Australian Human Rights Commission Submission to the Committee on the Rights of Persons with Disabilities – 25 July 2019 indefinite detention of people with cognitive and psychiatric impairment in Australia. 64. The Commission reiterates its concern 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.55 For example, in Western Australia a person can be indefinitely detained in a custodial setting without trial if found unfit to stand trial.56 A person can spend a longer time in detention than if they pleaded guilty and were sentenced to imprisonment for the offence.57 There are no special procedures for children.58 Children with FASD are at particular risk of being held in indefinite detention and are overrepresented in the juvenile justice system.59 65. The Commission commends the voluntary commitment made by Australia following the Universal Periodic Review in 2015 to improve the way in which the criminal justice system treats people with mental and/or cognitive disability who are found unfit to plead or not guilty by reason of mental impairment.60 Whilst the Commission welcomes the establishment of a cross-jurisdictional working party on the matter, it is concerned that the draft National Statement of Principles Relating to Persons Unfit to Plead or Found Not Guilty By Reason of Cognitive or Mental Health Impairment (the National Statement) has not been released for public comment and people with disability and their representative organisations have not been consulted. Consideration of the National Statement by the Council for Attorneys-General has not progressed since June 2018.61 The Commission is also concerned that the National Statement is not being prepared as part of a wider framework to reform the law to remove the declarations of ‘unfitness to plead’ and ‘not guilty by reason of cognitive or mental health impairment’. 66. The Commission remains concerned that mental health laws, frameworks and policies in Australia permit the provision of mental health services to people with psychosocial disability and mental health conditions in ways that breach their human rights, including their right to liberty and security.62 In 2016–2017, nearly half (45.4%) of public health overnight separations with specialised care were patients with an involuntary mental health status.63 The Commission recommends that all mental health laws, frameworks and policies be examined and reformed to ensure alignment with the rights and obligations enshrined in the CRPD. Recommendation 29: The Australian Government implement the recommendations of the Senate Community Affairs References Committee 20