Cathy van Extel: Hello, I'm Cathy van Extel and welcome to Background Briefing.

We Australians love our sporting champions. Especially when they shine on the international stage. In recent years, that pride has extended to our athletes with disabilities performing at the Special Olympics.

Special Olympics Promo: People look at you. They stare. People stare. They point at you. They shout things. They make you feel different. It's fantastic. (CROWD ROARS)

Cathy van Extel: Fifty years ago, people with an intellectual disability only had a backyard summer camp, now they've got the glittering event of the Special Olympics.

That man loves the attention he gets as an athlete, but many other intellectually disabled people are getting attention for all the wrong reasons.

Kevin Cocks: 70% of homeless people either have an intellectual disability or mental illness. They're very visible and come to the attention of police. They may look like they're threatening, or could be a threat to the general public, so police are often then just doing their job, that is, protecting all society from any threats. So it quickly slips into a slippery road of people ending up in the criminal justice system.

Cathy van Extel: Queensland's Anti Discrimination Commissioner, Kevin Cocks says they get there because they haven't had the right kind of support. People with a low IQ who have trouble with day-to-day things make up the biggest disability group in Australia - there are half a million intellectually disabled people.

Not only does it come with a huge personal cost to the person and their families; for society to care for them properly would cost billions.

Now a new idea has been floated, a kind of no-fault insurance, so that anyone who is incapable of living an independent life, gets proper care. It's called the National Disability Insurance Scheme, and the Productivity Commission recently gave its backing to the idea.

Kevin Cocks believes it offers a solution to the ever-spiralling cost of intellectually disabled people in the criminal justice system.

Kevin Cocks: That potentially offers the most significant reforms in Australian clinical history since the introduction of Medibank in 1975. So that we're ensuring that there is entitlement for people with disabilities.

Cathy van Extel: Australia's current annual spend on criminal justice is $11-billion and rising. Intellectual disability accounts for a sizeable chunk of the criminal justice bill.

There are no official figures but it's estimated up to 30% of people in trouble with the law have an intellectual impairment.

Intellectually disabled people are being jailed, some for trivial offences, while others are being held indefinitely in unsuitable places, like mental hospitals.

People like 41-year-old Melisa Avery, from Toowoomba in southern Queensland, who has an IQ of just 57, which puts her in the bottom 1% of the population.

Melisa's at the centre of a landmark court judgment about the treatment of intellectually disabled people who commit minor crimes. You'll hear more about that later. She's had a string of shoplifting convictions because she doesn't fully understand the world around her.

Despite this, Melisa still faces jail, perhaps to be placed with some of Queensland's most high-risk criminals who would be dangerous to her.

That's your Dad, is it?

Melisa Avery: Yes.

Cathy van Extel: OK, is that your Mum and Dad's place?

Melisa Avery: Yes, yes.

Cathy van Extel: It looks like it was a celebration, was it?

Melisa Avery: My Pop's 90.

Cathy van Extel: Ninetieth birthday? How long ago was that?

Melisa Avery: 2008.

Cathy van Extel: Right.

Melisa Avery: He's 90 and he's old.

Cathy van Extel: Melisa's parents live on the bayside Redcliffe peninsular, just north of Brisbane. John and Collein Avery are retired schoolteachers living on one of the lifestyle canals in the family home.

CAR DOOR CLOSES/GREETINGS

Cathy van Extel: From every early childhood their daughter Melisa Avery has been diagnosed with a significant intellectual impairment. Her mother, Collein says it was obvious by the time she was 2and a half and having trouble communicating.

Collein Avery: No-one really knows what caused the intellectual disability. Her brain scans have been perfectly normal.

Cathy van Extel: She's obviously chosen to live an independent life; how difficult is that for you?

Collein Avery: Well it is extremely difficult. You must respect the fact that she is so determined and she strives to and she's so determined to live independently in the community, but unfortunately she doesn't have the skills.

Cathy van Extel: John and Collein Avery are Melissa's legal guardians because she can't make important decisions. The Averys are at their wit's end and fearful of their daughter's future.

John Avery: I'm very worried that somewhere along the line, one of the courts is going to make a decision that Melisa needs to be restrained in some way and there's only two alternatives at the moment, and one is prison, which is entirely unsuitable. We'll come out with a hardened criminal on our hands. The other one is a forensic order, which could be as simple as telling her she's not to leave the house without supervision. She'll immediately say, 'Well nobody's going to tell me what to do', and breach it. The next step would be that she would be apprehended in a mental health institution which is entirely inappropriate again.

