Children with disability and youth justice (f) 353. Children with disability are overrepresented in the juvenile justice system, particularly children with intellectual disabilities or mental health issues. In NSW, 83.3% of children in the juvenile justice system met the criteria for at least one psychological disorder—six times the prevalence rate children in the general population.352 Disability advocacy organisations have argued that the high incarceration rate is due to the failures in mental health, child protection, housing, disability and community service systems to provide appropriate assessment and supports for children with disability. 353 354. The Commission is concerned that in some jurisdictions declarations of unfitness to stand trial may lead to the indefinite detention of unconvicted people with disability, including children with disability. 354 Under Western Australia’s Criminal Law (Mentally Impaired Accused) Act 1996 a person can be indefinitely detained without trial if found unfit to stand trial.355 A person can spend a longer time in detention than if they pleaded guilty and were sentenced to imprisonment for the offence. There are no special procedures for children.356 355. In a submission to the Senate Community Affairs Committee in 2016, the Commission raised concerns with laws that can impose detention on people found to be unfit to stand trial. It recommended that there be effective limits on the period of detention that can be imposed, and requirements for periodic review of the need for detention.357 356. Children with FASD are at particular risk of being held in indefinite detention and are overrepresented in the juvenile justice system.358 A recent Australian study of FASD in Australia’s juvenile detention population reports that: There is increasing concern regarding the forensic implications of FASD in Australia, as the neuropsychological sequelae can affect all aspects of the legal proceedings, including the person understanding the expectations and providing credible evidence in forensic interviews, fitness to plead, capacity to stand trial and the process of sentencing. 359 Recommendation 53: Australian Governments ensure that laws that allow for children to be detained following a finding of unfitness to stand trial, or a verdict of not guilty by reason of mental impairment: • impose effective limits on the total period of detention • require regular reviews of the need for detention 63