Responsibility: Australian, state and territory governments
Joint response:
Commonwealth, ACT, NSW, NT, QLD, TAS, WA: Accept in principle
SA and VIC: Subject to further consideration
Status: In progress
What has been achieved to date
The Commonwealth Attorney-General’s Department is currently undertaking desktop analysis on the laws, policies and programs operating across jurisdictions with respect to the indefinite detention of persons unfit to plead, stand trial or be found guilty by reason of cognitive or mental health impairment.
The desktop analysis will inform a review of the National Principles through the Standing Council of Attorneys-General (SCAG). The review has been included on the SCAG workplan for 2025.
Separately, work is underway in jurisdictions, including Western Australia and New South Wales, to improve arrangements and supports related to the National Principles for persons unfit to plead and forensic patients. Some jurisdictions have noted that further analysis is required to inform consideration of updates to the National Principles.
What the Disability Royal Commission said in the final report
The Australian Government, together with state and territory governments, should review the National Statement of Principles Relating to Persons Unfit to Plead or Not Guilty by Reason of Cognitive or Mental Health Impairment (National Principles) through the Standing Council of Attorneys-General.
The National Principles should be revised to include the following:
- Indefinite detention is unacceptable and laws providing for it should be repealed.
- Where an order for detention is made, there should be a maximum term of detention nominated beyond which the person cannot be detained (a ‘limiting term’).
- The limiting term should not exceed the court’s assessment of the sentence it would have imposed on the defendant had the person been found guilty of the offence in an ordinary trial of criminal proceedings.
- In hearings conducted to determine a person’s fitness to stand trial or to plead, the court must consider whether it can modify the trial process or ensure assistance is provided to facilitate the defendant’s understanding and effective participation in the proceedings. This includes any cultural or other trauma-informed supports a First Nations defendant may need to ensure the defendant can participate in a fair trial and understand the proceedings.
The Standing Council of Attorneys-General should agree to a timetable for implementation of reforms identified in the review of the National Principles.
The Commonwealth, states and territories should amend their legislation on fitness to stand trial to align with the revised National Principles.
The Australian Government, and state and territory governments, should build their capacity to provide step-down options, including medium and low secure and community-based accommodation options, for the placement of people in the forensic system to facilitate their progressive transition to less restrictive environments.
Australian Government Response July 2024
The Australian Government and state and territory governments have committed to review the National Principles, including aspects regarding indefinite detention and the availability of step-down accommodation. All governments recognise the rights of persons with cognitive or mental health impairment, noting these rights must be balanced against the need to prevent harm to others and uphold the rights of victims.
More recommendations
View progress on other recommendations made by the Royal Commission.