Collein Avery: We'd like to make it perfectly clear that we certainly don't condone our daughter's behaviour, and in fact we're considerably troubled by it. She definitely needs some help, but that hasn't been forthcoming from any of the appearances in any of the courts that she's been to. The consequences that have been handed down have certainly not been conducive to a person with an intellectual disability. Melisa's had fines, she's been on probation, she's had to pay restitution. She has twice spent about four hours in the watch house. She's had to do community service, but none of these have rehabilitated her in any way.

Ani DiFranco song:

Let's see, I was four years old

They tried to test my I.Q.

They showed me this picture of 3 oranges and a pear

They asked me, Which one's different?

It does not belong

They taught me different is wrong.

Cathy van Extel: An intellectual disability affects many aspects of a person's day-to-day life. They usually have trouble communicating, find it hard to remember things, have trouble understanding social rules, and cause and effect for everyday events. They struggle to solve problems or think logically, and they behave in ways that aren't appropriate for their age.

Forensic psychologist and the Head of Behavioural Sciences in Medicine at the University of Sydney, Professor Susan Hayes.

Susan Hayes: We're talking about significantly below-average cognitive ability. That's things such as memory, reasoning, verbal reasoning, non-verbal reasoning, and it's also associated with significant deficits in adaptive behaviour which includes such things as day-to-day communication, daily living skills. So it's significantly below average functioning in both of those important areas, it's not just IQ. And the rule of thumb is that significantly below average means basically an IQ score of below 70.

Cathy van Extel: Queensland's Anti-discrimination Commissioner believes today's attitudes to intellectual disability can be traced back to Australia's colonial days and beyond.

Kevin Cocks.

Kevin Cocks: In the 1860s there was a strong push to link intellectual disability with being criminal. It was called a susceptibility theory. And so if you had an intellectual disability you would more likely be a criminal. That was based in the eugenics movement and that lasted until post World War II, and I still think it's evident in some sectors of society. So therefore when you are portrayed as being a menace or a threat to society that flows on to your everyday interaction.

Cathy van Extel: The consequence of this, says Kevin Cocks, is disproportionately large numbers of people with an intellectual disability in the criminal justice system. For people like Ellis: Melisa Avery, whose disability is so severe they can't be tried in a court, the risk is indefinite detention.

There was national outrage last month over the case of West Australian man, Marlon Noble, who's been in jail for ten years without being convicted.

Perth Newsreader: Western Australia's Attorney-General is under pressure to explain why a 29-year-old man has been in prison for ten years without being convicted of a crime. Marlon Noble was 19 when he was jailed in 2001 after being accused ...

Cathy van Extel: Cases like this are complex. The person is deemed to be a risk to the community because of what they're alleged to have done - things like physical violence, sexual offences and arson.

Their low IQ means they can't stand trial, so the system errs on the side of public safety and locks them up.

Marlon Noble has already served a longer sentenced than if he'd been convicted of his alleged crime.

It's a similar story in Queensland, although rather than jail, people are locked up in mental hospitals under what's called a forensic order. To get an order they must have been charged with a serious crime, and then found unfit to stand trial.

CITY CLOCK CHIME

Cathy van Extel: In Brisbane's CBD, in the Magistrate's Court complex, adult guardian, Dianne Prendergast, has legal responsibility for about 2,000 Queenslanders with impaired capacity.

Dianne Prendergast: Overwhelmingly, we're appointed for people who have intellectual disability. That statistic is quite different to any other State in Australia. Whereas in for example, Victoria, most of the appointments to what is the Public Advocate in Victoria, are for people who are aged 60 years and older with dementia. In Queensland the vast majority of appointments are for people with intellectual disability, and that, I think, says something about some of the issues that are faced by people with intellectual disability in Queensland.

Cathy van Extel: Dianne Prendergast is a lawyer, and all too familiar with the impact of forensic orders on intellectually disabled people.

Dianne Prendergast: We have circumstances where if clients had actually pleaded guilty to an offence, they would be imprisoned for 18 months and they'd be back in the community. For exactly the same offence, we've got clients who are still contained and secluded 24 hours a day 7 days a week in facilities 5 years later, and there has been absolutely no change in their behaviour.

Cathy van Extel: As well as keeping people in isolation, drugs, including psychotropic drugs for mental illness, are used on intellectually disabled people in Queensland's psychiatric hospitals. These restrictive practices were strongly criticised five years ago in a major report by retired Supreme Court Judge, Bill Carter.

