve their understanding of the specific health needs of priority groups, including people with disabilities.

Prison health providers also work with multidisciplinary teams and custodial staff to meet the specific needs of people in prison with disability. Prison health service providers must also assess for, supply, fit and maintain necessary medical aids.

Forensic mental health services support NDIS applications within custodial bed-based settings. The bed-based units have a multidisciplinary team: psychiatrists, occupational therapists, social workers and psychologists.

Recommendation 8.2 Disability awareness in OPCAT monitoring

In implementing the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Australian Government, in consultation with the state and territory governments, should support the development of a human rights education and training strategy that includes disability awareness training for National Preventive Mechanisms (NPMs), detention authorities and their staff. NPMs should:

• engage with disability organisations about the needs of people with disability in places of detention
• obtain training and education for their staff on the types of disability and needs of people with disability in places of detention, including the impact of intersectional disadvantage
• obtain the views of people with disability in places of detention by directly engaging with them about their experiences in places of detention
• have effective mechanisms for obtaining the views of people with disability in places of detention.

Victorian Government response to recommendation 8.2

We will consider this recommendation further.

We are seeking a commitment from the Commonwealth to provide sufficient and ongoing funding to establish a National Preventive Mechanism in Victoria.

Putting this recommendation into action in Victoria depends on negotiations with the Commonwealth about funding.

We support the principles of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

We want to protect all people deprived of liberty, including people with disability, from torture and other cruel inhuman, or degrading treatment or punishment.

If we can resolve the matter of funding with the Commonwealth, National Preventive Mechanisms established in Victoria will be designed to meet the needs of people with disability in places of detention. This includes by providing appropriate training.

Joint response to recommendation 8.2

Commonwealth, ACT, NT, Tas: Accept in principle

NSW, Qld, SA, Vic, WA: Subject to further consideration

The following response is provided by the Commonwealth, ACT, NT, SA, Tas and WA:

The Australian Government and state and territory governments are committed to continuing to consider and progress reform to better protect the human rights of people with disability in places of detention.

All governments continue to cooperatively and progressively work towards implementation of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), including resolving ongoing funding arrangements.

The following response is provided by NSW, Qld and Vic:

All governments continue to cooperatively and progressively work towards implementation of OPCAT, subject to the resolution of sufficient and ongoing funding from the Commonwealth and the resolution of implementation issues, including the Commonwealth leading work in consultation with states and territories to reach agreement on the definition and scope of places of detention.

Recommendation 8.3 Prohibiting solitary confinement in youth detention

States and territories should:

1. introduce legislation to prohibit solitary confinement in youth justice settings (being the enforced isolation or segregation for any purpose of a child or young person for 22 or more hours in any day)
2. introduce legislation to prohibit the use of isolation (however described) in youth detention centres as punishment in any circumstance
3. review legislation, policy and procedures to ensure children with disability are not subjected to isolation practices amounting to solitary confinement
4. ensure legislation authorising isolation (including lockdowns) in youth detention centres provides for its use:
   • as a temporary response to behaviour that poses a serious and immediate risk of harm to an individual
   • as a last resort after all other measures to address risk have been exhausted
   • for a period that must not exceed a specified number of hours in any day
5. ensure legislation authorising isolation (including lockdowns) in youth detention centres provides at a minimum the following protections for children with disability:
   • a requirement to take into account the child’s disability needs before any isolation period is authorised
   • meaningful human contact during the period of isolation
   • access to the community equivalent standard of health care, including mental health services during the period of isolation
   • regular review of the order and circumstances authorising isolation
   • the creation and keeping of detailed records relevant to the period of isolation and the provision of a copy of such records to the relevant body with independent oversight of places of detention (such as the Inspector of Custodial Services).

Victorian Government response to recommendation 8.3

We accept this recommendation in full.

We have existing legislation policies and procedures in place that ensure solitary confinement is never used in Youth Justice custody.

Youth Justice only uses isolation in custody as a last resort, where all other reasonable steps have been taken. It is only used to ensure the safety and security of young people and the precinct.

