Indefinite detention of people with cognitive and psychiatric impairment in Australia

29 November 2016

© Commonwealth of Australia 2016
ISBN 978-1-76010-482-5

View the report as a single document - (PDF 2655KB)

View the report as separate downloadable parts:

Chapter 1 - Introduction (PDF 74KB)

Structure of the report
The inquiry

Chapter 2 - Forensic or criminal orders—statistics, legislation and reviews (PDF 490KB)

How do people end up in indefinite detention
Who are the people indefinitely detained?
Relevant legislation and reviews
International obligations
Reviews of forensic and criminal mental health legislation
Concluding comments

Chapter 3 - Sentencing and access to justice (PDF 230KB)

Current sentencing practice that leads to indefinite detention
Legal capacity and support to engage with the court system
Limiting terms
Screening and diagnostic tools
Review of forensic orders
Concluding committee view

Chapter 4 - The inappropriate use of prison for forensic patients (PDF 80KB)

Experience of prison for people with cognitive and psychiatric impairment
Therapeutic and behavioural treatment options in prison

Chapter 5 - Pathways to supported living within the community (PDF 635KB)

Failure to plan
The responsible department
Culturally appropriate care
An early intervention approach
Concluding committee view (Chapter 5)
Conclusions—forensic orders (Chapters 2–5)

Chapter 6 - Involuntary treatment orders—statistics, legislation and reviews (PDF 125KB)

The mental health pathway to indefinite detention
Declared mental health facilities
Involuntary mental health orders
Reviews of involuntary mental health order legislation
Committee view

Chapter 7 - Involuntary mental health orders (PDF 163KB)

Risk approach to controlled orders
Legal capacity and Advance Directives
Review mechanisms
Transition back to community

Chapter 8 - Disability, guardianship and aged-care detention (PDF 143KB)

Disability detention
Restrictive practice
Aged care
Concluding committee view

Chapter 9 - Recommendations (PDF 80KB)

The Australian Government's role
Committee recommendations arising from the abuse inquiry
New recommendations—Forensic orders
New recommendations—civil systems

APPENDIX 1 - Submissions and additional information received by the Committee (PDF 28KB)
APPENDIX 2 - Public hearings (PDF 21KB)
APPENDIX 3 - Summary of key recommendations from previous reports (PDF 100KB)

Community Affairs Committee
Australian Law Reform Commission
Australian Human Rights Commission
Productivity Commission

APPENDIX 4 - Summary of committee site visits related to the inquiry (PDF 883KB)

Description of the facility
Placements in the facility
Support provided in the DJC and pathways to the community
Progress so far
Complex Behaviour Unit
Transition to the Step-Down Cottages
Alice Springs Correctional Centre – G Block (John Bens Unit)
Transition to the Secure Care Facility

Committee Secretariat contact:

Committee Secretary
Senate Standing Committees on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600

Phone: +61 2 6277 3515

About this inquiry

The committee considered this inquiry in the 44th Parliament. The inquiry lapsed at the dissolution of the Senate on 9 May 2016.

On 13 September 2016, the Senate agreed to re-adopt the inquiry with a reporting date of 29 November 2016.

The committee has resolved not to call for new submissions but to rely on submissions received during the 44th Parliament. All correspondence and evidence previously received for this inquiry has been made available to the new committee.  This means that submissions already provided to the committee about this issue do not need to be re-submitted.

On 2 December 2015, the Senate referred the following matter to the Senate Community Affairs References Committee for inquiry and report:

  1. The indefinite detention of people with cognitive and psychiatric impairment in Australia, with particular reference to:
    1. the prevalence of imprisonment and indefinite detention of individuals with cognitive and psychiatric impairment within Australia;
    2. the experiences of individuals with cognitive and psychiatric impairment who are imprisoned or detained indefinitely;
    3. the differing needs of individuals with various types of cognitive and psychiatric impairments such as foetal alcohol syndrome, intellectual disability or acquired brain injury and mental health disorders;
    4. the impact of relevant Commonwealth, state and territory legislative and regulatory frameworks, including legislation enabling the detention of individuals who have been declared mentally-impaired or unfit to plead;
    5. compliance with Australia’s human rights obligations;
    6. the capacity of various Commonwealth, state and territory systems, including assessment and early intervention, appropriate accommodation, treatment evaluation, training and personnel and specialist support and programs;
    7. the interface between disability services, support systems, the courts and corrections systems, in relation to the management of cognitive and psychiatric impairment;
    8. access to justice for people with cognitive and psychiatric impairment, including the availability of assistance and advocacy support for defendants;
    9. the role and nature, accessibility and efficacy of programs that divert people with cognitive and psychiatric impairment from the criminal justice system;
    10. the availability of pathways out of the criminal justice system for individuals with cognitive and psychiatric impairment;
    11. accessibility and efficacy of treatment for people who are a risk of harm to others;
    12. the use and regulation of restrictive practices and their impact on individuals with cognitive and psychiatric impairment;
    13. the impact of the introduction and application of the National Disability Insurance Scheme, including the ability of individuals with cognitive and psychiatric impairment to receive support under the National Disability Insurance Scheme while in detention; and
    14. the prevalence and impact of indefinite detention of individuals with cognitive and psychiatric impairment from Aboriginal and Torres Strait Islander and culturally and linguistically diverse backgrounds, including the use of culturally appropriate responses.
  2. That for the purposes of this inquiry:
    1. indefinite detention includes all forms of secure accommodation of a person without a specific date of release; and
    2. this includes, but is not limited to, detention orders by a court, tribunal or under a disability or mental health act and detention orders that may be time limited but capable of extension by a court, tribunal or under a disability or mental health act prior to the end of the order.

Submissions were sought by 8 April 2016.  The reporting date is 29 November 2016.

Past Public Hearings

08 Nov 2016: Canberra
26 Oct 2016: Alice Springs
25 Oct 2016: Darwin