Since then, a new law has brought about improvements, particularly for the use of so-called chemical straitjackets and isolation.

CAR SATNAV

Cathy van Extel: I'm at Wacol, standing outside the newly-built 10-bed facility for intellectually disabled people who are on a forensic order. There are several single-storey brick buildings with peaked roofs that wouldn't look too out of place in the suburbs, with their manicured green lawns, except for the stark absence of gardens or trees. And instead of double lock-up garages, there's a double four-metre high security fence enclosing the complex.

The new building on Brisbane's western fringe is due to open within a couple of months. It's part of the Wacol prison precinct that includes the maximum security Brisbane men's and women's jails, the men's remand centre, the Youth Detention Centre, and a high security mental hospital.

Now there's a new facility, specifically for intellectually disabled people. The new 10-bed facility's been widely welcomed by disability advocates, but there's concern that it's not big enough to meet the demand in south-east Queensland.

Retired Supreme Court Judge, Bill Carter says it's merely a starting point.

Bill Carter: Look at the geography of Queensland. Intellectual disability isn't confined to those who live in the south-east corner. If the mindset is that we can tick that off, that has now been done, then that will involve a serious failure in the system.

Cathy van Extel: At the moment there are 16 intellectually disabled people in Queensland in mental hospitals on a forensic order. Many have been held for years, the longest is nearly 15 years. There are plans to move nine of them into the new centre when it opens.

Bill Carter is worried that disability bureaucrats may decide to make it - unofficially - a male-only facility because of security concerns for women.

Bill Carter: I mean I know of one particular female who has seriously disturbed behaviours and who would be a very fit subject for accommodating in that facility and receiving the appropriate treatment, and support. But because she's a female and there are nine other males, there may be a concern that involves risk. Maybe it does, but risks are there to be managed.

Cathy van Extel: The Queensland government has just brought in new legislation to support the move to take intellectually disabled people out of mental hospitals.

Overseeing their care until now has been the Director of Mental Health, Dr Aaron Groves. Speaking on the phone, he explains how the move will make it easier for people to return to life in the community.

Aaron Groves: The new facility is much more like a home, the number of people in each home-like unit is much lower. They're not going to have people who may have active and acute mental illness close by. The nature of the training of the staff is very much around rehabilitation, about assisting them with the types of problem behaviours that might have got them into contact with the criminal justice system in the first place.

Cathy van Extel: And what if demand outstrips the number of available beds in the new facility?

Aaron Groves.

Aaron Groves: Of course, if that doesn't happen and there are people needing to be on an order but there's not a bed available within the facility, the mental health services will still be available to provide care as they currently do.

Cathy van Extel: The 16 intellectually disabled people currently being held in Queensland's mental hospitals are the tip of the iceberg. The vast majority of intellectually disabled people, and we're talking thousands, are getting into trouble for minor offences. That means they'll have their cases decided by a magistrate. Adult guardian, Dianne Prendergast.

Dianne Prendergast: The sort of offences that we're dealing with are urinating in public, swearing in public, consuming alcohol in public, perhaps it might be shoplifting.

Cathy van Extel: The trouble is, even a misdemeanour can land you in jail.

Dianne Prendergast explains how it can happen.

Dianne Prendergast: And so we've had cases where we've had adults in this office who've got a criminal history of up to 27 pages. Who ultimately, when that matter goes before a magistrate on a relatively minor street offence, will say 'What am I going to do?' there is no answer. You can't behave like this in our community, and that person will be incarcerated. We've had a client in this office who has been imprisoned for up to six months for urinating in public.

Cathy van Extel: Intellectually disabled people are more likely to receive a sentence due to a lack of other options.

They're also more likely to be locked up in the police watch house after being charged, anything from a few hours to a few days.

That's because their behaviour may be considered risky by police; all it takes is a belief that they won't turn up to court. And there's a good chance they'll be right about that risk, for a person with a very low IQ like Melisa Avery, getting to court on the right day and at the right time is impossible without help.

Forty-one-year-old Melisa has been twice locked up in the Toowoomba watch house and her parents are appalled that it was allowed to happen. John and Collein Avery.

Collein Avery: She's had two lots of four hours in the watch house.

John Avery: They had to move her very quickly into a padded cell because she self-harms very quickly.

Cathy van Extel: Melisa has also been threatened with jail a number of times by a Toowoomba magistrate, most recently in February this year when she was once again appearing on shoplifting related charges. Her parents say jail frightens Melisa but she doesn't really understand what it means so the threats have no real deterrence value.

