Governments are under widespread pressure to stop the indefinite detention of Aboriginal and Torres Strait Islander people with disabilities.
As University of Melbourne researchers explain below, efforts are being made to address the “system-wide” factors contributing to this ongoing violation of human rights.
Meanwhile, those concerned about the indefinite detention of people with cognitive and psychiatric impairment have until 8 April to make submissions to a new Senate Committee Inquiry.
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Louis Andrews, Anna Arstein-Kerslake, Piers Gooding, and Bernadette McSherry write:
Imagine being charged with driving offences and then being detained in prison for months on end without any prospect of a trial ever taking place. This is what happened to Rosie Anne Fulton.
Rosie, an Aboriginal woman with foetal alcohol spectrum disorder, was declared by a Magistrate to be ‘unfit to be tried’ under the Criminal Law (Mentally Impaired Accused) Act 1996 (Western Australia).
When the ABC Lateline show reported on her plight, she had been detained in a Kalgoorlie prison for 18 months and Northern Territory authorities rejected advocates’ pleas to move her to supportive accommodation near her Alice Springs family.
Indigenous people with disabilities, particularly cognitive disabilities, are vastly over-represented in the Australian prison population. The term cognitive disability captures a broad range of impairments, and affects a large number of people. It includes intellectual disabilities, but also mental health conditions such as depression, schizophrenia and psychosis, as well as acquired brain injury and foetal alcohol spectrum disorder.
In all states and territories, a defendant can be found ‘unfit to stand trial’. This legal process is designed to protect vulnerable defendants from miscarriages of justice — for example, where they cannot understand the case against them or follow court proceedings. The problem is that these processes can perpetuate and entrench injustice.
After a court finds an accused unfit to stand trial, the best case scenario is release into the community, most likely under the supervision of disability services. The worst-case scenario is incarceration in prison or an institution. And it can be incarceration with no end in sight — potentially for far longer than if the accused had been convicted and sentenced for the alleged crime.
Unfitness proceedings can violate a range of rights, including the right to a fair trial, the right to equal recognition before the law, and the right to be free from cruel and unusual punishment.
One of the worst cases of injustice concerned Marlon Noble, an Aboriginal man who was imprisoned for over 10 years without conviction in Western Australia. Noble has now been released into the community but remains under indefinite supervision, and is subject to severe restrictions on his freedom.
People with Disabilities Australia (PWDA) estimate that there are at least 100 people detained across Australia without conviction in prisons and psychiatric units under mental impairment legislation; and that at least 50 people from this group would be Aboriginal and Torres Strait Islander.
System-wide failings
According to the Aboriginal Disability Justice Campaign (ADJC), a community organisation campaigning on this issue, cases like that of Marlon Noble are indicative of much deeper, system-wide failings that lead to the incarceration of Indigenous people with cognitive disabilities.
Current figures suggest that Aboriginal and Torres Strait Islander people with disability are almost 14 times more likely to be imprisoned than the rest of the population.
There is a range of explanations for the over-representation of Indigenous people with disabilities in Australian prisons. Indigenous people are more likely to experience disabilities caused by structural disadvantage, including poverty and inaccessible health services.
At the same time, people with disabilities in general are more likely to experience poverty, isolation and increased interactions with the criminal justice system. Indigenous people with cognitive disabilities then experience double-disadvantage and discrimination.
The indefinite detention of people with disabilities in Australia has drawn criticism from law reform agencies, human rights bodies and non-government organisations.
Critics include United Nations human rights treaty bodies such as the Human Rights Council and the Committee overseeing the Convention on the Rights of Persons with Disabilities. Indeed, the Committee didn’t just criticise indefinite detention, it unequivocally called for an end to the practice of indefinitely detaining people after finding them unfit to be tried.
In the face of this criticism, the Australian Government recently announced a Senate Committee Inquiry into the indefinite detention of ‘people with cognitive and psychiatric impairment’. (Submissions to the Senate committee inquiry are due by the 8 April 2016).
A number of government and non-government reports have made recommendations to address this issue.
The First People’s Disability Network, Australia’s leading body representing Australia’s First Peoples with disability, their families and communities, has made a detailed submission to the Western Australian government. Recommendations for national reform have come from the Australian Human Rights Commission, as well as the Aboriginal Disability Justice Campaign, among others.
A group of researchers, led by Professor Eileen Baldry from the University of New South Wales, has charted reform options to address what is described as the ‘predictable and preventable path’ of Indigenous Australians with cognitive disabilities in the criminal justice system.
University of Melbourne researchers – ourselves included – have recently partnered with Professor Baldry to commence a trial program to offer support to people at risk of being deemed unfit to stand trial.
The research will be undertaken in partnership with the North Australian Aboriginal Justice Agency to focus specifically on supporting Indigenous people.
Despite three State and Federal law reform agencies recommending formal support in this area, no support measures have been tested in any Australian jurisdiction.
Our research aims to address this gap, testing such measures and analysing unfitness rules against Australia’s international human rights obligations.
• See related news items compiled by the Aboriginal Disability Justice Campaign
Disclosure: This project is funded by the Australian Government through a National Disability Research Development Grant.
The project is being undertaken jointly between the University of Melbourne, the University of New South Wales, the North Australian Aboriginal Justice Agency (Northern Territory), the Intellectual Disability Rights Service (NSW), and a Victorian legal aid service. The researchers are Professor Bernadette McSherry, Professor Kerry Arabena, Dr Anna Arstein-Kerslake (UoM), Dr Piers Gooding and Mr Louis Andrews at the University of Melbourne, and Professor Eileen Baldry at the University of New South Wales.
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