Dear Mr Dreyfus,

My name is Patrick McGee and I am the coordinator of the Aboriginal Disability Justice Campaign.

Earlier this year members of the ADJC met with Lorna Clarke who invited us to write to you.

Please find below a letter to you outlining our concerns about the imprisonment and indefinite detention of Indigenous Australians with a cognitive impairment

If you wish to discuss the contents please call me on 0448 610 105

Thanking you

Patrick McGee
ADJC Coordinator
0448 610 105
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7^th August 2013

The Hon Mr Mark Dreyfus

Federal Attorney-General

Parliament House

Canberra

Dear Mr Dreyfus,

I am writing to you as the coordinator of the Aboriginal Disability Justice Campaign (ADJC) to express our concern about the detention of people with a cognitive impairment (intellectual disability/ acquired bran injury) in prisons and psychiatric units across Australia as a result of mental impairment assessments resulting in unfit to plead findings. Three factors about this practice are particularly alarming:

1.    Across all states and territories of Australia this practice disproportionately affects Indigenous Australians with a cognitive impairment

2.    People who are detained under this regime are unconvicted and cannot be considered offenders

3.    Detention often becomes indefinite

The picture for Indigenous Australians with cognitive impairments such as intellectual disability and acquired brain injury, who commit crimes or are considered a risk to others, is complex.  Many Indigenous communities do not have a word for disability and do not discriminate against their members with disabilities: nonetheless, behaviours often associated with impairment, may mean that individuals become marginalised and isolated, often being teased mercilessly by other children from community when growing up.  The drinking culture in many Indigenous communities is also impacting heavily upon the numbers of children being born with foetal alcohol spectrum disorder (FASD) which often leads to intellectual disability, acquired brain injury or mental health issues.  A recent survey in Fitzroy Crossing estimated that over half of the children on community were being born with FASD.

Often individuals with cognitive impairments, particularly Indigenous Australians, are not in contact with disability services until their contact with the criminal justice system, which usually occurs as teenagers or young adults.  This often means that there has been no assessment and early intervention; they have often had limited access to education; they may be both victims and perpetrators of violence – particularly towards their family members who have often suffered harm at their hands whilst being the sole providers of support; and often exhibit entrenched and complex patterns of behaviour (resulting from a combination of impairment, cultural and historical responses to disability and a general lack of targeted behaviour intervention and support).  Many Indigenous Australians with cognitive impairments also live outside of the major metropolitan cities where the provision of ongoing and consistent support can be problematic.

The Aboriginal Disability Justice Campaign arose out of longstanding concerns held by volunteer guardians that unconvicted Indigenous Australians with cognitive impairments were being detained in maximum security prisons in the Northern Territory.  This practice is still occurring, as you read this letter, with appalling consequences.  Consequences for individuals in the Northern Territory include the use of mechanical and chemical restraint in the prison setting – one young Aboriginal man with a moderate intellectual disability has been belted into a restraint chair and injected with tranquilisers as a response to behaviour that breached security procedures in a maximum security prison twelve times since 2012.  The same young man was chemically restrained seventy seven times in 2012. 

Another area of significant concern is the weighting towards the protection of the community at the expense of the access to justice rights of individuals.  Whilst there are individuals who represent a serious risk of harm to others and engage in repeated criminal acts of a serious nature requiring detention in a secure setting, the majority of people who constitute this group engage in low level criminality such as stealing or assaults or nuisance crimes.  Often the severity of their sentences is disproportionate to the nature of the acts committed.  A current example of this occurs in Western Australia under the Mentally Impaired Accused Review Board Act which dispenses with the justice process once a person who has committed a crime and is found mentally impaired, often resulting in detention.  In 2010, under this Act, there were thirty three people detained of which 11 were Indigenous Australians with a cognitive impairment.  One third of the thirty three detainees were detained in a community setting but only one of those people was an Indigenous Australian.  Even in New South Wales, which has a comprehensive and sophisticated community based program responding to this issue, over half of the participants are Indigenous Australians with a cognitive impairment.

Whilst the Northern Territory provides the most extreme examples that the ADJC is concerned about we also believe the situation affecting largely Indigenous Australians with cognitive impairments in Queensland, Western Australia and South Australia is unacceptable. The following situation from Queensland recently provided to the ADJC, exemplifies some of our concerns:

George* is an Indigenous Australian with an intellectual disability living in Queensland.  George got into serious trouble with the law in 2001 for an indecent dealing with a person under the age of sixteen. George was charged and went to court where he was found unfit for trial and placed under the Mental Health Act on a limited community forensic order and allowed to come home.  Four years later George received a letter stating that the charges had been dropped.

A month after George received this letter he was charged with the rape of a child under the age of sixteen and detained in a rehabilitation unit to await his court case.  George was again found unfit to plead.  Two years later the charges were dropped and George was again allowed to return home.   

