Australian Human Rights Commission Current issues and good practices in prison management, 16 November 2023 2.6 Fitness to be tried and indefinite detention 38. The Commission continues to be concerned by the lack of government action in repealing legislation and withdrawing policies and practices that can lead to the indefinite detention of unconvicted people, including children, with disability. Children with Foetal Alcohol Spectrum Disorders are at particular risk of being held in indefinite detention and are overrepresented in the juvenile justice system.60 Little progress has been made in addressing the indefinite detention of people with disability who are assessed as unfit to stand trial or not guilty by reason of mental impairment. Indefinite detention was raised as a serious concern in the Concluding Observations of the Committee on the Rights of Persons with Disability review of Australia in 2019.61 39. A person who is found to be unfit to plead can spend a longer time in detention than if they pleaded guilty and were sentenced to imprisonment for the offence.62 The Commission has previously reported on several cases where First Nations people who have been found unfit to plead have, as a result, been detained for a period longer than the maximum sentence if they had been found guilty.63 40. The Disability Royal Commission has stated that ‘[n]o forensic patient should be subjected to a period of detention beyond the period they would have been sentenced had they been found fit to plead and convicted of an offence.’64 41. The Disability Royal Commission also recommended that ‘legislation should enshrine the principle that prison is a place of last resort for people who have been found unfit to plead or not guilty by reason of cognitive or mental health impairment, and only to be used if all possible alternative options have been investigated’.65 In addition, the Disability Royal Commission noted that ‘[e]nding indefinite detention will require states and territories to provide step-down options for people in the forensic system to facilitate their progressive transition to less restrictive environments’.66 3 Youth justice system 42. The Commission holds grave concerns about the state of Australia’s youth justice systems and has repeatedly called ‘on all Australian governments to urgently address the national crisis in youth justice to prevent further harm to children in detention, and to reduce youth offending through effective systems of support’.67 The Australian National Preventive Mechanism has 10