Where threats don't work, guidance about the right way to behave can make a difference. Melisa recently enjoyed a pampering session at home, using beauty products she'd bought with a gift card from her parents. Her carer, Janine Smith showed her how to use them.

HAIRDRYER AND EXPLANATIONS

Cathy van Extel: Melisa, you had to go to court a few times now, can you tell me a little bit about how you feel when you go in front of a court?

Melisa Avery: Nervous, very nervous.

Cathy van Extel: Why do you feel nervous? Is it a frightening experience for you?

Melisa Avery: Yes, yes.

Cathy van Extel: Do you understand why you're going to the court?

Melisa Avery: Sometimes I don't know.

Cathy van Extel: And so when you are there, how do you feel about the magistrate who's deciding what should happen. What sort of things has he said to you?

Melisa Avery: Keep out of jail and ..

Cathy van Extel: When the magistrate says to you that if he sees you again that you'll have to go to jail, do you know what that means?

Melisa Avery: No. No.

Cathy van Extel: Has anybody ever told you about what jail is?

Melisa Avery: It's a big lock-up, yes.

Cathy van Extel: Melisa's parents, John and Collein Avery, are keen to tell their family story. They don't want Melisa's disability ruining her chance of a happy life.

The family likes to travel. In the past John and Collein have taken their daughter to New Zealand and Singapore, and in her childhood they went to Disneyland. With a criminal record, Melisa wouldn't be allowed to visit some countries, especially the United States.

TRAIN DEPARTS FROM ROMA STATION

Cathy van Extel: Any journey through the criminal justice system begins with the police. The headquarters of the Queensland Police Service is just opposite the Brisbane transit centre in the CBD,

Just how equipped are police to deal with issues of intellectual disability?

Superintendent Scott Trappert is with the Policing Advancement Branch. He concedes there's no specific training about intellectual disability.

Scott Trappert: It's certainly the case that our 10,000 police officers are not trained medical practitioners sort of thing, and while people with special needs do present those special challenges to us, we are always placed in an unfortunate position as to trying how to identify these people, particularly with a lot of our situation overlays of alcohol and drugs.

Cathy van Extel: Under the law, police aren't allowed to interview a person with an intellectual disability without someone else present. Police say disability is often difficult to pick up.

Adult Guardian, Dianne Prendergast agrees, but she says it means they're more adversely treated because of their disability.

Dianne Prendergast: The group that we're talking about don't have a natural peer group and are often intimidated by authority. So often they will not understand the questions that they're asked, they will acquiesce or agree with propositions that are put with them, or because they want to be liked, they will try and anticipate what the police want to hear and they will give them the answer that they want to hear. It's not to say that the police are doing the wrong thing, but the power imbalance and the vulnerability of this group is so great, that often by the end of the interview they've admitted to things that they may or may not have done.

Cathy van Extel: That means they're more likely to be convicted and punished by the court.

If a person doesn't have help then they might struggle to pay the fine, do the community service, or meet other conditions imposed by the court.

If they don't, then they'll be charged with a whole set of new offences, and it turns into a vicious circle.

Even if the person does what the court has asked of them, they still might not understand what it's all been about, so they'll probably reoffend.

That's what's been happening with Melisa Avery.

Former Supreme Court Judge, Bill Carter, says intellectually disabled people in Queensland are being treated unlawfully by the criminal justice system.

Bill Carter: Particularly those who become or who are seen to be serial offenders, they go before the magistrate, the magistrate says, 'Well look, you've been here too many times. If you come back here again, you're going to prison.' And that happens. And that is absolutely, absolutely and utterly and totally unacceptable.

Cathy van Extel: Would you say that in Queensland then, people are being incarcerated without a legal basis?

Bill Carter: Oh, without a doubt. Without a doubt. Absolutely without a doubt.

Cathy van Extel: It's her love of shopping that's been getting Melisa Avery into trouble with the law.

Melisa Avery: Do you want a cuppa? We've got plenty of milk.

Support worker: Melisa, how about you tell Catherine what you do on a Wednesday?

Melisa Avery: I go to Meals on Wheels.

Cathy van Extel: You're a volunteer, are you?

Melisa Avery: Yes.

Cathy van Extel: Do you have a certain part of Toowoomba that you look after?

Melisa Avery: Well the lady gets the books and she, does it for me and I do around the meals.

Support worker: So you put the eskies in the car, don't you?

Melisa Avery: Yes.

