Northern Territory


Indefinite Incarceration Of Aboriginal People With A Cognitive Impairment

Across Australia there are a range of accommodation and treatment options used by states and territories to manage the issue of people with a cognitive impairment (Intellectual Disability, Acquired Brain Injury, Mental Illness and Dementia) who commit crimes or assessed as a risk to the community.

People with cognitive impairments who are subject to mental impairment provisions through state based criminal code legislation are generally placed onto supervision or custody orders and are held in indefinite detention in either jails or psychiatric units.  In the Northern Territory, Queensland and Western Australia, Aboriginal people with cognitive impairments who are subject to mental impairments findings and held on indefinite detention are more than likely to be incarcerated in jails. In the Northern Territory they are placed into maximum-security prisons.

The example which has the most impact on the human rights of people with cognitive impairments, and the current focus of the Aboriginal Disability Justice Campaign (ADJC) is the Northern Territory.  In the Northern Territory, Aboriginal people with a cognitive impairment who are found mentally impaired under Part IIA of the NT Criminal Code are incarcerated in maximum-security jails in both Darwin and Alice Springs.

The ADJC is aware of similar situations affecting people with a cognitive impairment generally and Aboriginal people with a cognitive impairment specifically in both Queensland and Western Australia.  It is believed through anecdotal accounts that whilst non-Aboriginal people with a cognitive impairment subject to mental impairment provisions generally are indefinitely detained in psychiatric units,  Aboriginal people with a cognitive impairment subject to mental impairment provisions are indefinitely detained in prisons.  However for both Aboriginal people and non-Aboriginal people with a cognitive impairment, detention is usually indefinite.

TheNorthern Territory Government made significant advances in mainstream disability services during the nineties. However, this effort has now fallen short of coping with the emerging numbers of young Aboriginal adults with severe cognitive impairment, (often foetal alcohol-related), associated risk behaviour sand complex needs.

Changes to the Northern Territory Criminal Code in 2002 now allow people with complex needs and offending behaviours or who are assessed as a risk to the community to be incarcerated and held indefinitely in maximum-security jails. This extreme response is unique to the Northern Territory and far exceeds the level of security required the manage the risk posed by individuals from this group of people.(2)

The specific concern of the ADJC is the current incarceration of nine Aboriginal people in the Northern Territory (four in the Alice Springs Correctional Centre and five in the Berrimah). The ADJC is aware of significant numbers of other Aboriginal people with a cognitive impairment that are awaiting legal outcomes that may also result in indefinite incarceration.

This concern is shared by the Northern AustralianAboriginal Justice Association (NAAJA) which urges the NT Government to put resources into properly caring for people with mental illness and disabilities.  NAAJA Chairperson, Mr Norman George said “Australia is a signatory to theConvention on the Rights of Persons with Disabilities, which guarantees important rights, such as the right to live in the community. At the moment, people are being kept in jail only because the Government is failing to resource community-based options.”

The ADJC believes the incarceration of Aboriginal people with cognitive impairment in maximum-security jails constitutes a breach of both international and domestic human rights legislation to which Australia isa signatory.  Particular rights from the Convention on the Rights of Persons with Disabilities include:

Article 5: Equality and Non-discrimination
Article 12: Equal Recognition Before the Law
Article 13: Access to Justice    
Article 14: Liberty and Security of the Person
Article 26: Habilitation and Rehabilitation

Similar concern has been expressed by the Northern Territory Supreme Court Justices, who are left with no option but to make and continue indefinite prison-based supervision orders. NAAJA notes the 2009statement by the Chief Justice raising the issue of defence practitioners advising clients with mental health impairments against pursuing a mental impairment or unfitness to stand trial defense especially for relatively minor matters.  Mr Norman George again commented, “Because the facilities in the community are inadequate, if our clients are found not guilty because of their mental impairment, they might end up spending the rest of their lives in jail.”

The Courts in the Northern Territory have been led to believe by the Department of Health that prison is a temporary solution and appropriate facilities are being developed and worthwhile in-prison ‘treatment that is of significant benefit’ is occurring.

The ADJC holds a view that indefinite incarceration of Aboriginal people with a cognitive impairment is continuing in the Northern Territory and that there are no appropriate community based options with legislation support that balance the right of the community to live in safety with the rights of the person to treatment that is of significant benefit in place in the Northern Territory. 

In summary the Aboriginal Disability Justice Campaign states:

  • That the indefinite incarceration of Aboriginal and Torres Strait Islanders in maximum-security jails is morally and ethically unjustifiable
  • That Aboriginal people with a cognitive impairment are being unfairly incarcerated in maximum-security jails
  • That the Northern Territory is not providing a range of custodial and non-custodial options for Aboriginal people with a cognitive impairment who have offending histories
  • There is no treatment of significant benefit for Aboriginal people with a cognitive impairment who are being incarcerated in maximum-security jails.


The National Disability Strategy and the Indefinite Incarceration of Aboriginal People with a Cognitive Impairment

In February 2011, all states and territories of Australia signed the National Disability Strategy (NDS) that specifically identified rights protection, justice and legislation as one of its six areas of policy action.  As well, the NDS recognises the special needs of the Aboriginal and Torres Strait Islanders who have a disability. 

