Over 1,000 Australians with cognitive disability are detained indefinitely each year

13th May 2021

In February, the Royal Commission into the Violence, Abuse and Neglect of People with Disability commenced public hearings on a shameful subject that has long been neglected: the indefinite detention of people with cognitive impairments and/or mental illness in our criminal justice system.

Indefinite detention can be what happens to defendants in criminal cases when they are deemed unfit to stand trial.

In common law, this ‘unfitness test’ is based on whether the accused has sufficient mental or intellectual capacity to understand the proceedings and make an adequate defence.

If a person is found to be unfit to plead, they can be detained in a prison or forensic unit for the purposes of treatment. This detention can be indefinite if the person is deemed to be at risk of harming themselves or others and is not seen to improve.

While every state and territory has an indefinite detention regime, not every jurisdiction collects or publishes statistics on how many people are being held indefinitely or for how long.

Australians for Disability Justice, an advocacy group, believes over 1,000 people with cognitive impairments and/or mental illness are indefinitely detained in Australia every year. According to Australians for Disability Justice, up to 30% of this cohort is Aboriginal or Torres Strait Islander.

This is supported by research from UNSW, which shows that First Nations people are significantly over-represented among those with disability in Australian prisons.

Governments put on notice

Federal, state and territory governments have been put on notice about this practice before.

In 2016, a Senate inquiry recommended significant reforms to the use of indefinite detention, especially when it came to those with cognitive impairments.

The report was particularly concerned about ‘the sometimes arbitrary nature of such detention’, particularly ‘in a criminal justice facility’.

The UN Committee for the Convention on the Rights of People with Disabilities (CRPD) has also formally asked Australia twice to dismantle its indefinite detention regime. Scotland leads the world in doing away with the practice, and many European countries are following suit.

Disability justice advocates have also long pushed for change in Australia. For example, the Tasmanian Law Reform Institute reviewed Tasmanian law and recommended significantly limiting the use of indefinite detention.

Most jurisdictions have a review tribunal process to determine whether people being held indefinitely can eventually be released with the help of medication or behaviour support. However, all reviews are based narrowly on the risk that these people pose to themselves or the community, not on whether a person can live safely in the community with support.

Many people with mental health disorders also do not respond to medications or other therapies. And crucially, there is no ‘cure’ for a person with cognitive impairment, such as someone with an intellectual disability or acquired brain injury.

Abuse in detention

Another concern is that indefinite detention is often disproportionate to the alleged offence.

For example, people can be held indefinitely for minor crimes, such as threatening behaviour. Those without disability who are convicted of a crime like this receive a sentence with a definite release date.

This means that there are two different forms of justice being meted out in Australia – one for people with disability and another for those without. In other words, justice is not being served.

In one notable case, the UN CRPD found that the Australian Government violated the rights of a Yamatji man, Marlon Noble, who was intellectually disabled. He was held for ten years without being convicted of a crime.

The Committee noted that Mr Noble had no idea how long he would be held. The Committee found that ‘the whole judicial procedure focused on his mental capacity to stand trial without giving him any possibility to plead not guilty and test the evidence submitted against him’.

Making matters worse, people with cognitive impairment and mental illness who are indefinitely detained often experience serious human rights violations in prisons or forensic units.

Time and again, the Australian Human Rights Commission has found that Aboriginal and Torres Strait Islander people with cognitive disability have experienced cruel and arbitrary punishment in detention, such as being held in isolation and without disability support.

In 2016, a young Arrernte man, who had been placed into a restraint chair and injected with tranquillisers up to 17 times by staff at the Alice Springs Correctional Centre.

Despite serious objections from his guardians, the man remains indefinitely detained in the NT. His case, along with others, has been referred to the UN.

His family and guardians will also present evidence at the Royal Commission hearings, detailing his experience in indefinite detention.

Mr Noble, the Arrernte man and many others have experienced abuse and violence in their lives due to their disability, including during their time in detention. They, and thousands like them, have been subjected to forced medications and restraints that are clearly not therapeutic for people with cognitive disability.

It’s shameful that this is happening in a country as affluent as Australia, which has ample capacity to care for people with disability, even those who require highly complex support.

What must change

In dismantling our indefinite detention system, the key is to provide more disability-focused support to those at risk of coming into contact with the criminal justice system.

Besides this, other reforms are also urgently needed:

  • Reforming the law to provide other justice options for defendants who are deemed unfit to stand trial, including diverting them from court and potential detention. The length of detention should also be proportionate to the crimes they are alleged to have committed.
  • Establishing a community-based, culturally safe accommodation and treatment system for people with disability who are accused of crimes to serve as an alternative to prison, as is available in Scotland.
  • Providing additional legal support to people deemed unfit to stand trial, giving them a voice in the process.

It is inhumane to hold anyone with disability in indefinite detention in such an arbitrary manner. We hope that by sharing the stories of these people with the Royal Commission, this deplorable exercise will finally be put to an end.

Patrick McGee, national manager for policy, advocacy and research at the Australian Federation of Disability Organisations, contributed to this article.

This is an edited version of an article first published on The Conversation.

Eileen Baldry AO is Deputy Vice-Chancellor Equity Diversity and Inclusion and professor of criminology at UNSW.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Human rights Disability Criminal justice Detention Mental health