Support worker: then go and deliver them.

Support worker: And then where do you go after meals on wheels?

Melisa Avery: Go do my shopping, and yes.

Support worker: And you have lunch?

Melisa Avery: Yes.

Cathy van Extel: Melisa lives independently in a unit in Toowoomba with daily support from carers like Janine Smith.

Ten years ago Melisa started shoplifting, mostly pretty greeting cards that catch her fancy, but she also steals groceries. It's part of a compulsive disorder that's been linked to her intellectual disability.

Melisa's parents have been by her side for all her many court appearances over the past decade.

Collein Avery recalls the first time the family attended the Toowoomba Magistrate's Court.

Collein Avery: For us as a family it was very traumatic. Neither John nor I had ever been in a court before. We were very naïve, we were very uninformed. We didn't know how to navigate the court system. For Melisa on the day that she had to go to court, she was very anxious, very stressed. But absolutely no understanding. None whatsoever.

Cathy van Extel: In that first court appearance Melisa's parents pleaded guilty on their daughter's behalf to one count of unauthorised dealing in shop goods. This was followed by another four court appearances on 14 shoplifting-related charges, and each time they pleaded guilty on her behalf.

Collein Avery: Both her father and myself were of the opinion at the time that you did the crime, you suffered the consequences. Neither of us was informed of the Mental Health Act of 2000 which gives you an avenue to pursue a different path through the courts. And it was in fact in 2005 that a young barrister happened to just ask us one day would we mind if he came in on the interview with the duty lawyer. And that barrister was Dan Toombs and from that moment our life changed.

Dan Toombs: Thanks for joining us on this very first edition of law buddy TV, the fortnightly legal information channel dedicated to providing you with the best information for the best Australian lawyers on your legal issue.

My name is Dan Toombs and I've got to tell you that the whole motivation behind this show, and our law-buddy TV website is to provide you with information ...

Cathy van Extel: Dan Toombs is a livewire Toowoomba barrister. He's recently launched an online legal TV channel. He's about to publish a legal handbook on intellectual disability, and is the founder of Australia's first criminal law service for people with mental or intellectual impairment.

It's called the Disability Law Project and is run through the Queensland Criminal Justice Centre.

It was exposure to Melisa's case that steered his legal career in a new and unexpected direction - as an advocate for people with mental and intellectual impairments. Dan Toombs.

Dan Toombs: Melisa has been a pawn to the system insofar as because the system, the way it is, has kept her in suspense for a long period of time. She's been subjected to times in custody, you know, it was once devised by an agency and the Queensland Police Service that it might be a good idea to teach her a lesson by locking her up for four hours in the watch house, which was completely draconian and archaic. So she's been subjected to a lot during the course of having these matters dealt with.

Cathy van Extel: Dan Toombs and Melisa's parents decided to have her 15 previous convictions quashed. John and Collein Avery again.

John Avery: We'd firmly come to the opinion that what Melisa had been through in the court, particularly in the magistrate's court, was particularly unjust, where she had, mainly due to the ignorance of her mother and I that we'd allowed her to be plead as guilty.

Collein Avery: She'd been twice threatened with detention so we started to really feel that not only Melisa had been unjustly dealt with, but other people similar to Melisa also had experienced the same sort of situation.

Cathy van Extel: The matter was initially referred to the Queensland Governor, who has the power to pardon convictions. She referred it to the Attorney-General, who referred it to the Court of Appeal.

In November last year that Court found Melisa Avery to be permanently unfit to stand trial, but it went further than expunging her criminal record.

Here is a reading of the edited comments in the judgment by the Court of Appeal President, Margaret McMurdo.

Reader: It seems unsatisfactory that the laws of this State make no provision for the determination of the question of fitness to plead to summary offences. It is well documented that mental illness is a common and growing problem amongst those charged with criminal offences.

Cathy van Extel: Justice Margaret McMurdo went on to suggest law reform is needed to ensure that people charged with minor crimes have the intellectual capacity to plead guilty.

Reader: The Magistrate's Court has attempted to meet this problem through its Special Circumstances Court Diversion Program ... But it does not and cannot provide a satisfactory legal solution where people charged with summary offences under the criminal justice system are unfit to plead to those charges. The legislature may wish to consider whether law reform is needed to correct this hiatus in the existing criminal justice system.

Cathy van Extel: For Melisa's parents, the decision to wipe clean Melisa's criminal history is a victory, but everyone's frustrated with the muted government response to the call for law reform, including Dan Toombs.