Isolation is never used as a punishment. The Youth Justice Custodial Operating Manual sets out extensive accountability and reporting mechanisms for its use. All young people, including those with a disability, have access to health care while in isolation.

We will also introduce a standalone legislative framework for Youth Justice in Victoria, called the Youth Justice Bill.

It will include a robust and protective custodial framework to uphold young people’s rights.

It will also ensure young people receive ongoing access to health practitioners and supports in a way that responds to their needs, including disability needs.

Recommendation 8.4 Screening and assessment for disability in youth detention

State and territory governments should ensure timely screening and expert assessment are available for individual children with cognitive disability involved in the criminal justice system (including, but not limited to, detention settings) and that they receive appropriate responses, including therapeutic and other interventions.

Victorian Government response to recommendation 8.4

We accept this recommendation in full.

We screen young people for cognitive disability in our Youth Justice services. This must be done within 14 days of the commencement of a custodial or community order or a youth control order meeting is held (unless the young person has a known diagnosed cognitive disability).

The screening allows us to engage appropriate services to confirm cognitive disability.

We also ensure young people receive expert assessment. This must occur within 14 days from referral to the Youth Offending Program, based on eligibility including assessed level of reoffending risk, order type and length.

If these assessments identify special needs, including in relation to disability, the primary health service will engage with the appropriate team or service provider for follow-up.

Health staff working within the primary health or specialist mental health services must be suitably qualified, with levels of established experience and registration with the Australian Health Practitioner Regulation Authority.

The Youth Justice Primary Health Quality Framework 2023 also requires that primary health providers respond to the needs of children and young people with a disability who are in custody. This includes those with cognitive impairment, mental illness, acquired brain injury, sensory, physical and neurodiverse disabilities.

Health providers must also plan and deliver integrated care for children and young people with a disability in consultation with the child/young person and other stakeholders. They must establish and maintain links with Youth Justice Disability Services and custodial staff. This ensures continuity of services and referral to the NDIS if appropriate.

The Custodial Forensic Youth Mental Health Service’s neurodevelopmental team also works closely with Youth Justice Specialist Disability Advisors. Advisors maintain collaborative relationships with stakeholders such as community disability services, the Department of Families, Fairness and Housing and the National Disability Insurance Agency. They promote appropriate and continuing care for youth justice clients in both community and custodial settings.

The advisory team also manages a package of brokerage available to support expert assessment, including neuropsychological assessment.

Recommendation 8.5 Disability training for staff in youth detention

State and territory governments should ensure staff and officials in youth detention centres at all levels receive appropriate initial and ongoing training and support in relation to the needs and experiences of children with disability. This includes training and support on trauma-informed care and culturally appropriate and gender responsive approaches to children with disability in detention.

Victorian Government response to recommendation 8.5

We accept this recommendation in full.

Disability awareness training is mandatory for all staff as part of Youth Justice Foundations Training. This 3-hour training session includes information about:

• disability and associated needs and impacts
• identification and screening processes
• the effects of trauma on young people with disability
• strategies for working with and supporting children and young people with disability who may and may not have experienced trauma.

The Specialist Disability Advisor Team works with the Behaviour Support Specialist Team to make sure staff in custodial units use disability-focused practice.

We review training content each year to make sure it aligns with Certificate IV in Youth Justice.

We know that First Nations young people with disability are overrepresented in Youth Justice. We will include a disability lens for the current training package Supporting Aboriginal Young People and Children in Youth Justice.

We will also include a disability lens in training that covers best practice approaches to working with LGBTIQA+ young people for Youth Justice staff.

Recommendation 8.6 Western Australia youth detention staff retention

The Department of Justice of Western Australia should immediately review its youth justice staffing and recruitment model to ensure sufficient, suitably trained staff are available to supervise children and young people to minimise lockdowns and prevent the solitary confinement of detainees. This should include developing and implementing a recruitment and retention strategy that:

• addresses high staff attrition rates in youth detention
• promotes representation at senior management level of staff with disability and First Nations backgrounds
• includes measures to help staff access mental health support.

