NDIA Accountability Project

Submission 350 — Intellectual Disability Rights Service — Inquiry into the Thriving Kids initiative

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Inquiry into the Thriving Kids initiati

3 October 2025

Australian Parliament House of Representatives. Standing Committee on Health, Aged Care and Disability Inquiry into Thriving Kids Via: Health.Reps@aph.gov.au

  1. On 2 September 2025 the Minister for Health and Ageing, the Hon Mark Butler MP, referred an inquiry into the Thriving Kids initiative to the House Standing Committee on Health, Aged Care and Disability.

  2. The Terms of Reference for the inquiry are broad and relate generally to questions about diagnosis and the availability of support and service infrastructure.

  3. Intellectual Disability Rights Service (IDRS) is a community legal centre and disability advocacy service for people with cognitive impairment in NSW. IDRS is the only service of its kind in Australia, with two key service functions. Firstly, a community legal centre, the Ability Rights Centre (ARC), offers free criminal and civil legal assistance to people living with a disability across NSW and supports over 1000 people per year which relevantly, incudes a NDIS Appeal. Secondly, the Justice Advocacy Service (JAS) provides 24/7 support across NSW to people with cognitive impairment who come in contact with the criminal justice system, whether as victims, defendants or witnesses. Each year, JAS supports on average 2,500 people with cognitive impairment, including approximately 2,250 people recorded as offenders and 200 people recorded as victims of crime.

  4. With over 40 years’ experience, we have seen first-hand how aspects of the criminal justice system can disadvantage and discriminate against people with cognitive impairment and how it becomes a defacto support for people denied appropriate service and support for their disability far earlier in their lives.

  5. IDRS welcomes the opportunity to make a submission to the House of Representatives inquiry into the proposed Thriving Kids program. We are interested in doing so because the people IDRS supports are often those who have not had a diagnosis of cognitive impairment sufficiently early in their lives to make accessing the rights services and support impactful and meaningful. This lack of support and early intervention makes our clients — some of the most vulnerable members of the community — predisposed to contact with the criminal justice system.

  6. IDRS has limited policy and/or research resources and therefore this submission highlights significant evidence about the nexus between intellectual disability / cognitive impairment and the criminal justice system. This nexus itself exemplifies the failures of systems to appropriately recognised and respond to different forms of disability.

  7. The term ‘cognitive disability’ refers to an ‘ongoing impairment in comprehension, reason, adaptive functioning, judgement, learning or memory that is the result of any damage to, dysfunction, developmental delay, or deterioration of the brain or mind’ (NSWLRC 2012). This includes but is not limited to intellectual impairment; communication disorders; attention deficit hyperactivity disorder; autism spectrum disorders; acquired/traumatic brain injury; epilepsy and foetal alcohol spectrum disorders.

ABN 11 216 371 524.

PO Box 20228, World Square NSW 2002.

IDRS: 9265 6300 | JAS: 1300 665 908 | ARC: 02 9265 6350. www.idrs.org.au.

Justice • Respect • Persistence

  1. Developmental disorders include autism spectrum disorder, Down syndrome, intellectual disability, cerebral palsy, attention-deficit hyperactivity disorder (ADHD), specific learning disorders (for example, dyslexia), and developmental language disorder, which impacts a child’s ability to use and understand language. It may take some years for some of these conditions to emerge and be recognised and often after a child has had exposure to formal learning through care or school settings. Early support and access to appropriate services is therefore crucial to that child’s outcomes.

  2. People with disability may come into contact with the criminal justice system as a victim of crime, a person accused or suspected of a crime, or as a witness to a crime. People with disability, including young people, are overrepresented across the criminal justice systems in Australia and are at a heightened risk of violence, abuse, neglect and exploitation in criminal justice settings. This contact often starts early, in youth, and can be lifelong.

  3. Research shows that people with mental and cognitive disability are over-represented in the criminal legal jurisdiction as both victims and offenders. People with cognitive and/or psychosocial disability are significantly overrepresented amongst the group who are charged with or accused of criminal offences. They are also disproportionately victims of abusive or violent criminal conduct. In Australia, those with disability who are most likely to be incarcerated are persons from poor, highly disadvantaged families and neighbourhoods, as well as Indigenous Australians.

  4. Evidence from studies using administrative data from criminal justice and human service agencies, work by the Aboriginal Disability Justice Campaign, reports by the Australian Human Rights Commission and NSW and Victorian Law Reform Commissions all reveal that protections for people with multiple and complex support needs are lacking and that diversions and therapeutic approaches do not address the underlying causes of concerning behaviour engaged in by people with disability. The law is a blunt and often punitive instrument by which to address these matters and for young people in particular, puts them on a lifelong journey of carceral engagement rather than therapeutic engagement. The earlier these support systems are provided and are available to the people who need them the most, ensure positive and better outcomes.

