A Senate committee has called for nationwide changes to laws and support services to end the practice of indefinite detention of people with cognitive and psychiatric impairment.

At least 100 people are detained without conviction in Australian prisons and psychiatric units under mental impairment legislation and at least half are believed to be Indigenous, it found.



The year-long inquiry tabled its final report on Tuesday, finding inconsistent legislation and inadequate support and infrastructure between jurisdictions.

Among its recommendations the inquiry – itself sparked by findings from a previous inquiry – called for further investigation and for the government to act on three already existing reports on the issue.

The committee had received 78 submissions and held public hearings across the country, which heard evidence including that people with impairments were encouraged to plead guilty to charges rather than seek a finding of unfit to plead because the custodial sentence would likely be shorter.

The committee recommended a forthcoming national statement of principles declare indefinite detention to be unacceptable and for Australian legislation be amended to reflect as much.

The inquiry found cognitive and psychiatric impairments were treated as interchangeable in all state and territory mental health and forensic mental health legislation, which expert witnesses said created significant problems.

Most mental health legislation was “founded on the idea of treatable illness”, the report said, and people with a permanent cognitive or psychiatric impairment, which rendered them unfit to plead or stand trial, could be left languishing in detention as they never met the basic requirements for release – an improvement in their condition.

The report called for Australia-wide mandated testing and consideration across all stages of the criminal justice system for hearing loss and foetal alcohol spectrum disorder (FasD), both of which often went undiagnosed, particularly among Indigenous people where the rates were often more than double.

It also recommended an Australia-wide end to mandatory detention, an inquiry into NDIS eligibility and access for people in prison by the joint standing committee, and for the NT and WA governments to transition current forensic patients from prison to secure care “as a matter of urgency”.

The committee said the federal government should provide specific assistance to the NT, where 13 people with impairments were detained in the two maximum security prisons in Darwin and Alice Springs, six of whom were in secure care units.

Scott Avery, research and policy director of the First People’s Disability Network, said an Indigenous person with disability will most likely have “had a life of unmanaged disability” by the time they come before the criminal justice system.



“When disability is not recognised and addressed, contact with the police and courts are inevitable steps on a matriculation pathway into juvenile detention and prison.”

The executive officer of the National Aboriginal and Torres Strait Islander Legal Services, Karly Warner, said the criminal justice system was “increasingly and inappropriately” used as a default care provider for Indigenous people with disability.

The committee chairwoman, Greens senator Rachel Siewert, said the inquiry had learned there were “huge gaps in services for people who have been found unfit to plead”.

“At the moment this group of people are being held in prison when they need specialised support such as mental health treatment and secure care,” she said.

Siewert said a number of the 32 recommendations reiterated some previously delivered by other reports and urged the government to “not let the report tabled today sit on the shelf for a year as well”.

In 2014 the Australian Human Rights Commission found the Australian commonwealth breached the human rights of four Aboriginal men with cognitive disabilities who were detained without conviction.

The UN disability committee this year found the indefinitely detention of Marlon Noble, an Aboriginal man from WA, amounted to inhumane and degrading treatment.

Noble was released from prison in 2012 after almost a decade incarcerated without conviction after a court found him to be mentally unfit to stand trial on sexual offence charges.



The UN committee called for Australian governments to provide an “effective remedy” and immediately revoke the 10 conditions of his release.

The Senate committee said the federal attorney general’s department was working with the WA government on a response but had not indicated a timeframe.