1200 People Indefinitely Detained in Australia
More than 1200 people are indefinitely detained in every state and territory of Australia without being convicted of any criminal offence. This is a counterproductive solution for those who are deemed unfit to plead after being charged or found ‘not guilty’ due to mental impairment. In Queensland and the Northern Territory, such orders had been used to detain individuals for up to 42 years and 30 years respectively.
Under these orders, people have spent longer in detention than they would have in prison if they were found guilty.
OPCAT
In 2016, the United Nations found that the WA Government had breached the UN Convention on the Rights of Persons with Disabilities after imprisoning Marlon Noble for more than a decade without being put on trial and urged law reform.
In 2017, Australia ratified the Optional Protocol to the Convention Against Torture (OPCAT), which would result in greater oversight and regular inspections of all detention centres in Australia. This would allow for the prevention and detection of human rights abuses prior to them occurring. However, five years after the ratification of OPCAT, the measures are still not in effect. The Australian Human Rights Commission has criticised both major parties for their slow approach to implementing OPCAT.
Background: The Premier’s Promises
In 2016, before he was elected Premier, Mark McGowan promised to make sure detainees had access to natural justice and suitable medical treatment and said reform was ‘urgently needed.’ Five years after his election, the system has not changed. New legislation was drafted in 2019 but was not passed by Parliament.
Fitness to Stand Trial in Western Australia
In Western Australia, some mentally impaired accused are encouraged to plead guilty, even if they are innocent, to avoid indefinite detention that they may receive under the legislation. It was estimated that 95% of Aboriginal people appearing in Western Australia had cognitive disabilities or a mental illness. The solution to this issue is not detention, but rather early diagnosis, intervention and treatment.
In one case, an Indigenous teenager was jailed for 10 years after being declared unfit to plead at 14 years old. This is considerably longer than they would have spent in prison if they pleaded guilty.
“Everyone is ... fearful of the prospect of a client being found unfit to plead and being subject to a custody order.”
- Peter Collins, Director of Legal Advocacy at Aboriginal Legal Service of WA.
WAAMH’s Reform Recommendations
At the 2016 WA Mental Health Conference, Mark McGowan made a public commitment to reforming the Criminal Law (Mentally Impaired Accused) Act (CLMIA Act) during his first year in office. The Western Australian Association for Mental Health (WAAMH) highlighted their top priorities and Mr McGowan’s responses to them.
The Premier committed to allowing judiciary discretion to impose a range of options for mentally impaired accused by introducing a community-based order for mentally impaired accused found unfit to stand trial. However, he did not address WAAMH’s call to repeal Schedule 1 to make custody orders no longer compulsory for some offences.
The Premier agreed that custody orders should be limited terms, no longer than the term the person would likely have received had they been found guilty of the offence.
No response was made to WAAMH’s call for rights to information and written reasons for a decision in court and proceedings of the Mentally Impaired Accused Review Board, nor did he address the call to introduce a special hearing to test the evidence against an accused found unfit to stand trial.
The Premier committed to ensure determinations regarding the release of mentally impaired accused from custody are made by the Mentally Impaired Accused Review Board but with a right of review before the Supreme Court on an annual basis.
The Bill
As WAAMH’s CEO, Taryn Harvey, says, ‘the government’s had ample time to do the work of preparing that draft.” The WA Government is expected to reform the Criminal Law (Mentally Impaired Accused) Act 1996, with legislation expected to be tabled in Parliament soon. However, the WA Government must include community advocates and service providers in discussions for implementation of the bill—or risk vulnerable people slipping through the cracks.
WAJA’s Project
In Semester 1 2022, WAJA completed a project investigating WA’s Fitness to Stand Trial mechanism in conjunction with WAAMH and Magistrate Felicity Zempilas. The project identified deficiencies in the current system and provided recommendations to improve the accountability and transparency of how the Act operates for an accused deemed potentially unfit to stand trial.
Call to Action
Spread the word! Share this information with friends and family. As the legislation is close to being introduced, WAJA will be covering this issue further. Watch this space.
References
Nino Bucci, Knaus C, ‘More than 1200 people are detained indefinitely in Australia with no criminal conviction’, The Guardian (Online, 11 August, 2022) < https://amp-theguardian-com.cdn.ampproject.org/c/s/amp.theguardian.com/society/2022/aug/12/more-than-1200-people-are-detained-indefinitely-in-australia-with-no-criminal-conviction>
Alicia Bridges, ‘Mark McGowan's Promise to Stop Jailing Mentally Impaired People Indefinitely Still Unfulfilled,’ ABC News (online, 17 May 2022) <https://www.abc.net.au/news/2022-05-17/mentally-impaired-custody-reforms-go-unfulfilled-by-mark-mcgowan/101061754>.
Melissa Coade, ‘Time’s up for Australia to implement OPCAT, commissioner says,’ The Mandarin (online, 25 January, 2022) <https://www.themandarin.com.au/179473-times-up-for-australia-to-implement-opcat-commissioner-says/>
Calla Wahlquist, ‘Mentally Impaired Encouraged to Plead Guilty to Reduce Jail Time Inquiry Told’, The Guardian (online, 19 September 2016) <https://www.theguardian.com/australia-news/2016/sep/19/mentally-impaired-encouraged-to-plead-guilty-to-reduce-jail-time-inquiry-told>.
Western Australian Association for Mental Health, ‘ALP Commitment to Reform of the CLMIA Act’ (Media Release, 23 March 2016) < https://waamh.org.au/news/alp-commitment-to-reform-of-the-clmia-act>.