  5. IDRS argues that there is ample evidence of the social and financial benefits that would flow to individuals, families and community from a wholesale change in the way the law, the criminal justice system, and human and social agencies work together to support people with mental and cognitive disability.

  6. Early intervention through appropriate diagnosis is critical to a child or young person and their family or carers, especially when linked to life long and ongoing care and systemic reasonable adjustment. Such social approaches can uphold the human rights of a person experiencing disability.

  7. To frame IDRS’s concerns about the absence of definitions applying to children and young people with intellectual disability, and the inability of system to adequately respond to Page 2 of 6

Inquiry into the Thriving Kids initiati

them, we draw on the extensive work of Emeritus Professor Eileen Baldry who has traced the trajectory of young people, undiagnosed with cognitive impairment, into the criminal legal system. Professor Baldry writes:

Persons with cognitive disabilities such as intellectual disability, borderline intellectual disability, and acquired brain injury are overrepresented in Australian criminal justice systems both as victims and as offenders. Data obtained in Australia and internationally indicate that up to 12% of the prison population has an intelligence quotient (IQ) of less than 70, with up to 30% having an IQ of between 70 and 80, indicating substantially higher representation of intellectual disability and borderline intellectual disability than in the general population and Indigenous Australian adults in prison are significantly more likely to have intellectual disability than their non-Indigenous counterparts.

Professor Baldry’s work clearly demonstrates how persons with intellectual and other cognitive disabilities are vulnerable to the harms of control-and-punishment systems. Poor recognition of cognitive disability coupled with the presence of mental disorders and substance use disorders is associated with multiple and compounding social disadvantage and vulnerability to harm.

While precise figures for bail courts are unavailable, studies in NSW show young people with cognitive impairments re significantly over-represented in youth justice systems indicating 18-23% of young people in custody having cognitive functioning in the low-range (IQ < 70) and a further 39-46% in the borderline range (IQ 70-79). For example, one 2023 survey found 25% of children in custody had diagnosed cognitive difficulties.

Of course, bail courts are just one part of the system and other studies on young people in detention record a high prevalence of cognitive impairment of those incarcerated, with some finding nearly all young people in detention have severe cognitive impairment. Specifically, a 2023 survey of 540 children in custody found 25% had a diagnosed cognitive impairment, and a 2018 study showed that 89% of sentenced young people had at least one severe neurodevelopmental impairment. These figures are notably higher than the general Australian population and highlight significant challenges in identifying and supporting young people affected.

Under diagnosis is also a problem for people coming before the criminal legal system. For example, studies indicate that just two of the 36 young people with Foetal Alcohol Spectrum Disorder (FASD) identified in a 2018 study had previously been diagnosed. However, currently, there is no accurate data that measures the prevalence of FASD in the general population in Australia although AIFS report there is correlative data that suggests this cognitive disorder is prevalent amongst Indigenous populations and in children in out of home care. IDRS is aware of the increased difficulty experienced for people obtaining a FASD diagnosis.

The ABS rates of autism are rising as understanding and diagnosis increases. What is known, is that the condition is lifelong affecting how people behave and interact with the world around them who may experience difficulties with communication, social Page 3 of 6

interaction and restricted or repetitive interests and behaviours. Delayed diagnosis means that young people and their carers and family members will not receive the support and services they need to help navigate an environment that can be overwhelmingly difficult. Education and housing settings is particular need to be included in foundations support service infrastructure.

  1. IDRS’s Justice Advocacy Service (JAS) supports over 2,500 people with cognitive impairment each year, as they navigate their interactions with police and their eventual engagement with the criminal legal system. Up to 20% of all JAS clients have their cognitive impairment diagnosed for the first time, often despite their years in institutional setting including education and health (which should have been places of support and therapeutic assistance) and through youth and adult justice systems.

  2. IDRS’s Ability Rights Centre is our community legal centre providing support and advocacy for people with disability, and specifically for people with cognitive impairments in both the civil and criminal jurisdictions (comprising 30% its work). ARC assists over 1358 clients per year, 77.1% of whom have cognitive impairment. ARC provides assistance and support in areas including guardianship and financial management, family violence, care and protection, consumer protections, discrimination and housing issues amongst other civil matters.