Dan Toombs: It certainly sends a very loud signal to the Queensland government and policy advisers similarly, that the system as it is at this point in time, is completely deficient and predisposes people with disabilities to substantial injustice.

Cathy van Extel: What has been the effect of the judgment in practical terms?

Dan Toombs: What the decision has done has made lawyers very sensitive to this issue of fitness for trial, but the problem still remains that you can be as sensitive to the issue as you like, but if it's a summary offence you can't get it to the Mental Health Court, or you can't get funding for a psychiatrist's report, then the fact still remains that you are in a very awkward position and the system is encouraging a certain outcome that would certainly ethically compromise a lawyer.

Cathy van Extel: Professor Susan Hayes from the University of Sydney, says pleading guilty is often seen as the kindest or most expedient way to handle the matter, but it's risky.

Susan Hayes: Oh certainly, and it's not just solicitors who are saying that, it's the family as well. The families are very often of the mind that 'Let's just plead guilty, let's get it over with, let's not put our family member through this kind of anxiety and through the court process which they're not understanding', and of course everybody hopes that therefore the person will receive a non-custodial sentence. But it doesn't always end like that and often a plea of guilty can end up with the person getting a custodial sentence and spending some time in custody much to their detriment.

Cathy van Extel: An insider's understanding of the criminal justice system was presented by the ABC's Damien Carrick on Radio National's Law Report two years ago when he spoke to lawyer Debbie Kilroy.

Damien Carrick: Queenslander Debbie Kilroy is a long-time prison activist She has first-hand knowledge of prison life. She served a lengthy sentence for drug trafficking. On her release she became heavily involved with Sisters Inside, an organisation that campaigns for prison reform. But Debbie Kilroy now also wears another hat. Two years ago she qualified as a lawyer. And many of her cases focus on the rights of prisoners, and issues around transparency.

Cathy van Extel: It's estimated there could be two thousand intellectually disabled prisoners in Queensland.

As the director of Sisters Inside, Debbie Kilroy regularly visits the women's jails. She paints an awful picture of what an intellectually disabled woman goes through.

Debbie Kilroy: They will usually be isolated, locked up in the crisis support unit, which is a 24-hour lock-down unit, 7 days a week, where they have no access to anything. They'll eat sandwiches, they have plastic knives and forks they are usually in suicide gowns, so they're actually treated quite horrendously and very isolated within the prison. So they're stuck in the bowels of the women's prison as such.

Cathy van Extel: Being classified as high risk also means serving the whole sentence in a high security jail. They won't be eligible to move to a prison farm or halfway house.

Lawyer Debbie Kilroy says intellectually disabled people are conned and coerced in a traumatic system.

Debbie Kilroy: I don't know if you can imagine a woman with an intellectual disability with the age of 8, 9 or 10 being locked in isolation, has no idea what's going on with her, and being abused by a system where she doesn't even have any recourse because she actually doesn't know how to get recourse. One woman, where her behaviour was a bit out there, prison officers would hold her down, cut her clothes off her, leave her naked in cells for days on end, and then if we would find out about it, Sisters Inside, we would start a process to get access or to refer her to Prisoners Legal Service. All the prison staff have to do is give, let's call her Mary Smith, a cigarette or a packet of crayons and some paper, and then she sees them as her friend again.

Cathy van Extel: Prison officers aren't trained to deal with intellectual disability, their job is security.

Sisters Inside is philosophically opposed to jail. Debbie Kilroy says there's too much community misunderstanding about who is in our prisons.

Debbie Kilroy: The law and order campaign that's out in the community, there's all these rapists and murderers in prison, is just not accurate. The media needs to be responsible and to be informing the community about who's in our prisons. And that is intellectually disabled women, mentally ill women, homeless women, Aboriginal women and horrendously abused, physically and sexually abused, women. That's who's in our prison system.

Cathy van Extel: Of course, you don't even need to have a conviction to be locked up in jail.

Forensic psychologist Susan Hayes says intellectually disabled people are more likely to be refused bail and remanded in custody, even for minor offences.

Susan Hayes: If the intellectual disability is recognised sometimes it is viewed as a factor which makes them unpredictable and perhaps a risk to the community. So therefore on that basis, they are more likely to be remanded in custody. Secondly, if the intellectual disability is not recognised, then their behaviour can look erratic and their demeanour in police questioning, and in police custody and in the court itself, can look unpredictable and perhaps a little bit dangerous, especially if they become very anxious and start acting out or start shouting or screaming.