Victorian Government response to recommendation 8.6

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 8.7 Western Australia youth detention operating philosophy

The Department of Justice of Western Australia (through the Corrective Services Division) should:

• immediately cease confinement practices at youth detention centres amounting to solitary confinement of children with disability
• ensure decisions leading to the isolation of children with disability are made in conformity with legal requirements
• implement a new operating philosophy and service model to manage detainees with disability in a therapeutic, non-punitive, non-adversarial, trauma-informed and culturally competent way
• ensure the operating philosophy and implementation plan are developed in conjunction with people with disability and First Nations people
• release a clear timeline for publication of its new operating philosophy and service model for youth detention in Western Australia and the associated implementation plan
• raise awareness at every level of staff in the youth detention centres concerning the support needs of people with cognitive disability and foster respect for the rights of people with disability
• ensure lawyers representing detained clients are allowed adequate time and assured of confidentiality at youth detention centres to take instructions, especially where their clients have cognitive disability.

Victorian Government response to recommendation 8.7

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 8.8 Inspector of Custodial Services Act 2003 (WA)

The Western Australian Government should introduce and support legislation amending the Inspector of Custodial Services Act 2003 (WA) to provide the Inspector with a discretion to demand a response from the department or other relevant agency, within a specified time, to recommendations of the Inspector included in a report to Parliament. This should include the steps (if any) taken by the agency in response to the recommendations and an explanation of why steps have not been taken (if that be the case).

Victorian Government response to recommendation 8.8

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 8.9 Use of seclusion in New South Wales Justice Health and Forensic Mental Health Network

The New South Wales Government should review existing policy regarding the use of seclusion for adults with cognitive disability in the Justice Health and Forensic Mental Health Network, including the use of clearly designated authorisation and mandatory clinical and administrative review.

Victorian Government response to recommendation 8.9

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 8.10 Transition from custodial supervision in the Northern Territory

The Northern Territory Government should provide supported step-down accommodation in community-based settings for people with disability subject to custodial supervision orders.

Victorian Government response to recommendation 8.10

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 8.11 Information for courts and legal practitioners

The Commonwealth, state and territory criminal justice systems should provide information about seeking or making adjustments and supports and services for people with disability, and the circumstances in which they may be required. This information should be made available to judicial officers, legal practitioners and court staff, including through practice notes or bench books.

Victorian Government response to recommendation 8.11

We accept this recommendation in principle.

We will work with the Judicial College of Victoria to consider whether we can meet this recommendation by updating existing practice notes and bench books.

Joint response to recommendation 8.11

Commonwealth, ACT, NSW, NT, Qld, SA, Tas, Vic: Accept in principle

WA: Accept

The Australian Government and state and territory governments are committed to ensuring that people with disability have equal access to justice, and will consider whether changes are required when updating guidance or other relevant information.

Recommendation 8.12 Implementation of the National Principles

The Australian Government, together with state and territory governments, should review the National Statement of Principles Relating to Persons Unfit to Plead or Not Guilty by Reason of Cognitive or Mental Health Impairment (National Principles) through the Standing Council of Attorneys-General.

The National Principles should be revised to include the following:

• Indefinite detention is unacceptable and laws providing for it should be repealed.
• Where an order for detention is made, there should be a maximum term of detention nominated beyond which the person cannot be detained (a ‘limiting term’).
• The limiting term should not exceed the court’s assessment of the sentence it would have imposed on the defendant had the person been found guilty of the offence in an ordinary trial of criminal proceedings.
• In hearings conducted to determine a person’s fitness to stand trial or to plead, the court must consider whether it can modify the trial process or ensure assistance is provided to facilitate the defendant’s understanding and effective participation in the proceedings. This includes any cultural or other trauma-informed supports a First Nations defendant may need to ensure the defendant can participate in a fair trial and understand the proceedings.

The Standing Council of Attorneys-General should agree to a timetable for implementation of reforms identified in the review of the National Principles.

The Commonwealth, states and territories should amend their legislation on fitness to stand trial to align with the revised National Principles.

The Australian Government, and state and territory governments, should build their capacity to provide step-down options, including medium and low secure and community-based accommodation options, for the placement of people in the forensic system to facilitate their progressive transition to less restrictive environments.

