Rachel Siewert (WA, Australian Greens) Share this | Link to 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.

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

I also rise to speak on the tabling of the committee report into the indefinite detention of people with cognitive and psychiatric impairment in Australia. This is the first major inquiry that has focused solely on the specific question of the indefinite detention of people with cognitive and psychiatric impairment. As Senator Siewert stated in her contribution, it arose out of a community affairs 2015 inquiry into the violence, abuse and neglect against people with disability in institutional and residential settings.

At its very core, this report provides us with an opportunity to consider and reflect upon the experiences of some of the most vulnerable people in our community. It has allowed us to look to the legislative environment, in which people with disabilities can be subject to misunderstanding and punitive detention. It has also allowed us to measure how our treatment of people with various and diverse cognitive and psychiatric impairments stacks up against Australia's human rights obligations.

The committee received 78 submissions and held six hearings across the country. Significantly, the committee also undertook a number of site visits to facilities and correctional facilities in Western Australia and the Northern Territory. The report is structured in two parts to adequately deal with the legislative provisions and processes that govern the pathway to indefinite detention in Australia. The indefinite imprisonment of Australian citizens is, and should always be, a last resort. Even where people have been declared mentally impaired or unfit to plead, it is vital that we have a system that strives to give all people a voice and representation in legal matters, because when we fail to give a voice to the most vulnerable people, we fail to build strong and fair communities.

A number of the committee recommendations reiterate the recommendations of the committee's 2015 inquiry into violence, abuse and neglect against people with disability in institutional and residential settings. The key matters relating to the indefinite detention of people with cognitive and psychiatric impairments identified in that report remain the same and need to be acted on. As evidence put to the committee explained so well and so clearly, access to justice for people with a disability is more than simply providing a wheelchair ramp into a court room—it is so much more than that. It is about fully supporting a person with disability to appropriately engage with all aspects of the criminal justice system.

I am pleased to say that among the committee's recommendations is the call for each state and territory to implement a disability justice plan. It also recommends that COAG develop and implement a disability screening strategy, including hearing assessments for all Australian jurisdictions. This screening strategy would apply to all adults and minors who engage with the criminal justice system. If this recommendation were adopted, it would mean that the strategy would be applied at multiple points through the criminal justice system, such as a person's first contact with police, courts, prisons and related facilities.

In closing, I would also like to indicate that I am very pleased that one of the recommendations from the committee is that the Joint Standing Committee on the National Disability Insurance Scheme look at an inquiry into the issue of eligibility and access to NDIS supports for people in prisons and in the criminal justice system more broadly.

I would also like to add my thanks to the secretariat, who work very hard on these inquires and who assist and support the committee so well. As Senator Siewert indicated, they have worked very, very hard over this last year, and, with their support, the committee has produced some very good reports. I look forward to the government response to this inquiry, and I also look forward, even though it has been a year coming, to the government's response into the committee's 2015 inquiry into violence, abuse and neglect against people with disability in institutional and residential settings. I say to senators that this is an important report and they should all seek to have a look at the report and the recommendations that are before them today. I commend the report to this place, and I seek leave to continue my remarks.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I think Senator Duniam wishes to speak.

Jonathon Duniam (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Sorry about that, Senator Brown. Yes, I will make a very brief contribution on this committee report. Senators Brown and Siewert have gone over the content of the committee report in some detail. As a Tasmanian and a relatively new senator my insight and experience into the matters this committee inquired into were very limited. So participating in the work of this particular inquiry on the community affairs committee was eye opening, to say the very least. Getting out to communities in Western Australia and the Northern Territory was incredibly informing.

I concur with Senator Siewert in thanking those who made submissions to the inquiry, which made for some pretty weighty reading, I have to say. There are some pretty disturbing things covered, when you read the impact that this has on individuals and their families and, in many cases, entire communities. What was heartening, though, was the degree of compassion shown by many in the community—those who are genuinely trying to make a difference and who fronted up to our committee hearings and suggested ways forward and things which governments across the country could be doing to make the lot and lives of those who were subject to indefinite detention better. I do want to thank those who provided submissions and those who came and gave us oral evidence. I think there was a general agreement among the committee membership as to what needed to be done. Everyone seemed to be pulling in the same direction in suggesting the need for legislative reform as well as early intervention—trying to head these problems off at the pass, rather than allowing things to get to the point where the easiest thing to do is, sadly and to put it crudely, to lock people up and throw away the key. That is effectively what we saw happening in many instances.

We did tour some excellent facilities, and again I would like to thank the governments of the Northern Territory and Western Australia for opening their doors and giving us a very full and frank insight into how they operate, the problems they face and the support they need. I would also like to acknowledge the committee members, particularly the chair Senator Siewert for heading up this inquiry with such passion, but also Senators Dodson and McCarthy who have particular interests in how this impacts on their communities. I would like to thank them very much and, as others have before me, thank the secretariat for their incredible work in bringing this report to a conclusion and other reports to come. With that, I seek leave to continue my remarks.

Leave granted.