Indigenous Australians, Intellectual Disability and Incarceration: A Confluence of Rights Violations

Abstract

This article reviews the health and wellbeing of Aboriginal and Torres Strait Islander Australians with intellectual disability in the Australian prison system through a human rights lens. There is an information gap on this group of Australian prisoners in the health and disability literature and the multi-disciplinary criminal law and human rights law literature. This article will consider the context of Indigenous imprisonment in Australia and examine the status of prisoner health in that country, as well as the status of the health and wellbeing of prisoners with intellectual disability. It will then specifically explore the health, wellbeing and impact of imprisonment on Indigenous Australians with intellectual disability, and highlight how intersectional rights deficits (including health and human rights deficits) causally impact the ability of Indigenous Australians with intellectual disability to access due process, equal recognition and justice in the criminal justice and prison system. A central barrier to improving intersectional and discriminatory landscapes relating to health, human rights and justice for Indigenous Australian inmates with intellectual disability, and prisoners with intellectual disability more broadly in the Australian context, is the lack of sufficient governance and accountability mechanisms (including Indigenous-led mechanisms) to enforce the operationalisation of consistent, transparent, culturally responsive, rights-based remedies.

Persons with intellectual disability in prison

“…This phenomenon is not solely an American problem ( Cockram et al , 1998 ). , with similar values being reported in Spain (Tort et al , 2016), Wales (Hayes and McIlwain, 1988), England (Hayes et al , 2007; Murphy et al , 2017), Ireland (Gulati et al , 2018), Norway (Sondenaa et al , 2005) and Australia (Brolan and Hurley, 2018). If one accepts the midpoint prevalence estimate of 7%, this would suggest that the number of individuals with intellectual disability currently in prisons and jails exceeds expectations by about 700%!…”