Victorian Government response to recommendation 8.12

We will consider this recommendation further.

We support a review of the National Principles. However, we need to consider this recommendation further.

We need to do more analysis before we can determine our position. This will also depend on the scope and implications of the revised National Principles.

This recommendation has significant funding implications. There is no existing funding available to put it into practice.

Joint response to recommendation 8.12

Commonwealth, ACT, NSW, NT, Qld, Tas: Accept in principle

SA, Vic: Subject to further consideration

The Australian Government and state and territory governments have committed to review the National Principles, including aspects regarding indefinite detention and the availability of step-down accommodation. All governments recognise the rights of persons with cognitive or mental health impairment, noting these rights must be balanced against the need to prevent harm to others and uphold the rights of victims.

Recommendation 8.13 Data about people detained in forensic systems

The Australian Government and state and territory governments should support legislation requiring the annual collection and publication of data relating to people found unfit to plead or not guilty by reason of cognitive or mental health impairment. The data collected should include:

• the number of people under forensic orders in their jurisdiction
• the number of people under orders for detention and the numbers subject to:
  • indefinite periods of detention
  • limiting terms (or equivalent)
  • orders extending their order for detention
• the number of people under orders for detention by sex, disability, disability type and First Nations status
• the number of such people detained in:
  • an adult correctional facility
  • a youth detention facility
  • a forensic mental health or forensic disability facility
  • a general psychiatric unit.

Victorian Government response to recommendation 8.13

We accept this recommendation in principle.

However, we need to further consider the requirements and timeframes of any legislated change.

We would need to understand what this data is for, how it will be interpreted and what implications it may have for services.

It is likely we would need to boost the capability of service staff to collect disability-specific data. This has implications for funding and data quality.

We will also need to examine other Victorian legislation that guides the detention of people with disability so that we know what data we can publish.

Joint response to recommendation 8.13

Accept in principle

The Australian Government and state and territory governments support improving data collection relating to people found unfit to plead or not guilty by reason of cognitive or mental health impairment. Implementation is subject to relevant scoping work to assess existing frameworks and system capability, and personal privacy protections. This work will bolster the ability of governments to evaluate policy settings relating to people with cognitive or mental health impairments in the criminal justice system.

Recommendation 8.14 National practice guidelines for screening in custody

State and territory corrective services, youth justice agencies and justice health agencies, through the Corrective Services Administration Council and equivalent youth justice bodies, should develop national practice guidelines and policies relating to screening for disability and identification of support needs in custody. People with disability, including with lived experience of the criminal justice system, and people with expertise in cognitive disability should be involved in the design of the guidelines and contribute to the approaches to implementation. The guidelines and policies should:

• explain the essential elements of screening and assessment for people with disability, including a trauma-informed approach to identifying disability and the person’s needs
• reduce reliance upon self-disclosure as the primary means of disability identification following admission of a person with disability to custody
• require screening upon reception into custody or shortly thereafter both for prisoners and detainees who have been sentenced and for those on remand
• promote the consistent collection of data and its use to inform system-wide responses
• encourage the development and use of culturally safe disability screening tools that address the particular needs of First Nations people with disability
• encourage the development and use of disability screening tools that are culturally appropriate for people with disability from culturally and linguistically diverse communities
• encourage investment in initial and ongoing training, education and support of staff about disability identification and awareness
• encourage collaborative practices including the engagement of clinicians to conduct assessments to identify the support needs of a person with disability in custody
• require the identification of a disability or impairment to be matched with appropriate support while in custody
• promote the use of screening outcomes to develop plans for prisoners and detainees transitioning to the community
• contribute to appropriate information sharing among agencies including court-based assessments and reports.

Victorian Government response to recommendation 8.14

We accept this recommendation in principle.

We propose that the Corrective Services Administrators' Council should provide advice regarding this recommendation to the Corrective Services Ministers' Council, which meets annually.

Any national practice guidelines for screening in custody should consider that there is no overarching diagnostic screening tool for cognitive impairment.