The ADJC would like to highlight the following elements from the National Disability Strategy that specific relate to the issue of the indefinite incarceration of Aboriginal people with a cognitive impairment:

  • That the outcome fromSection 2 “Rights Protection, Justice and Legislation” is that people with disability have their rights promoted, upheld and protected
  • That Policy Direction 2 (Remove societal barriers preventing people with disability from participating as equal citizens), Policy Direction 3 (People with disability have access to justice) and Policy Direction 5(More effective responses from the criminal justice system to people with disability who have complex needs or heightened vulnerabilities) all directly relate to the issue of the indefinite incarceration of Aboriginal people subject to mental impairment provisions in maximum-security jails in the Northern Territory
  • That a current 2010 commitment is that “court diversion programs for people with disability in state and territory magistrate’s courts are designed to address the mental health or disability needs of defendants and their offending behaviour. The program includes disability coordinators in magistrate’s courts and specialised magistrate’s courts”.  The implementation of this program in the Northern Territory would immediately assist in the resolution to the emerging tsunami of Aboriginal people with cognitive impairments and complex needs that are being indefinitely incarcerated in maximum security jails.
  • Areas for future action include 2.4 (Review restrictive legislation and practices from a human rights perspective), 2.7 (Provide greater support for people with disability with heightened vulnerabilities to participate in legal processes on an equal basis with others), 2.9 (Support people with disability with heightened vulnerabilities in any contacts with the criminal justice system, with an emphasis on early identification, diversion and support), 2.10 (Ensure that people with disability leaving custodial facilities have improved access to support in order to reduce recidivism.  This may include income and accommodation support and education, pre-employment, training and employment services) and 2.11(Support independent advocacy to protect the rights of people with disability).  Areas For Future Action 2.4, 2.7, 2.9 and 2.10 are of vital significance for Aboriginal people with a cognitive impairment who are currently indefinitely incarcerated in maximum-security jails or are in danger of indefinite incarceration in maximum-security jails.


Changes to the NT Criminal Code in 2002 which allows Aboriginal people with a cognitive impairment to be indefinitely incarcerated in maximum-security jail

CRIMINAL CODE ACT – Part IIA Mental impairment and unfitness to be tried provisions. The NT Criminal Code Act was amended in June 2002 to include Part IIA Mental impairment and unfitness to be tried provisions. This much needed change allowed the Courts greater flexibility in dealing with accused persons suffering from mental impairment. The court however must not make a custodial supervision order committing the accused person to custody unless it has received a certificate from the chief executive officer of the Department of Health and Community Services stating that facilities or services are available in that place for the custody, care or treatment of the person.  Therefore the chief executive officer Department of Health and Families, can by certifying there is no alternate place of custody with the facilities or services needed, and by asserting that there will be proper services in prison, little alternative but to place the accused person on a prison-based order. Essentially it is the advice of the CEO Health, and the failure to provide alternatives ensures the accused person ends up in prison. When such orders are reviewed similar advice can result in this form of custody continuing indefinitely. The Court, without evidence to the contrary, proceeds on the assumption that advice provided by the CEO, Health is without prejudice and the risk assessment tools on which the advice is predicated are sound. There is no recognition of the conflict of interest that may, or be perceives to exist in the Court being reliant on advice by a party having a strong fiscal interest in favour of prison based supervision. Concerns in respect to Part IIA of the Criminal Code are:

    1. The lack of independent assessment in determining the risk the accused person poses and of the type of facility or services the accused person requires.
    2. The lack of ‘best interest’ representation for an accused person under adult guardianship.
    3. The indefinite nature detention in maximum-security jails.

Theoretically, a person can be kept in prison for the remainder of their life, for supervision purposes only regardless of the initiating offence and the actual level of risk represented.  Consequently many legal practitioners are boycotting the Part IIA provisions, and entering guilty pleas when their client’s fitness to plead maybe doubt. There has been no response to appeals to rectify the flaws in Part IIA or to make any informed effort to provide a complimentary legislative framework allowing for restrictive practices in non-prison settings. …young Aboriginal adults with severe cognitive impairment, (often foetal alcohol-related)



FADSis a generic term that covers Foetal Alcohol Syndrome and Foetal Alcohol Effects and exists in all communities where alcohol is consumed. It is conservatively estimated to affect the lives of 1% of the population in Western countries. “Individuals affected by prenatal exposure to alcohol are likely tobe over-represented in the following population groups: children at risk of child abuse and neglect and their parents; children in the foster care system (estimated to be as high as 85%); individuals experiencing poor mental health; children who do not complete compulsory education; the homeless and the chronically unemployed. Too many children and young people living with undetected/undiagnosed FASD will have early entry into the criminal justice system and without intervention, will become our ‘revolving door’ prisoners.” (Miers et al, 2008).

In Canada it has been estimated that “Just caring for the people now alive with foetal alcohol syndrome and foetal alcohol effects will cost us at least $600 billion, which is the approximate size of the national debt…For FAS people inside the justice system, it’s costing us $5 billion a year. It’s the biggest health issue in the country, and if we’re going to save the taxpayer, we’ve got to tackle it.”(McLean, 2000). 

No Australian government has yet made any concerted effort to respond to the issue of FASD. This is in part because of the limited amount of Australian research data on FASD; Indigenous children are highly over-represented, constituting65.2% of all cases reported…. Also the Northern Territory, with 1% of theAustralian population, but a relatively higher proportion of Indigenous people, was over-represented in our study, with 12% of reported FAS cases.” (Elliott et al, 2007). A growing Indigenous population, with increased alcohol consumption amongst young females, suggests the NT is likely to experience increased numbers of FAS babies born to both Indigenous and non-Indigenous families each year. The social and financial impact on the NT will correspondingly increase.