Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change

52 Pages Posted: 9 Mar 2018

See all articles by Piers M. Gooding

Piers M. Gooding

Melbourne Social Equity Institute; University of Melbourne - Melbourne Law School

Anna Arstein-Kerslake

University of Melbourne - Law School

Louis Andrews

University of Melbourne - Law School

Bernadette M. McSherry

Melbourne Social Equity Institute; Melbourne Law School

Date Written: March 8, 2018

Abstract

Adverse consequences facing accused persons found unfit to stand trial in Australia have been well-publicised in recent years. Those found unfit may face indefinite detention in prison or other secure settings — potentially for longer than if they had been convicted and sentenced. Indigenous people with cognitive disabilities appear to face particular disadvantage in this area of criminal law. Reform initiatives have brought attention to the issue, as has the coming into force of the United Nations Convention on the Rights of Persons with Disabilities. Under the UNCRPD, unfitness to stand trial laws may currently violate the rights of persons with disabilities to equal recognition before the law, access to justice, and liberty and security of the person. Particular concerns have arisen from the call for equal recognition of legal capacity and the right to support to exercise legal capacity on an equal basis with others. This article will consider the demands of the UNCRPD on unfitness to stand trial laws in Australia in the broader context of disadvantage facing persons with cognitive disabilities in criminal law.

Keywords: K00, K39

JEL Classification: Australia, disabilities

Suggested Citation

Gooding, Piers Michael and Arstein-Kerslake, Anna and Andrews, Louis and McSherry, Bernadette M., Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change (March 8, 2018). Melbourne Univeristy Law Review, Vol. 40, No. 3, 2017, U of Melbourne Legal Studies Research Paper No. 766, Available at SSRN: https://ssrn.com/abstract=3136765

Piers Michael Gooding

Melbourne Social Equity Institute ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+6183440910 (Phone)

HOME PAGE: http://https://www.findanexpert.unimelb.edu.au/display/person26598

University of Melbourne - Melbourne Law School ( email )

185 Pelham Street
Melbourne, VIC 3010
Australia

Anna Arstein-Kerslake (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Louis Andrews

University of Melbourne - Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Bernadette M. McSherry

Melbourne Social Equity Institute ( email )

Parkville, Victoria 3010
Australia

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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