To confirm a diagnosis, a comprehensive clinical assessment needs to be conducted. This needs to be done by a psychologist, neuropsychologist or medical professional. It is a costly process.

Currently, all adults entering custodial facilities in Victoria are screened for health and mental health concerns. Within 4 weeks, they must be asked if they have an NDIS plan to support release planning.

Under the Healthcare Services Quality Framework for Victorian Prisons 2023, health services in adult prisons must improve their workforce’s capability to meet the needs of priority groups in prison. This includes people with disabilities.

For adults, disability assessments can be arranged through Forensic Disability Services, the Multiple and Complex Needs Initiative and the Prison Disability Support Initiative. Forensicare provides an initial screening of all adults entering custody. This assesses some psychosocial and speech impairments, but it is not a disability screening.

For young people in custody, our response to recommendation 8.4 sets out the current arrangements for disability screening in youth justice settings.

We are implementing the Multi-Agency Risk Assessment and Management (MARAM) Framework which includes a tool and guidance for workers to screen for cognitive disability. This includes acquired brain injury indicators.

The MARAM Framework helps workers across the service system identify people who may be using family violence.

The responses to the screening questions are not definitive assessments. However, they may support the worker to adjust their communication approach and refer the person to another service.

Recommendation 8.15 Policies and practices on screening, identifying and diagnosing disability in custody

State and territory governments should ensure that policies and practices concerning screening, identification and diagnosis of disability in respect of people with disability in custody are consistent with the national practice guidelines.

Victorian Government response to recommendation 8.15

We accept this recommendation in principle.

We will need to review existing legislation, policy and practice principles to make sure they align with the National Practice Guidelines.

Corrections Victoria is developing a risk factor checklist for cognitive impairment. This will flag a suspected cognitive impairment. It will prompt referral for further diagnosis. It will also allow us to adapt services for people in custody with a suspected or confirmed cognitive impairment.

Corrections Victoria also delivers training for the corrections custodial workforce about:

• signs of cognitive impairment
• the definition of cognitive impairment
• guidance to support staff in working with this cohort.

To align our work with any national practice guidelines, we will likely need sustained and increased funding for prison-based disability supports and capability uplift for custodial staff.

Health service providers in adult public prisons must comply with the National Safety and Quality Health Service Standards and National Standards for Disability Services through the Healthcare Services Quality Framework for Victorian Prisons 2023.

Youth Justice conducts timely disability screening for young people in Youth Justice within specified timeframes. Youth Justice Specialist Disability Advisors maintain collaborative relationships with stakeholders to provide care for young people involved with Youth Justice. Stakeholders include community disability services, the Department of Families, Fairness and Housing and the National Disability Insurance Agency.

On admission to custody, all young people receive a general nursing assessment and mental health assessment (within 12 hours for Aboriginal children and young people, or within 24 hours for non-Aboriginal children and young people). They receive a comprehensive health assessment from a medical practitioner within 72 hours of arrival. This provides the basis of ongoing healthcare for the child or young person while they are in custody.

The Youth Justice Primary Health Quality Framework 2023 requires that the primary health providers respond to the needs of children and young people in custody with a disability. This includes cognitive impairment, mental illness, acquired brain injury, sensory, physical and neurodiverse disabilities.

Health providers are also expected to proactively plan and deliver integrated care to children and young people with a disability. This must be done in consultation with the child or young person and other stakeholders. In addition, health providers must establish and maintain links with Youth Justice Disability Services and custodial staff. This ensures continuity of services and referral to the NDIS as appropriate.

If these assessments identify any special needs, including in relation to disability, Youth Justice and the primary health service will engage with the appropriate team or service provider for follow-up.

Recommendation 8.16 Support by First Nations organisations to people in custody

State and territory corrective service and youth justice agencies and justice health agencies should engage First Nations organisations, including Aboriginal Community Controlled Health Organisations, to provide culturally safe disability screening and assessment services for First Nations prisoners and detainees.

Victorian Government response to recommendation 8.16

We accept this recommendation in principle.

We are partnering with Victorian Aboriginal Community Controlled Health Organisation to design and develop Aboriginal-led models of primary health care.

