Australia’s UPR 2015
NGO Coalition Factsheet
Issue
Over representation and the indefinite detention of persons with disability within the criminal
justice system.
Background
National figures indicate at least half of the Australian prisoner population has some form of
psychosocial, cognitive or physical impairment,1 and the number of prisoners with disability
entering or leaving Australian prisons throughout a year is in the tens of thousands.2
Aboriginal and Torres Strait Islander people with disability are almost 14 times more likely
to be imprisoned than the rest of the population.3 It is estimated that the incidence of
disability in Aboriginal and Torres Strait Islander communities is twice that of the general
community, so it can be assumed that there is significant over-representation of Aboriginal
and Torres Strait Islander people with disability in Australian prisons.
Of the significant numbers of people with disability in the criminal justice system, there are
people being detained past the cessation of the supervision or custody order, for indefinite
periods. Other than Western Australia, there is no centralised data collection process at either
the state and territory level or by the Commonwealth regarding how many people with
disability are indefinitely detained, and how many of that group are Aboriginal and Torres
Strait Islander people with disability. Anecdotally, it seems 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.4
All Australian jurisdictions have in place legislation that addresses a defendant within the
criminal justice system and their fitness to stand trial. These justice diversion provisions are
applied when people with cognitive or psychosocial disability are deemed ‘unfit’ to stand
trial. An unfitness test may arise as an issue before or during the trial process.5 These justice
diversion provisions have resulted in people with disability being detained indefinitely in
prisons or psychiatric facilities without being convicted of a crime, and for periods that may
significantly exceed the maximum period of custodial sentence for the offence. This situation
is exacerbated by a lack of appropriate accommodation, therapeutic and disability support
options available for people with disability who are deemed unfit to stand trial due to an
intellectual, cognitive or psychosocial disability. This practice of arbitrary detention is
1
Australian Institute of Health and Welfare (2013), p 3
Baldry, E. Disability at the Margins: Limits of the Law. Griffith Law Review, 2014 Vol. 23, No. 3, 370–388,
3
Senate Select Committee on Regional and Remote Indigenous Communities, Parliament of Australia,
Indigenous Australians, Incarceration and the Criminal Justice System (March 2010) 5.
4
Sotiri, M, McGee, P, & Baldry, E (2012) No End in Sight. The Imprisonment and Indefinite Detention
of Indigenous Australians with a Cognitive Impairment. Sydney: University of NSW.
5
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, ALRC
Report 124, (2014).
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disproportionately experienced by Aboriginal and Torres Strait Islander people with
disability.6
The current response in the Northern Territory and Western Australia has been to build
Disability Justice Centres, and in Queensland to detain people in its Forensic Disability Service
and highly restrictive ‘community based treatment settings’. However, these facilities still
operate as institutional places of detention, with features such as long term solitary living
arrangements, locked windows and doors, video surveillance and limited opportunities for
physical, recreational, therapy, rehabilitation or social activities.7
Congregating unconvicted people with disability in this way can increase stigma towards
people with disability and community perceptions of dangerousness. It is also well
documented that the institutional congregation of people with disability intensifies their
exposure to restrictive practices, violence, and abuse. The development of this new form of
institution for people with disability is discriminatory; and also heightens the imperative for
Australia to implement a robust oversight mechanism to monitor places of detention such as
the model provided by the Optional Protocol on the Convention against Torture (OPCAT).8
In reviewing Commonwealth laws and programs and legal capacity for people with disability,
the Australian Law Reform Commission recommended reform of the ‘unfitness’ test, provision
of supports, limits and reviews on detention. Australia has yet to respond to this report.9
Proposed Recommendations
Australia should develop and implement a range of gender and culture specific
diversionary programs and mechanisms and community based sentencing options that
are integrated with individualised disability support packages and social support
programs to prevent people with disability coming into contact with the criminal justice
system.
Australia should establish uniform national legislation, in line with international human
rights law, to facilitate due legal process to end indefinite detention of people with
disability without conviction. This should be accompanied by the establishment of
culturally relevant administrative and disability support frameworks that enable
unconvicted people with disability to receive genuine community based treatment,
rehabilitation and support in the community.
Aboriginal Disability Justice Campaign, ‘Position Statement on the Inappropriate Incarceration of Aboriginal
People with Cognitive Impairment’, (Position Paper, People with Disability Australia, October 2008)
<www.pwd.org.au/systemic/adjc.html>.
7
People with Disability Australia, ‘Consideration of the 4 th and 5th Reports of Australia by the committee to the
Convention Against Torture’, (Submission, People with Disability Australia, October 2014)
<www.pwd.org.au/documents/pubs/SB14-UNCAT.doc>.
8
Ibid., para 101, p. 36
9
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, ALRC
Report 124 (2014).
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2