  3. Calls for ARC’s assistance to support people with legal matters in police custody increased by 30% during the last year. A significant portion of our work involves supporting people with cognitive disability who have contact with the criminal justice system. Many ARC clients first contact with the police and courts was as a young person. They have had extensive history of contact with police and the courts before they have ever received appropriate support and diagnosis. We know that our clients with cognitive impairment have earlier first contact with the police and courts than children and young people without disability and are more likely to end up serving sentences of imprisonment than their peers without cognitive disability. For example:

‘Celia’ was a 25-year-old woman with borderline- mild intellectual disability. She attended mainstream classes at school but had been unable to complete her education. She would often get asked to leave school and would get repeatedly suspended. She had no formal supports and after being kicked out of school had no friends. She would stay home alone with her family each day, but her family would get frustrated with her at home. She experienced significant domestic violence from her father including physical and sexual abuse. She had no contact from any outside supports because she had never been properly diagnosed as having a disability. Desperate for help she would repeatedly make calls to 000 but she was unable to express herself and would just stay silent. This resulted in her getting arrested and charged for making false reports to the police. Because of her lack of understanding she continued to breach her bail conditions about false calls and was bail refused. Celia ended up serving 6 months on remand. It was when Celia was in custody that she was eventually linked up with supports. Page 4 of 6

  1. Moderate to mild developmental delay and autism are the high-risk group for trajectory to the justice system. IDRS knows that far too many young people with cognitive impairment have been expelled from school, or left school because of harsh or inappropriate treatment, discrimination and an inability to receive reasonable adjustment to accommodate their learning needs. There are few resources available to work with education departments to support children at school which is a proven and critical protective factor. Children with mild to moderate developmental delay are those who most often ‘fall through the cracks’. It would be inadvisable to create additional social infrastructure that did not ameliorate this outcome.

  2. For children and young people experiencing family and domestic violence, and who acquire a brain injury as a consequence of that violence (which often leads to developmental delay and other negative consequences, often lifelong), is very poor to non-existent for those children. Too often, a diagnosis of acquired brain injury often not identified until much later in life and often when people with cognitive impairment are incarcerated and part of the system. Improved screening and education across the domestic and family violence sector for children would make a difference. Focus continues to be is on immediate safety and housing interventions. However, this focus misses an opportunity for more holistic intervention and foundational support.

  3. Early intervention is essential to stop a trajectory from school to criminal legal system involvement. In this context, if funded and implemented properly, Thriving Kids provides a significant opportunity for positive intervention and the much-needed investment in mainstream, foundational support and service infrastructure for people with disability who are not able to access the National Disability Insurance Scheme, or who choose not to.

  4. IDRS believes there are multiple opportunities for Thriving Kids to make a difference:

  • Definition and breadth of services to be covered by foundational supports that are more than health and medical services to be available to people with disability at all stages of their lives and thought the evolution of their disability.
  • Access to affordable or free cognitive assessments, especially in underserved regional, rural and remote locations, and made culturally accessible for First Nations families.
  • Access to affordable or free support services for all affected children and their families and carers.
  • Significant capacity building required in NSW including,
    • across the mainstream health sector as there is a dire lack of experienced, available and affordable practitioners to support children with cognitive impairment including child psychiatrists, paediatricians, psychologists, speech pathologists, occupational therapists, audiologists, physiotherapists, and other professionals including specialist teachers. Page 5 of 6
  • across the mainstream education sector to be better equipped and resourced to work with this group of children.
  • family support and childhood maternal health services to improve support for affected families and especially mothers with cognitive impairment at risk of having their children removed because of systems biases and failures, and/or their experiences of family violence.
  • reform in the service and responses in the out of home care system especially for First Nations peoples
  • increase the capacity, capability and willingness of family and domestic violence services to support and respond to women victim survivors with cognitive impairment, and their children (who may also have cognitive impairment).
  • better resourcing mainstream programs to identify possible cognitive impairment and to appropriately apply screening tools, prior to suggestion/referral for assessment/diagnosis.
  • improved resources of early childhood practitioners and specialists to identify cognitive impairment from birth and across the critical early development years. The system is fragmented and ad hoc and relies on good luck than good management.

Thank you for the opportunity to offer our views and experiences of working with people with moderate and mild cognitive impairment who come into contact with the criminal justice system as a direct consequence of systemic failures in service and support infrastructure – the very type that we hope Thriving Kids will partly solve.

For further invitation on any of the issues raised in our submission, please contact Joanne Yates on redacted or by phone redacted. We look forward to briefing the Committee, should you wish us to do so.

Your sincerely

redacted Joanne Yates Chief Executive Officer Page 6 of 6