As part of this work, we will consider ways for Aboriginal Community-Controlled Health Organisations to provide disability screening and assessment services in custody.

In the interim, primary health service providers in adult public prisons must record any needs relating to preidentified disability or cognitive impairment. This is a requirement in the Healthcare Services Quality Framework for Victorian Prisons 2023.

Health service providers in youth justice custodial settings must have procedures in place to identify disability. They must clearly record disability status in the health records.

All health providers in adult and youth custodial settings must provide culturally safe services. We encourage them to engage and partner with Aboriginal Community-Controlled Health Organisations to do so.

Aboriginal and Torres Strait Islander people in adult public prisons are offered an Aboriginal Health Check within 10 days of entering custody. This check is undertaken by an Aboriginal Health Practitioner, an Aboriginal Health Worker or supported by an Aboriginal Health Liaison Officer. It is a chance to identify disability in a culturally safe way.

For all young people, we conduct cognitive disability screens within 14 days of the commencement of a custodial or community order.

We acknowledge the overrepresentation of First Nations young people with disability in youth justice.

We will work alongside the Aboriginal Principal Practitioner to explore appropriate, culturally safe disability screening and assessment services.

We will also apply a disability lens when we review the current training package for supporting Aboriginal young people and children in youth justice.

Recommendation 8.17 NDIS Applied Principles and Tables of Support concerning the justice system

Through the Disability Reform Ministerial Council, the Australian Government and state and territory governments should:

• review the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) and the Applied Principles and Tables of Support (APTOS) and operational guidelines to align and provide clear parameters in determining which supports will be funded by the National Disability Insurance Scheme (NDIS) for participants involved in the criminal justice system
• resolve issues related to the interface between the NDIS and the criminal justice system, particularly the distinction between ‘criminogenic-related supports’ and ‘disability-related supports’
• where such issues cannot be resolved, agree on a mechanism for joint-funding of individual supports.

Proposed amendments to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) and the APTOS should be agreed by National Cabinet.

Victorian Government response to recommendation 8.17

We will consider this recommendation further.

We support clarifying roles and responsibilities at the interface between NDIS and justice services. We need to consider this recommendation together with related recommendations by the NDIS Review.

Joint response to recommendation 8.17

Subject to further consideration

The Australian Government and state and territory governments are committed to working together to clarify roles and responsibilities at the interface between the NDIS and justice services.

This recommendation requires consideration alongside relevant recommendations of the NDIS Review related to roles and responsibilities within the disability ecosystem.

Work over the past 5 years at the justice/NDIS interface has included the introduction of Justice Liaison Officers; increasing awareness of the roles and responsibilities of the NDIS and justice systems; implementing formal information sharing arrangements; and strengthening relationships between the NDIS and Aboriginal and Torres Strait Islander justice settings.

Recommendation 8.18 Timing of NDIA-funded transition supports

The National Disability Insurance Agency (NDIA) should issue guidelines stating expressly that a release date is not a precondition for approving funding for transitional supports for participants in custody. The NDIA’s Justice Operational Guidelines and internal practice guides should be amended to make this clear.

Victorian Government response to recommendation 8.18

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 8.19 Amendment of the Disability Discrimination Act 1992 (Cth) to cover police provision of ‘services’

The Disability Discrimination Act 1992 (Cth) should be amended to expressly include ‘services provided by police officers in the course of performing policing duties and powers’ in the definition of ‘services’ in section 4.

Victorian Government response to recommendation 8.19

We note this recommendation.

This recommendation is not within our area of responsibility.

Recommendation 8.20 Improving police responses to people with disability

The Australian Government and state and territory governments and police services should collaborate with people with disability in the co-design, implementation and evaluation of strategies to improve police responses to people with disability.

All police services should introduce adequate numbers of dedicated disability liaison officers.

The Australian Government and state and territory governments should introduce an alternative reporting pathway for people with disability to report crimes to police.

Victorian Government response to recommendation 8.20

We accept this recommendation in principle.

Inclusive Victoria: state disability plan 2022–2026 commits all Victorian Government departments and agencies, including Victoria Police, to increase collaboration and co-design with people with disability.

