Neurodivergence v Court Procedure
Rethinking accessibility… Unsplash
A System Designed for the Neurotypical
All defendants are treated equally under Australian criminal law, in theory. Many neurodivergent people, such as those with autism spectrum disorder (ASD), Attention-Deficit/Hyperactivity Disorder (ADHD), or other intellectual disabilities, are unable to achieve the communicative, cognitive, and courtroom behaviour standards that true equality before the law requires.[1] Every step of the legal process, from initial interaction with the police to cross-examination in court, is hampered by this distance.
Although the lack of official medical evaluations frequently makes it more difficult for courts to identify a defendant's needs, the problem is not solely one of diagnosis. It concerns the interpretation of behaviour by legal actors; common neurodivergent characteristics such as avoiding eye contact, not directly answering enquiries, or exhibiting anxious reactions can all be interpreted as evasive, dishonest, or even hostile.[2] Such misconceptions can impact every aspect of the trial, from sentencing decisions to credibility evaluations.
Invisible Disadvantage in Criminal Procedure
Although Australia has made progress in identifying mental illness in diversion and punishment programs, little is known about neurodiversity. Undiagnosed conditions like ASD are common, especially among women and First Nations peoples. The system is ill-equipped and unwilling to accept variances without a designated exception.
The Equality Before the Law Bench Book (2025) cautions that courts should not infer dishonesty from contradictory accounts or understanding from silence.[3] However, these presumptions are still widespread. Under stress, a neurodivergent defendant could find it difficult to control their tone and body language, understand sarcasm, or follow legal procedures. These difficulties are exacerbated in the hostile environment of cross-examination.
To make matters worse, most jurisdictions do not require legal professionals to undergo training on identifying or interacting with clients who are neurodivergent. Therefore, it is the responsibility of individual solicitors, frequently under time pressure, to raise and clarify these difficulties – a responsibility that is often overlooked.
The Consequences of Misinterpretation
Serious injustices can occur when neurodivergent behaviours are misinterpreted. In certain instances, defendants are judged to be unremorseful, uncooperative, or a danger to the public - these judgements are often made based on misinterpreted presentations rather than on evidence. Adjustments are uneven, even when neurodivergence is recognised. Some courts employ plain English explanations of procedures or permit communication intermediates. Others rely only on legal assistance to translate legal concepts, which may not always occur, especially in situations with limited resources or high-volume lists.
People who are neurodivergent are at risk because of this contradiction. Aboriginal and Torres Strait Islander people, who already experience systematic discrimination in the judicial system, are disproportionately impacted by the lack of culturally appropriate and neurodiversity-sensitive procedures, according to the Pathways to Judicial Report from the Australian Law Reform Commission.[4] Disadvantage compounds where neurodivergence and cultural displacement meet.
Legal Safeguards Are Not Enough
Theoretically, neurodivergent defendants may be protected by certain legal processes. Neurodevelopmental issues can be incorporated into sentencing reports, fitness-to-stand trial assessments, and judicial discretion. However, these protections only take effect once the system has acknowledged the problem, and this acknowledgement is not at all assured.
Diagnosis frequently necessitates lobbying and access to medical specialists, both of which are frequently out of reach for those who are imprisoned or from low-income backgrounds.[5] Furthermore, when a diagnosis is made, it could be written off as unimportant or not serious enough.
There is a growing call among legal scholars for more structured accommodations. Proposals include:
Mandatory disability and neurodiversity training for lawyers, police, and judges.
Specialist courts or court lists for neurodivergent defendants.
The use of communication intermediaries is standard, not an exception.[6]
Without structural change, the current safeguards remain underutilised or tokenistic.
Why Law Students Should Pay Attention
Neurodivergence may appear to be a specialised topic to many law students, unrelated to commercial law exams or clerkship applications. However, creating a contemporary, inclusive legal practice requires a knowledge of neurodiversity. As aspiring solicitors, barristers, and policy consultants, we need to be aware of the subtle ways the system leaves those who don't fit its expectations behind.
If future practitioners cultivate the habit of asking questions such as “Does my client truly understand?” or “Is this reaction neurological rather than tactical?”, they demonstrate not only effective advocacy, but also conduct that is morally righteous, professional, and just.
Neurodiversity-informed practice must be a required component of legal education, much like trauma-informed practice is becoming more popular in family law.
Conclusion: Equal Treatment Requires Different Treatment
In Australia, justice is supposed to be blind, but it can't be apathetic. Many people are unaware of the challenges faced by neurodivergent defendants, but they are ingrained in the court system. Fairness is jeopardised when actions are misconstrued, communication is inaccessible, and legal actors are unaware.
We must view differences as worthy of accommodation rather than as deviations to preserve the idea of equality before the law. Only then will the system be able to represent the people it serves, not simply those who fulfil its predetermined criteria.
Edited by Maddy Storniolo
[1] Judicial Commission of New South Wales, Equality Before the Law Bench Book (Judicial Bench Book, 2025) 8.1.1.
[2] Ibid 8.1.2–8.1.3.
[3] Ibid 8.1.4.
[4] Australian Law Reform Commission, Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and To rres Strait Islander Peoples (Report No 133, 2017) 287–8.
[5] Law Council of Australia, The Justice Project: Final Report – People with Disability (Final Report, August 2018) 6.
[6] Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal Recognition before the Law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014) [25]–[29].