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

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