WA law fails mentally impaired

October 14, 2016
Marlon Noble.

In 2001, 19-year-old Aboriginal man Marlon Noble was charged with sexually assaulting two children. Early court hearings deemed Noble unfit to stand trial due to cognitive impairment as a result of childhood meningitis. The court decided to hold Noble in custody.

Ten years later Noble remained in prison. There was no test of the evidence against him. Indeed, the charges against him were later dropped after the alleged victims and their family came forward and denied that the offences ever took place. Nonetheless, Noble continues to live under conditions imposed by the Mental Impaired Accused Review Board (MIARB) in a Conditional Release Order.

The UN Committee for the Rights of People with Disabilities last month condemned the WA Mentally Impaired Accused Act, again bringing the issue to the fore.

Green Left Weekly’s Janet Parker asked the CEO of Developmental Disability WA Taryn Harvey, a long-time disability rights advocate and advocate for Noble, how this injustice came about and why it has been able to persist.

* * *

What is the Mentally Impaired Accused Act?

The Criminal Law (Mentally Impaired Accused) Act, introduced in 1996 by the Richard Court government, is Western Australia’s law pertaining to those people who are accused of a crime but are found not guilty due to unsoundness of mind or not fit to stand trial.

Fitness to stand trial refers to a person’s ability to understand and participate in a trial. It is the question of fitness to stand trial that is the most pertinent to people with intellectual or cognitive disabilities, such as Marlon Noble.

The act does not include objects or principles that make its intentions clear, but ostensibly its purpose is to balance community safety with the need to provide a safeguard for defendants who are found unfit to stand trial.

However, the act has significant limitations and as a result it is now widely recognised as an instrument of injustice particularly with regard to its provision for indefinite custody orders.

These provisions are also known as “Governor’s Pleasure” provisions, reflecting the fact that decisions regarding a person’s release from custody rest with the governor, on the advice of the attorney-general of the day rather than by a court. This means it is a political rather than a judicial decision with no provisions for procedural fairness. This is inherently discriminatory and carries great risk of injustice.

There are a number of other significant criticisms of the act relating to natural justice and procedural fairness, and its compliance with the UN Convention on the Rights of People with Disabilities.

In recognition that prison is unlikely to be a suitable place of custody for a mentally impaired accused person, the act did allow for the establishment of “declared places” as an alternative to prison.

Unfortunately, no Western Australian government acted to declare a place until 2015 when the Colin Barnett government opened the Disability Justice Service in Perth for mentally impaired accused people with intellectual or cognitive disability. No declared place yet exists for people with a mental illness.

Can you explain how this has played out in the case of Marlon Noble?

Noble was found unfit to stand trial following allegations of child sex offences. A custody order was imposed and, as has been reported, he spent a decade in prison. During the time of Noble’s imprisonment, WA had no declared places as an alternative place of custody to prison.

The charges against Noble were ultimately dropped after the alleged victims and their family came forward and denied that the offences ever took place. But despite the charges being dropped Noble continues to live under conditions imposed by the MIARB in a conditional release order.

Should he breach any of these conditions there is an ongoing risk that he could be returned to custody at the behest of the governor, on advice from the attorney-general. Noble will continue to live under a conditional release order until he is released from the Act — again, at the whim of the governor on advice by the attorney-general. The attorney-general is advised by the MIARB, but ultimately the decision is a political one.

In Noble’s case, we believe that a special hearing to test the evidence against him would have prevented his case proceeding and he would not have spent a decade in custody.

I understand that this week you attended the Senate hearing into indefinite custody of people with disability held in Perth. Apart from Noble, are there many others impacted by the act and what has it meant for them?

There are several other people impacted by the act in similar ways to Noble. The numbers are reported annually in the Mental Impaired Accused Review Board Annual Report.

Another man I represent whose story has been told in the public arena is “Jason”. Jason spent 14 years in custody from the age of 14 after causing the death of his cousin in a car accident.

Jason was denied a leave of absence granted to him by the MIARB by the Department of Corrections because he was held in Acacia Prison, which refused to facilitate leaves of absence. Eventually Jason was sent to the new disability justice centre, which failed to support him effectively.

This contributed to him absconding from the centre and ultimately being returned to prison. Jason is currently on a conditional release order but, like Noble, his “freedom” is vulnerable to political whim — a political whim that has a particularly low threshold to risk.

There are many substantial criticisms to be made of this act. But the most inhumane aspect of this law is its application of indefinite custody and its failure to protect mentally impaired accused people in prison.

This law removes the personal agency of mentally impaired accused people. It removes all hope from their lives. It offers this permanent possibility of freedom that can be dashed at a moment’s notice. It actively contributes to the institutionalisation of people, which then of course makes it less likely that they will be deemed suitable for release.

The people who refuse to change this law do so out of a fundamentally discriminatory attitude towards people with impairments and flawed understandings of the nature of disability.

The UN Committee for the Rights of People with Disabilities condemned the WA act, but this does not oblige the government to amend it. What do you think the outcome will be? If more inaction follows, what can be done to ensure this grossly unjust act is overturned?

It’s hard to say what the outcome will be, but it seems increasingly likely that the government will fail to reform this act. We have absolutely no reason to believe that the current Attorney-General Michael Mischin, will be motivated to act as a result of the UN’s finding. He has already indicated in his report on the recent review that he would not move to limit custodial terms.

WA Labor has committed to reform the act within a year if elected to government, however Shadow Attorney-General John Quigley continues to reject calls for special hearing provisions to test the evidence. We will need to continue to apply pressure to ensure that a Labor government follows through on its commitment as a matter of urgency.

Disability activists and concerned community members can support the advocacy on this by joining with Developmental Disability WA and WA Association for Mental Health to be part of our advocacy.

Better yet, they can take direct action by contacting their local members, the premier and opposition leader to demand action. We need to demonstrate that Western Australian citizens expect parliament to ensure the equal protection of the rights in law of all people — that we expect principles of natural justice and procedural fairness to be at the heart of all legislation made by our parliament on our behalf.

Western Australian parliamentarians are solely responsible for this injustice, and they get away with not acting because they believe that nobody cares about what happens to mentally impaired accused people — people with intellectual disabilities, often Aboriginal people, hidden away.

Help us change this law by demonstrating that people do care, and that they expect fairness.

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