Cathy van Extel: Susan Hayes says intellectually disabled people are extremely vulnerable to other prisoners trying to take advantage of them.

Susan Hayes: Making them drug couriers, standing over them for cigarettes and food, bashing them up, those sorts of things. So it's a difficult situation in custody.

Cathy van Extel: There are signs of change in Queensland. The Corrective Services Commission is trialling a program aimed at helping people with intellectual impairment in jail and for six months after they're released.

The problem is, some people find jail a better option than living in the community.

Adult guardian Dianne Prendergast says jail provides the essentials that they don't get on their own.

Dianne Prendergast: They have a place to sleep, they have food, they have clothing, they have a routine. There's a structure to their day, and so at the end of a prison sentence, many of our clients will reoffend so that they go back in the prison system so that they've got that support around them. And of course for those who spend time in prison and then go back into the community, they've skilled up.

Cathy van Extel: In other words, they've learned more criminal behaviour and so they'll continue to get into trouble. It all comes as a huge cost to society.

Professor Susan Hayes questions the value of jailing intellectually disabled people.

Susan Hayes: To have somebody in a reasonably high security prison environment costs between $60,000 and $80,000 a year. And if you ploughed $60,000 or $80,000 a year into community care for most people with intellectual disability, first of all that would probably be the biggest amount of money that had been ploughed into services for them throughout their life. But secondly, it could make a difference because it's a salary for a community worker to be with them, teaching them skills of adaptive behaviour, addressing challenging behaviour, sorting out basic issues such as accommodation and vocational planning and so forth.

Cathy van Extel: Nationally, the costs for police, courts and jail have been rising. The annual bill is now $11-billion.

I'm Cathy van Extel; today on Background Briefing we're looking at intellectual disability in the criminal justice system.

There's been some acknowledgement within the system that a different approach is needed.

Diversion courts have been introduced in many states with the aim of keeping vulnerable people out of jail.

In the Brisbane Magistrate's Court complex is the Special Circumstances Court.

It's a diversionary court for people who are homeless or have an intellectual or mental impairment, and have committed minor crimes.

There are calls for it to be expanded to regional Queensland but there's no guarantee even the Brisbane program will continue beyond the end of the year.

The court's run by Magistrate Christine Roney:

Christine Roney: Our approach is different to the individual defendants and we case-manage. So instead of sentencing, we see them on a semi-regular basis. That is, the court sees them, non-government organisations see them. So it's really like having an overriding case manager. It's about the frailty of humans and particularly in the context of the criminal justice system where traditionally that system has been highly punitive towards this group. So we're just really trying to bring about a different approach to get a different result.

Cathy van Extel: It could be said that you're sounding more like a social worker than a magistrate.

Christine Roney: Indeed, indeed. But I think our mission statement is to reduce offending behaviour. I don't think anybody in the community would argue that that's not what we should be doing. If I can create a sentence that both appropriately punishes someone and assists in their rehabilitation, that's really the duty I'm charged to be performing.

Cathy van Extel: Community groups working with the court will help with things like finding a suitable place to live, learning life skills, and getting paid or community work.

Christine Roney says this kind of help gives people a chance to exit the criminal justice system before they end up in jail.

Putting it bluntly, it also saves the community a lot of money.

Christine Roney: I suppose the ultimate test is how many people we're keeping out of prison. To house a prisoner, male or female, it costs about $187 a day to see people out in the community being supervised is a cost of about $10 a day. So from a very pragmatic point of view, if we can keep people out of prison and behaving themselves, we're saving the community money and we're also frankly, saving lives, in terms of the human capital of the defendant.

Cathy van Extel: People must plead guilty to access the court, even though they might not fully understand what they're doing. Christine Roney doesn't know how many in her court fit into this group. Once again, it comes down to an absence of those expensive medical reports. But the magistrate says intellectual disability is something she's mindful of.

Christine Roney: To give an example, an extreme example, we had a young man that Legal Aid in fact managed to secure funding to get a neuro psychologist's report, and we had some concerns about how he operated but it indicated he was operating at the level of about an 8 or 10 year old. That he had sufficient street and other language that masked his true lack of ability to function, but to us, as lay people, he seemed to be more capable than he was. So that was an alarming example for us about OK, at what level some of our defendants may be operating.

Cathy van Extel: Kevin Cocks took up the role of Queensland's Anti-Discrimination Commissioner last December. With the job comes a 20th floor corner office with massive windows framing Brisbane's Botanic Gardens and some of the city's finest colonial buildings, including State Parliament. He's well-versed in disability issues, having led the group Queensland Advocacy Inc., for 12 years.

