This submission responds to the 2015 Senate Inquiry into the indefinite detention of people with cognitive and psychiatric impairment in Australia.

The submission focuses on people with cognitive impairment, however, many of its recommendations are also relevant to people with psychiatric impairment within the criminal justice system.

The submission identifies that Aboriginal and Torres Straight Islanders, people with a dual diagnosis (of intellectual disability and mental health problems), women and young adults are particularly vulnerable cohorts.

Based on our extensive experience working in Victoria and the Northern Territory (particularly Central Australia), along with the evidence of what works, we recommend:

  1. Only detaining people with cognitive and psychiatric impairment as absolute last resort
  2. Amending the Northern Territory Mental Health and Related Services Act to differentiate between and accommodate for the needs of people with cognitive impairment and psychiatric impairment.
  3. Amending Part IIA of the Northern Territory Criminal Code Act to include regular reviews of a person’s term and introduce limiting terms rather than indefinite supervision orders. The Code should also be reviewed to determine whether people found unfit to plead should be dealt with outside of the criminal justice system.
  4. Developing specialist assessment tools for cognitive impairment at all stages of the justice system, which cater for the needs of Aboriginal people.
  5. Ensuring more specialist options within prisons are available for sentenced people with cognitive disability.
  6. Ensuring all relevant staff in the justice system receive adequate support and training to enhance their awareness and understanding of cognitive impairment.
  7. Providing alternative rehabilitative responses in the community for people found unfit to plead due to cognitive impairment.
  8. Establishing more secure facilities for unsentenced, high risk individuals (outside of the prison environment) which support their rehabilitation and transition into the community.
  9. Reforming service systems to ensure early identification and intervention through holistic, integrated and culturally appropriate community-based services.
  10. Developing and implementing a framework for planning and resourcing therapeutic programs and services targeting people with cognitive impairment throughout the corrections system.
  11. Ensuring that all people with cognitive impairments can access specialised, problem solving programs at courts. This should be underpinned by consistent screening referral processes. Specialised problem-solving courts, such as the ARC List, should be adopted in the Northern Territory.
  12. Ensuring people with a cognitive impairment have access to an Independent Third Person at key stages of their engagement with the justice system.
  13. Developing an evidence base to determine the effectiveness of pre-plea and presentence diversion for people with cognitive impairment in the justice system.
  14. Developing a staged approach to release from custody for people with cognitive and psychiatric impairment, involving day release to build connections to community and links with support services.
  15. Preventing homelessness among people with cognitive disabilities exiting prison by developing a cooperative approach with housing services with a specific focus on the needs of people with cognitive or psychiatric impairment, and/or complex needs.

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