Victoria Police will build on its existing networks with the disability community to provide opportunities for genuine co-design. This includes developing accessible police and community-facing information, as well as training for police members, subject to funding.

Victoria Police is leading the way nationally in terms of its commitment to establishing Disability Liaison Officers as part of its Victoria Police Accessibility Action Plan 2021–2023. This included consulting with the disability community via the Disability Portfolio Reference Group.

The first group of 68 Disability Liaison Officers commenced their role on 12 April 2024.

There are Disability Liaison Officers across the state in every Police Service Area, as well as a number in Transit and Public Safety Command and specialist units.

Joint response to recommendation 8.20

Accept in principle

The Australian Government and state and territory governments are committed to improving police responses to people with disability and recognise the essential role of law enforcement in promoting and maintaining fundamental human rights.

All governments are committed to ensuring that police services are adequately equipped to engage with people with disability according to their needs. This can be achieved in multiple ways, including through the introduction of disability liaison officers or broader workforce capability uplift noting implementation must have regard to the unique needs and circumstances of each jurisdiction.

All governments acknowledge the benefits of working with people with disability to design, implement and evaluate strategies to improve police responses to people with disability in respective jurisdictions.

Recommendation 8.21 Diversion of people with cognitive disability from criminal proceedings

The New South Wales, South Australian, Victorian and Western Australian governments should review and fund their existing court-based diversion programs for people with cognitive disability charged with offences that can be heard in local or magistrates’ courts to ensure the programs:

• are accessible and culturally appropriate, particularly in regional and remote areas
• provide support for defendants to access the National Disability Insurance Scheme (NDIS)
• satisfy service needs, including connecting defendants to appropriate education, housing, employment and other services.

The Australian Capital Territory, Northern Territory, Queensland and Tasmanian governments should develop and fund court-based diversion programs for people with disability charged with summary offences in local or magistrates’ courts which:

• are accessible and culturally appropriate, particularly in regional and remote areas
• provide support for defendants to access the NDIS
• satisfy service needs, including connecting defendants to appropriate education, housing, employment and other services.

All states and territories should commission independent evaluations of their diversion programs. Any evaluation should assess and, where feasible, quantify economic and social benefits for both individual defendants and the community as a whole.

Victorian Government response to recommendation 8.21

We will consider this recommendation further.

We will consult with Victorian courts. This includes determining any future funding needed to implement the recommendation.

Recommendation 8.22 Age of criminal responsibility

States and territories that have not already done so should introduce legislation to raise the minimum age of criminal responsibility to 14.

Victorian Government response to recommendation 8.22

We accept this recommendation in part.

We will raise the minimum age of criminal responsibility in 2 stages.

Initially, we will raise it from 10 to 12 without exceptions. Then we will raise it to 14 with exceptions for serious crimes by 2027. This will be subject to the design and implementation of an alternative service model.

We will introduce legislation this year raising the age to 12 without exception as part of the first stage of this commitment.

We recognise the evidence. We understand the community wants us to respond to the unique developmental stage of children aged 10–13.

We will adopt a measured approach that puts these reforms into practice safely, effectively and sustainably.

Before we raise the age to 14, we need to make sure we have a robust service system in place. This is because we need to respond to the change in the profile of youth offending as children get older.

Recommendation 8.23 Action plan to end violence against women and children with disability

The Australian Government and state and territory governments should develop a five-year Action Plan for Women and Children with Disability to accompany the National Plan to End Violence against Women and Children 2022–2032. The Action Plan should:

• be developed by and for women with disability
• prioritise cohorts at greatest risk of violence
• coordinate with other relevant plans and strategies, in particular the forthcoming Aboriginal and Torres Strait Islander Action Plan and Australia’s Disability Strategy 2021–2031.

The Action Plan should include comprehensive actions and investment to address violence experienced by women and children with disability across the focus areas of:

• prevention
• early intervention
• response
• recovery and healing.

Victorian Government response to recommendation 8.23

We accept this recommendation in principle.

