Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I present the report of the Community Affairs References Committee on the indefinite detention of people with cognitive and psychiatric impairment, together with the Hansard record of the proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

This is, in effect, a follow-up report to the report that the Community Affairs References Committee did last year that was tabled on 25 November 2015. That was the inquiry into violence, abuse and neglect against people with disability in institutional settings. Out of that inquiry, we identified the issue of indefinite detention. In fact, we thought that the issue was so important that we asked for the issue to be referred to the committee for an inquiry in and of itself.

The report that I have presented today is in two parts. The first part deals with people held in indefinite detention under forensic orders, which are criminal orders. Then there are those held via a civil route via a scheduled order under mental health, disability or guardianship frameworks. Yes, people can end up in what is basically indefinite detention via these civil routes as well.

My comments right now are specifically directed at part 1 of the report, which applies to those held in indefinite detention under forensic order. Across our states and territories, people with cognitive and psychiatric impairments are being indefinitely detained in prison due to flawed legislation, lack of support or secure care accommodation, lack of services, and not being properly diagnosed. In some cases they are in fact spending more time in prison than if they had pleaded guilty and served a sentence in full. In some cases, people are being advised to plead guilty instead of unfit to plead, because if they plead guilty they will end up doing less time in prison than if they were found unfit to plead and held in indefinite detention. I might add there that they may plead guilty when they have not in fact committed a crime.

Worryingly, we have no consistent data in this space, and, as you will see in the report, some of the latest data we have for some states is from back in 2013-14 or even earlier. What we do know from the available information is that people who are held in indefinite detention in this manner are predominantly Aboriginal and Torres Strait Islanders, and we had a number of examples of that.

The report touches on a wide range of issues, including legislative reform, the lack of forensic non-correctional or non-prison accommodation, the lack of supports and the lack of diagnosis. It is clear from this report and our inquiry that there are a range of urgent actions that are needed. We make 32 recommendations and reiterate a number of the recommendations from our previous inquiry, the inquiry into violence, abuse and neglect against people with disability in institutional and residential settings. We reiterate them because, to date, we have had no response from the government to these imperative issues, even though the report was tabled just over a year ago. So we have reiterated a number of those recommendations, but we have also gone further and made a number of other recommendations.

For a start, we need to see legislative reform. At the moment, in some states, the judiciary has no alternative but to either put somebody with a cognitive or psychiatric impairment in prison or let them go into the community. There is no middle ground, as Chief Justice Wayne Martin said at our Perth hearing. I would suggest to anybody who wants a clear understanding very quickly of the issues in Western Australia—my home state, which I am very embarrassed to say has very poor legislation in this space—to read the Hansard of the Chief Justice's evidence to our inquiry. There are very limited options, other than holding people in indefinite detention.

We received evidence around Mr Marlon Noble, whose case is now well known in Western Australia, who was held in indefinite detention for 10 years without being found guilty of a crime. He has now been released into the community but under very strict conditions, which the UN Committee on the Rights of Persons with Disability have strongly criticised, recommending that the conditions on his release be removed.

We did hear further evidence about this and in fact visited a number of correctional facilities where people are being held in indefinite detention. In Western Australia, we visited the newly established Bennett Brook Disability Justice Centre, which was very welcome, and we very much appreciated it. This is the first declared place in Western Australia where people can be released from prison into the centre and transitioned into the community. It has had limited use to date; I hope they make more use of it. But, as the Chief Justice in Western Australia explained, they cannot be sent there directly under Western Australian legislation.

We also received evidence and spent time in the Northern Territory and visited a number of facilities there, and I would like to thank the department for organising that for us in both WA and the Northern Territory.

We need to be looking at issues around better supply of accommodation so that there are alternatives to indefinite detention. We make recommendations about the need to implement a disability screening strategy so that all people who come into the criminal justice system are screened and diagnosed—and we need better diagnostic tools. In particular, we need to start using the better diagnostic tools that are coming out for people with FASD. We need to make sure, if people are entering prison but they have got through the system without having been screened or diagnosed, that they are screened as well.

We particularly need culturally appropriate resources for Aboriginal and Torres Strait Islander peoples, who are, as I said, the people who are predominantly subject to indefinite detention. We need to make sure that there are Aboriginal support workers and that Aboriginal-controlled organisations are involved in providing support and care for people under forensic orders.

I also urge people to read the recommendations in part B of our report, which relates to people who are held under involuntary orders. As I said, we received evidence, some very good evidence, that clearly points out that the system allows people to be held under what constitutes indefinite detention, and there are some changes that are needed there.

I take this opportunity to thank all of those who gave us a submission or oral evidence and participated in this inquiry. Without these people we would not have the knowledge that we have. We would not have heard about the lived experiences of people, from guardians and those who are affected to those who have been such strong advocates on behalf of those people caught up in indefinite detention. I know it is hard to believe that, in 2016, people are still being held in indefinite detention.

I thank the secretariat of the Community Affairs References Committee, who go above and beyond the call of duty. I will be tabling two more reports tomorrow—so, over this time, we have completed three substantial inquiries, and they really have worked extremely hard. I also thank members of the committee, who have also worked extremely hard to get through these three reports, of which this is the first. As I said, I will be tabling two more tomorrow.

I urge the government to read this report. Read it together with the committee's report on violence, neglect and abuse of people with disability. Implement these recommendations, or we will see no change in the terrible circumstances that Australians are finding themselves in—in indefinite detention and subject to abuse, violence and neglect.