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By Dechlan Brennan

Legal and mental health groups have welcomed the proposed implementation of new legislation that will stop indefinite detention for people who are unfit to stand trial.

The Criminal Law (Mental Impairment) Bill 2022 was introduced into parliament at the start of December and is set to completely reform the Criminal Law (Mentally Impaired Accused) Act 1996.

The previous Act was heavily criticised by the WA Justice Association (WAJA) and the Western Australian Association for Mental Health (WAAMH); who noted that changing the act was the first election commitment made by Premier Mark McGowan in an event hosted by WAAMH in 2016.

Both groups, along with the Aboriginal Legal Service of Western Australia (ALSWA), have pressured the state government to reform legislation to address denying people natural justice and due process, and the compromising of public safety by creating barriers to people accessing public support.

The previous Act governed people who were unfit to stand trial or found not guilty on soundness of mind. In a submission to a senate inquiry in 2016, ALSWA strongly emphasised that "these individuals have not be found criminally responsible for the relevant offence(s)."

Changes to the law see people who fits these categories, limited to custody orders no longer than the term of imprisonment they would have received had they been found guilty of the offence.

Aboriginal and Torres Strait Islander people are vastly overrepresented in the justice system and any legislative change has a significant impact on First Nations people.

WAAMH chief executive Taryn Harvey told National Indigenous Times the individuals she has primarily supported are First Nations people with intellectual disabilities and says the changes to legislation are "fundamentally essential and will have a significant impact".

Previously, legislation saw people spend an indefinite period in custody. During times between their review, prisoners could potentially be held in a prison. A compounding effect of this was people did not get the mental health treatment they required, which in turn continued to make them unfit to stand trial. This detention became indefinite.

Experts told National Indigenous Times that another consequence of the previous legislation was that to avoid indefinite detention, people would plead guilty to crimes – even if there was a possibility that they would fall under the remit of not being fit to stand trial.

Some lawyers even worried that raising the issue of unfitness was inherently unsafe for the accused, with there being a real risk of them being held by the state indefinitely.

This release procedure was also rendered political. Ministers – specifically the Attorney General – made determinations about the release in the community of an accused person. This process inevitably ended up being a decision rooted in populism, something Ms Harvey says should no longer be the case.

"A valuable thing is the fact decisions will be made by courts and not ministers. The politicisation of these people experiences has been traumatising, stigmatising and discriminatory," she said.

WAJA hope that the new legislation will put an end to this. A spokesperson told National Indigenous Times: "If the new legislation and systems act as intended, indefinite detention will be abolished, and people with severe mental impairment will receive greater access to justice."

WA Attorney General John Quigley said in a statement that "the unfair and outdated mental impairment framework has long been a matter of immense importance to me" and the current act "has been subject to justifiable criticism since its inception".

Ms Harvey said: "There are some very specific things in the current Act that are inherent abuses of human rights."

"The Act has already been the focus of one complaint to the UN in terms of its breach of the rights of people with disability. The legislative currently before Parliament will resolve these issues."

Both Ms Harvey and WAJA note that this legislative change alone won't help reduce incarceration numbers.

WAJA told National Indigenous Times that while the legislation itself may be reformative, the WA government also "must commit to properly implementing it".

"This means adequately funding the relevant agencies, expanding accommodation in mental health facilities, and ensuring natural justice is upheld in practices and procedures—not just in the legislation," the group said.

Ms Harvey says the reality is bill is specific and won't solve all the issues around the vulnerability of people with impairments in the justice system.

"What this bill will stop, is Aboriginal people belong stuck in prison - indefinitely - without any kind of appeals process," she said.