Over 1,200 people held indefinitely in Australia without criminal conviction | Mental Health

More than 1,200 people with mental disabilities are being held indefinitely in Australia, some for decades, without being convicted of a criminal offence.

Analysis by Guardian Australia found that each state and territory detains people using a variety of court orders which in some cases can result in a person being detained or subject to strict conditions for life.

Those held indefinitely without conviction are most often those found unfit to plead after being charged with a criminal offense or found not guilty due to mental disability.

Information on the number and status of detainees is difficult to establish because no national register is kept and Australia has failed to meet its obligations under an international convention against torture to provide for unannounced visits to prisons. places of detention.

Ben Buckland, senior adviser at the Association for the Prevention of Torture, says that leaves the public in the dark.

“The scariest thing is to imagine what we don’t know,” Buckland says.

“Because already the things we know are…pretty concerning.”

Victorian ombudsman Deborah Glass, who described a 2018 case involving the imprisonment of a woman with a significant developmental disability as the saddest survey she had ever done, told the Guardian Australia that while there was no doubt that some people with developmental disabilities could be a danger to themselves and others, “putting someone who was maybe being a danger to others in a prison environment is… fundamentally not therapeutic, will be counterproductive.

“They will come out of this worse than before. And that’s counterproductive for us as a society, because we’re going to pay for even more support, we’re going to pay to repair even more damage.

“Intrinsically unfair”

Guardian Australia posed questions about indefinite detention to every state and territory government. The ACT is the only jurisdiction that does not allow indefinite detention.

Some declined to answer, instead referring to annual reports containing data months old.

Orders that allow indefinite detention in some jurisdictions can be removed or challenged at any time, making it difficult to be precise on the numbers at any given time.

But combining data from annual reports with current data provided by each jurisdiction this year shows that 1,215 people have been detained or restrained under a court order.

For the purposes of the analysis, every individual subject to a detention order was included, although some may live in the community under strict conditions.

New South Wales detained 635 people in the 2021-22 financial year, compared to 324 in Queensland and 130 in Victoria.

A Queensland individual had been on a medical-legal order for 42 years. Queensland Health and Queensland Corrective Services declined to comment on the case, but the majority of people in the state on medical-legal orders are not in custody.

The Northern Territory has 13 people with mental disabilities held indefinitely under prison supervision orders, most of whom are in Darwin Correctional Centre. A person has been in command for more than 30 years.

“Criminal offenses with which these individuals under surveillance were originally charged include homicide and related offences, aggravated assault, arson and indecent assault with a child,” a spokesperson for the office said. NT Department of Justice.

In Western Australia, the law allows anyone considered “mentally defective” to be detained indefinitely, at the discretion of the Attorney General.

There were 53 mentally ill inmates in the state as of April 8, including 10 in prison, 26 inmates in a licensed hospital and 14 in the community on parole orders.

Before being elected, Prime Minister Mark McGowan promised to end the indefinite detention of people deemed to have mental disabilities. But more than six years later, no legislation has materialized. Individuals may spend more time in detention than they would have if found guilty of the crime with which they were charged, rather than not guilty or unfit to plead.

Taryn Harvey, chief executive of the Western Australian Association of Mental Health, said the government needed to provide “clear direction” on what its new laws would do and when the legislation would be introduced.

“It’s so inherently unfair and so at odds with how our justice system works.”

Federal support required

Australia’s detention regime is set to come under international scrutiny in the coming months, with the UN Subcommittee on Prevention of Torture due to visit in October.

Under an international protocol ratified more than four years ago, an independent monitor is supposed to monitor all detainees.

But Australia has repeatedly delayed implementing changes to its detention regime required under the Optional Protocol to the Convention against Torture, known as the Opcat.

Opcat signatories must establish regular preventive visits to places of detention by independent bodies known as National Preventive Mechanisms (NPMs).

The attorneys general of Victoria and NSW wrote jointly to the former Morrison government last year saying they would not be able to meet the Opcat demands without federal government support. Queensland reportedly made similar statements.

A spokesperson for the Victorian government said that although it has put in place “robust oversight regimes to ensure those in custody are protected from torture and other cruel, inhuman or degrading treatment or punishment”, Opcat has imposed “additional obligations” that the former coalition government had “refused” to fund adequately.

Federal Attorney General Mark Dreyfus has confirmed that Australia has received an extension to fully comply with Opcat until January.

His office said the Commonwealth NPM was ‘fully functioning and conducting Opcat-compliant inspections’. But a spokesperson said only one state had set up a fully functioning NPM in July.

They did not comment on whether the federal government would provide more funding to meet the obligations by January, saying only that it would “work with states and territories.”

Buckland says the protocol has had a strong deterrent effect in other countries where it has been implemented.

“The government has to overcome this hurdle of deciding how it will work and who is going to fund it,” he says. “The federal government has signed on, so they may have to pay for it as well and help the states pay for it.”

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