We will work with other jurisdictions, targeted services and people with disabilities with lived experience of family or sexual violence. Together, we will develop an effective mechanism to prevent gendered violence. This will ensure that victim survivors with disabilities are protected and supported to recover from family and sexual violence.

1. We are in a strong position to further national efforts to improve access to co-designed, safe and inclusive interventions. Victoria’s family violence reforms prioritised lived experience. We have a strong history of disability advocacy in Victoria.
2. We need to consider how to support interventions across the spectrum from prevention to recovery and system change.
3. We will work with Commonwealth and other states and territories under the National Plan to develop recommendations. This will improve safety and support for women and children with disabilities who are at risk of family and sexual violence. It will also further our prevention efforts.

Joint response to recommendation 8.23

Accept in principle

Through the National Plan to End Violence against Women and Children 2022–2032 (National Plan), all governments agreed that the findings of the Disability Royal Commission would guide future work to end violence against women and girls with disability.

The Australian Government and state and territory governments are committed to ending violence against women and girls with disability and acknowledge more needs to be done to address the disproportionate rates of violence experienced, through responding to the drivers of violence and recognising the specific experiences of women with disability across the National Plan’s 4 domains of prevention, early intervention, response and recovery, and healing. The National Plan promotes actions across the domains that respond to the diversity of women and children, to ensure access to systems and services are accessible to individual needs.

On 16 August 2023, the Australian Government released the First Action Plan 2023–2027 (Action Plan) to drive delivery of the shared commitment under the National Plan to end gender-based violence in a generation.

Development of the Action Plan drew on the extensive consultation undertaken with diverse stakeholder groups to inform the National Plan. These consultations listened to the diverse lived experiences of people from regional and remote areas, First Nations people, culturally and linguistically diverse communities, LGBTIQA+ people, people with disability, young people and older people.

The First Action Plan is the first 5-year action plan to drive the work needed to meet the objectives of the National Plan.

Rather than developing a new action plan targeted at women and children with disability, all governments are committed to applying a disability lens to the implementation of the 10 actions within the existing action plan, including ensuring that policy, program and service reform and change is responsive to the needs of women and girls with disability and that associated communication material and resources are accessible.

Recommendation 8.24 Disability-inclusive definition of family and domestic violence

In working towards nationally consistent, inclusive definitions of gender-based violence under the National Plan to End Violence against Women and Children 2022–2032, states and territories should amend their legislative definitions of family and domestic violence to include:

• all relationships in which people with disability experience family and domestic violence, including but not limited to carer and support worker relationships
• disability-based violence and abuse
• all domestic settings, including but not limited to supported accommodation such as group homes, respite centres and boarding houses.

The Family Law Act 1975 (Cth) and any relevant state and territory laws should also be amended consistently with this recommendation.

Victorian Government response to recommendation 8.24

We accept this recommendation in principle.

We support greater national consistency in definitions of family and sexual violence.

We will continue to work with other jurisdictions under the National Plan to End Violence Against Women and Children 2022–2032 to undertake this work.

We will undertake detailed analysis to find out what, if any, legislative or policy change we need to make. We will then consider what practical benefit national consistency would have for people with disability.

Our view is that efforts to achieve legislative consistency should not come at the expense of practical measures that deliver more meaningful outcomes.

Joint response to recommendation 8.24

Commonwealth, Vic: Accept in principle

ACT, NSW, NT, Qld, SA, Tas, WA: Subject to further consideration

The Australian Government and state and territory governments recognise the importance of ensuring that definitions of family and domestic violence are appropriately broad to capture the unique circumstances, relationships, and living arrangements in which people with disability may experience family and domestic violence.

Through the Family, Domestic and Sexual Violence Working Group, under the Standing Council of Attorneys-General, all jurisdictions are committed to working together to improve the family law and family violence systems’ response to family violence, which may include future consideration of disability-inclusive definitions.

While the governments of ACT, NSW, NT, Qld, SA, Tas and WA are supportive of disability-inclusive definitions of family and domestic violence, there are a range of challenges with progressing a nationally consistent definition. Jurisdictions are committed to working through these in the context of the work being progressed through the Family, Domestic and Sexual Violence Working Group.