Laws that are meant to protect persons with disabilities in the criminal justice system can lead to detention without an end date. 

This is particularly so for Aboriginal and Torres Strait Islander People with Disabilities according to researchers at the University of Melbourne and University of New South Wales.

 Researchers have collaborated with the Victorian Aboriginal Legal Service and the North Australian Aboriginal Justice Agency to deal with the support needs of accused persons with mental disabilities.

 The Unfitness to Plead and Indefinite Detention of Persons with Cognitive Impairments project is about providing support to people with disabilities in the criminal justice system to prevent their indefinite detention.

 The researchers recently gave evidence to a Senate Committee Inquiry into the Indefinite Detention of People with Cognitive Impairment in Darwin last week.

 The research team, which includes a number of Aboriginal and Torres Strait Islander researchers and advocates, have just concluded a six-month trial of supports for accused persons with disabilities when they reach the court system.

 Professor Kerry Arabena, a chief investigator on the project, says Indigenous people with disabilities are clearly over-represented in the criminal justice system.

“It’s clear we need to change to law to prevent indefinite detention, but we also need to make sure the supports are available on the ground. People with disabilities who come into contact with the criminal justice system need to be connected to appropriate support,” she said.

 “This is especially the case for young people with disabilities in contact with the criminal justice system. We should be intervening as early as possible in a child’s life to identify and address disabilities, and support their parents to care for their child as much as possible.

 It is a travesty that in 2016 we can have over representation in the criminal justice system because we haven¹t prevented or addressed early health, developmental vulnerabilities or intergenerational trauma in the first 2 years of life.  We do not need prison solutions for health issues.” Professor Arabena said.

 In many places, the right support is unavailable. Jody Barney, one of the National Advisory Panel members for the project is a leading Aboriginal Disability consultant. She has assisted Aboriginal and Torres Strait Islander people with disabilities in the criminal justice system all over Australia.

 “The Unfitness to Plead Project tries to make sure Aboriginal and Torres Strait Islander people with disabilities not only have the right communication access and supports but the physical presence of an advocate and interpreter to assist their understanding of the justice system." 

 "While the project doesn't focus on young people, we have identified the unmet needs of the young people with disabilities during the course of the project. The work needs to be extended to include youth and reduce the recidivism of young Aboriginal and Torres Strait Islander in detention.” she said.

 Another member of the advisory panel, Ms Elizabeth McEntyre, a criminal justice social worker has conducted research with Aboriginal communities in NSW and NT on Aboriginal people with mental and cognitive disabilities in the criminal justice system.

 ”Better education and information are needed for police, teachers, lawyers, magistrates, health, corrections, disability and community service providers regarding understanding and working with Aboriginal and Torres Strait Islander women and men with cognitive impairment and complex support needs, ” she said.

 The researchers call for a suite of reforms to ensure accused persons with disabilities get the support they need to access justice on an equal basis with others.

 Mr Lenny Clarke, a First Persons Disability Network representative and one of the project’s advisors says that people with disabilities are often subject to prejudice, discrimination and exclusion.

"Most people don’t understand disability and or don’t feel affected – for them it is a case of  'That’s other peoples and families problems.’ “

 The project team recommends that it should be mandatory for all sections of Law enforcement agencies and administrators of the judicial system to participate in extensive training and awareness programs on disability.