Kevin Cocks acquired his own disability in a football game 20 years ago, and uses a wheelchair due to his quadriplegia. He says most intellectually disabled people are more likely to be victims before they become offenders.

Kevin Cocks: 67% of men with intellectual disability will be raped or have some unwanted sexual or physical assault in their lives. For women with intellectual disability, these statistics are even more horrifying. Nine out of ten women will be raped or have unwanted sexual or physical assault in their life.

Cathy van Extel: There are an enormous number of people in Queensland with an intellectual impairment. It's estimated to be around 110,000.

Only a fraction of them, 15%, get any help from the State government through Disability Services Queensland. The rest are either supported solely by their families or are simply falling through the gaps.

Intellectually disabled adult Melisa Avery is one of the lucky few to get government support, but it's sporadic. Her mother, Collein Avery, believes there's a link between Melisa's shoplifting and the level of support she gets.

Collein Avery: Disability Services had the intensive behaviour support team develop a behaviour plan for Melisa. Between 2006 and 2009 that plan was implemented and it was actively followed, and in that time there were no offences. Unfortunately, with a change of personnel that plan lapsed. Melisa's daily support seemed to wane, and that's when her behaviour became difficult once again, and her stealing commenced. So there's obviously a correspondence between the level of support and our daughter's behaviour.

Cathy van Extel: It's a problem right across the country.

In arguing for a National Disability Insurance Scheme, the Productivity Commission describes the current system of disability support in Australia as underfunded, unfair, fragmented and inefficient.

Adult guardian, Dianne Prendergast, believes there has to be a radical change to the way intellectually disabled people are looked after.

Dianne Prendergast: What's the point in continually churning people through the Magistrate's Court without changing behaviour, creating a criminal record that ultimately ends up with them going into jail and creates an expense and a level of education for that adult, that's simply worsens the problem.

Cathy van Extel: Federal Labor campaigned on the National Disability Insurance Scheme in last year's election. The Productivity Commission is due to present a final proposal to the Prime Minister at the end of July.

There's a long-held political wisdom that there are no votes in disability, but politicians know there are votes in looking compassionate.

Anna Bligh: Mr Speaker, it is a program that some members may have heard of. It's called Walk a Day in My Shoes. Quite simply, it is a challenge to elected Members of Parliament to spend a day in the shoes of a worker, particularly in an industry where they may not have much ...

Cathy van Extel: Last September, with her popularity plummeting, Queensland Premier Anna Bligh reached into the political bag of gimmicks and settled on the feel-good Walk a Day in My Shoes campaign to convince voters her government was listening.

The media played along and Anna Bligh accepted a challenge from Brisbane commercial radio station, 97.3, to join one of their listeners whose son attends a community-run program for people with an intellectual disability.

Announcer: You've been down at Scott's work, Christine's disabled son, learning to make earphone covers for Qantas, wasn't it?

Woman: Yes, that's exactly right. We are now in the car, we've all just been talking about Keystone and Anna it's pretty humbling, isn't it,

Anna Bligh: It's extraordinary Robin, I think - Robin and I are mothers both had the same reaction of just how lucky we are that our children don't have to live with those sorts of disabilities, and what a remarkable place Keystone is. It was just a happy place, wasn't it? It was really joyful and uplifting, everybody was having a great time to see each other ...

Cathy van Extel: That was six weeks before the Court of Appeal decision to erase Melisa Avery's criminal record. The Queensland government is largely silent on the court's point about the need for law reform.

The current Attorney-General, Paul Lucas declined to be interviewed for this story.

In response to a series of written questions, his office stated that the Justice Department is examining the issues raised in the Avery case, and is expected to report back some time this year

Law reform has not been ruled out.

Retired Supreme Court Judge, Bill Carter says the law needs to change.

Bill Carter: That issue has to be addressed. I mean we cannot regard ourselves as living in an acceptable society, the justice system of which deals with people who are intellectually disabled in that way. It is absolutely unacceptable, indeed it's reprehensible.

Cathy van Extel: Do you believe that there is any political appetite for law reform?

Bill Carter: No, I don't. There's no votes in disability.

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Cathy van Extel: Background Briefing's Co-ordinating Producer is Linda McGinnis. Technical operator, Leila Shunnar. Research and website, Anna Whitfeld. Executive Producer, Kirsten Garrett.

I'm Cathy van Extel and you're with ABC Radio National.

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