Unfitness to Stand Trial: The Indefinite Detention of Persons with Cognitive Disabilities in Australia and the United Nations Convention on the Rights of Persons with Disabilities

(2016) 10 Courts of Conscience 6–18.

Posted: 13 Dec 2018

See all articles by Piers M. Gooding

Piers M. Gooding

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

Sarah Mercer

Independent

Anna Arstein-Kerslake

University of Melbourne - Law School

Eileen Baldry

University of New South Wales (UNSW) - Faculty of Arts and Social Sciences

Date Written: November 21, 2016

Abstract

Unfitness to stand trial laws in Australia potentially help accused persons with cognitive disabilities avoid unfair trials – in particular by avoiding proceedings in which they cannot participate. Yet such laws can create a separate and lesser form of justice that undermines due process rights and substantive equality. Moreover, unlike those tried and convicted, persons deemed unfit to stand trial may be indefinitely detained, potentially for longer than would follow a typical trial. Unequal treatment of this kind appears to violate fundamental rights enshrined in domestic and international human rights law; namely, rights to equal recognition before the law, access to justice, and liberty and security of the person. This article briefly outlines these issues with particular consideration of Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’). It also outlines a program of formal support being developed for accused persons with cognitive disabilities in three Australian jurisdictions by researchers at the University of Melbourne and the University of New South Wales.

Keywords: Unfit to Plead, Unfit to Stand Trial, Human Rights, Justice, Aboriginal and Torres Strait Islander People

Suggested Citation

Gooding, Piers Michael and Mercer, Sarah and Arstein-Kerslake, Anna and Baldry, Eileen, Unfitness to Stand Trial: The Indefinite Detention of Persons with Cognitive Disabilities in Australia and the United Nations Convention on the Rights of Persons with Disabilities (November 21, 2016). (2016) 10 Courts of Conscience 6–18. , Available at SSRN: https://ssrn.com/abstract=3288278

Piers Michael Gooding (Contact Author)

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

Sarah Mercer

Independent ( email )

Anna Arstein-Kerslake

University of Melbourne - Law School ( email )

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

Eileen Baldry

University of New South Wales (UNSW) - Faculty of Arts and Social Sciences ( email )

Sydney
Australia

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