Australian Human Rights Commission Submission to UN Committee Against Torture, 17 October 2014 disability among Aboriginal and Torres Strait Islander peoples and their overrepresentation in Australian prisons.40 62. The Commission called upon the states and territories to address access to justice for people with disabilities through the development of disability justice strategies.41 63. At a state level South Australia has developed a Disability Justice Plan.42 In the Australian Capital Territory, the Disability and Community Services Commissioner and the Human Rights and Discrimination Commissioner have proposed that the Australian Capital Territory Government adopt a Disability Justice Plan. In Tasmania, discussions have begun on the development of a Disability Justice Plan. 64. The Victorian Equal Opportunity and Human Rights Commission has also recently completed research which examines whether police services are delivered on equal footing for people with disabilities who are victims of crime, compared to those without disability. The research found that people with disabilities face significant and multifaceted barriers when it comes to reporting crime to police, and raises the need for better coordination and governance across and within services systems.43 65. The Commission is also concerned about cases of indefinite detention of people with a cognitive impairment. In some Australian jurisdictions, when people with cognitive impairment are found to be unfit to plead to criminal charges, they become subject to mental health legislation.44 The Commission has previously expressed serious concern about the cases of Marlon Noble and Christopher Leo.45 Both of these men have been held in indefinite detention. Marlon Noble, prior to his release was in prison for 10 years without being tried or convicted of any crime.46 66. The Australian Law Reform Commission (ALRC) has been conducting an inquiry into Equality, Capacity and Disability in Commonwealth Laws. A component of that inquiry was the release of a discussion paper 47 in which the ALRC highlights that the common law test of whether a person is fit to be tried48 has come under domestic and international scrutiny. Key criticisms of the test include: • • • 67. the test, by focusing on intellectual ability, generally sets too high a threshold for unfitness and is inconsistent with the modern trial process; the test is difficult to apply to defendants with mental illness because the criteria were not designed for them; a defendant may not be unfit to stand trial even where the court takes the view that he or she is not incapable of making decisions in his or her own interests. The ALRC proposed that the Crimes Act 1914 (Cth) be amended to provide that a person is unfit to stand trial if the person cannot: • understand the information relevant to the decisions that they will have to make in the course of the proceedings; 17