During his time at home George and the family attended appointments organised through the mental health system.  George and his family members were interviewed by mental health representatives who imposed a number of conditions including George not being allowed to have an advocate present at his interviews. Later it became clear that a report had been written by the mental health representatives and provided to the forensic system.  George and his family were then informed that he was to be detained in a mental health unit.  George and his family were never informed of the basis of this third period of detention and were refused access to his file. 

This third period of detention, in which he was detained in a number of different mental health units, lasted for almost three years after which he was then transferred to a medium security gaol.  After two more years George was transferred Forensic Disability Security Centre as a voluntary client.  George has now been detained there for eighteen months and has made numerous requests to be transferred closer to his family, which have been refused.  A lawyer hired by George’s family has been refused access to George’s file.

There are many disturbing elements to this story – the most disturbing is that the themes portrayed in this story are common across all states and territories of Australia for people with cognitive impairments, particularly for Indigenous Australians with cognitive impairments.  Lack of culturally relevant and appropriate early intervention, lack of treatment that provides significant benefit, responses by the mental health system for people with an intellectual disability who may not meet the criteria for entry into that system, breach of natural justice processes, detention on the basis of risk, lack of communication about the nature of the detention and equality before the law are all features with which the ADJC is familiar. 

The ADJC has recently completed a national analysis of why mental impairment legislation is leading to detention in prisons and psychiatric units for people with an intellectual disability / acquired brain injury for the national Working Group of Justice CEO’s titled, “No End in Sight: The Imprisonment and Indefinite Detention of Indigenous Australians with a Cognitive Impairment”.  Overall the ADJC report found:

·       Detention as a result of mental impairment assessments / unfit to plead findings are resulting in unconvicted individuals being detained in prisons, sometimes maximum security prisons and sometimes indefinitely

·       Limited data collection on people with an intellectual disability and acquired brain injury coming onto contact with the criminal justice system / how many Indigenous people with cognitive impairments are being detained

·       Disproportionate impact of detention practices on Indigenous Australians with an intellectual disability / acquired brain injury

·       Lack of collaboration between Justice and Disability

·       Lack of programs to divert people with cognitive impairments from detention in prisons

·       Lack of exit pathways for people with cognitive impairments out of prison

·       Lack of specific disability accommodation and support programs for Indigenous Australians with an intellectual disability or acquired brain injury – particularly outside major metropolitan areas

·       Lack of service options prioritising treatment of significant benefit

·       Weighting of community protection over access to justice rights for individuals

The ADJC Report made thirty-nine recommendations in its report and would like to bring the following specific recommendations, relevant to your office, to your attention:

1.    Indigenous people with cognitive impairment require a disability support person and access to either Legal Aid or an Aboriginal legal service lawyer during all police interviews, and at all stages of the court process

2.    All relevant mental health and forensic legislation should comply with the Convention on the Rights of Persons with Disabilities

3.    The Commonwealth should assist the states and territories to implement its agreement which it undertook with the United Nations Human Rights Council (response to first periodic review January 2011) that all states and territories would ensure compliance with the United Nations Standard Minimum Rules for the Treatment of Prisoners including addressing over-representation of Indigenous prisoners with a focus on diversion and reducing recidivism

4.    The purpose of detention of Indigenous people with cognitive impairment under mental impairment legislation should be to provide support and intervention that is of significant benefit to the person with disability

5.    A national standard for screening for cognitive impairment in prisons should be established

6.    Commonwealth leadership is required to address the situation and needs of Indigenous Australians with cognitive impairment, for example in developing model legislation and service system standards

7.    Provision for the needs of Indigenous Australians with a cognitive impairment who come into contact with the criminal justice system should be made in DisabilityCare Australia, the National Disability Strategy and the National Disability Agreement

8.    Data on Indigenous people with cognitive impairment at court and in prison in each jurisdiction is extremely poor. Data on the prevalence of cognitive impairment, crime and recidivism amongst Indigenous Australians should be collected to inform the development and implementation of legislation, policy and practice. Distinctions in data collection must be made between mental illness and cognitive impairment as well as recognition of the co-occurrence of mental illness and cognitive impairment

9.    It is vital that Indigenous understandings of ‘disability’ and ‘impairment’ inform all approaches to the development and implementation of policy and practice for Indigenous people with cognitive impairments in the criminal justice system

We ask that you consider these recommendations and would be pleased to meet with you to discuss them in detail. We can be contacted via

Patrick McGee

ADJC Coordinator

0448 610 105

Thank you for your time

Yours Sincerely

Patrick McGee

ADJC Coordinator

CC:    Lorna Clarke Federal AG’s Office

Jenny Macklin MP

          Amanda Rishworth MP

          Senator Jacinta Collins

          Julie Collins MP

Kate Connors NSW AG