More than 1,200 people with a mental impairment are being indefinitely detained in Australia, some for decades, without having been convicted of a criminal offence.
A Guardian Australia analysis has found every state and territory is detaining people using a variety of court orders that, in some instances, can result in a person being detained or subject to strict conditions for life.
People detained indefinitely without conviction are most commonly those who are found unfit to plead after being charged with a criminal offence, or who are found not guilty because of a mental impairment.
Information about the number and circumstances of detainees is difficult to establish because no national records are kept, and Australia has failed to meet its obligations under an international torture convention to provide for unannounced visits to places of detention.
Ben Buckland, a senior adviser at the Association for the Prevention of Torture, says that leaves the public in the dark.
“The scariest thing is imagining what we don’t know,” Buckland says.
“Because already the things we do know are … pretty concerning.”
The Victorian ombudsman, Deborah Glass, who described a 2018 case involving the imprisonment of a woman with a significant developmental disorder as the saddest investigation she had ever done, told Guardian Australia that while there was no doubt that some with developmental disorders could be a danger to themselves and others, “to put somebody who was maybe a danger to others into a prison environment, that is … fundamentally not therapeutic, will be counterproductive.
“They will come out of that worse than they were before. And that is counterproductive to us as a society, because we’re going to be paying for yet more supports, we’re going to be paying to fix yet more damage.”
‘Inherently unfair’
Guardian Australia put questions about indefinite detention to each state and territory government. The ACT is the only jurisdiction that does not allow for indefinite detention.
Some declined to answer, referring instead to annual reports which contained data that was several months old.
Orders that allow indefinite detention in some jurisdictions can be removed or challenged at any time, making it hard to be precise about numbers at any given point.
But combining annual report data with the current data given by each jurisdiction this year shows that 1,215 people were detained or controlled under a court order.
For the purpose of the analysis, every individual subject to an order that allowed for detention was included, although some may be living in the community under strict conditions.
New South Wales detained 635 people in the 2021-22 financial year, compared with 324 in Queensland and 130 in Victoria.
One individual in Queensland had been subject to a forensic order for 42 years. Queensland Health and Queensland Corrective Services declined to comment on the case, but the majority of those in the state subject to forensic orders are not in detention.
The Northern Territory has 13 people with mental impairments indefinitely detained using custodial supervision orders, most of whom are in the Darwin Correctional Centre. One person has been on an order for more than 30 years.
“The criminal offences for which these supervised persons were originally charged include homicide and related offences, aggravated assault, arson and indecent dealings with a child,” a spokesperson for the NT’s justice department says.
In Western Australia, the law allows anyone considered to be “mentally impaired” to be held in custody indefinitely, at the discretion of the attorney general.
There were 53 mentally impaired prisoners in the state as of 8 April, including 10 in prison, 26 detained in an authorised hospital, and 14 in the community subject to a conditional release order.
Before winning office, the premier, Mark McGowan, promised to end the indefinite detention of those considered mentally impaired. But more than six years later, no legislation has materialised. Individuals can spend longer in detention than they would have if found guilty of the crime they were charged with, rather than not guilty or being unfit to plead.
Taryn Harvey, the chief executive of the Western Australian Association of Mental Health, says the government needed to give “clear direction” on what its new laws would do and when legislation would be introduced.
“It’s so inherently unfair and it’s so at odds with how our justice system works.”
Federal support required
Australia’s detention regime is set to come under international scrutiny in coming months, with the UN subcommittee on the prevention of torture due to visit in October.
Under an international protocol ratified more than four years ago, an independent monitor is supposed to have oversight of all people in detention.
But Australia has repeatedly delayed implementing the changes to its detention regime required under the Optional Protocol to the Convention Against Torture, known as Opcat.
Signatories to Opcat must establish regular preventive visits to places of detention by independent bodies known as National Preventive Mechanisms (NPM).
The Victorian and NSW attorneys general wrote jointly to the former Morrison government last year saying they would be unable to meet the requirements of the Opcat without federal support. Queensland is understood to have made similar representations.
A Victorian government spokesperson said that while it had “robust oversight regimes in place to ensure that people in detention are protected against torture and other cruel, inhumane, or degrading treatment or punishment”, Opcat imposed “additional obligations” that the former Coalition government had “refused” to fund adequately.
The federal attorney general, Mark Dreyfus, confirmed that Australia had received an extension for full compliance with Opcat until January.
His office said the commonwealth’s NPM was “fully functioning and is conducting Opcat compliant inspections”. But a spokesperson said only one state had delivered a fully operational NPM as of July.
They did not comment on whether the federal government would provide more funding to meet the obligations by January, saying only it would “work with states and territories”.
Buckland says the protocol has had a strong deterrent effect in other countries where it has been implemented.
“The government needs to get over this hurdle of deciding how it will work and who is going to fund it,” he says. “The federal government signed up to this, so they may also have to pony up and help the states to pay for it.”
