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this sorry expose of the abject disgrace in our caring for those with mental health problems within the so-called justice system in this country is but another big tick on the australian governments’ shame board. and there are way too many ticks on that board already.

the wa gaol system has form in this area of locking up people who are judged to be unfit to plead. the last highlighted case was that of marlon noble, also in a wa gaol. i add a report on this issue below. it informs us of the horror for the people in the unfit category. no-limit-gaol is not the answer. what is sorely needed is the state of the art facilities whereby these individuals, mostly aboriginal, can be properly treated. such treatment requirements are just not possible in any gaol in this country. governments need to do so much more to adequately finance these psychiatric institutions.

marlon spent 10 long years in the wa gaols on charges that were never proven and were later withdrawn by the alleged victims. still he rotted in gaol until he was finally noticed and finally released on very strict parole conditions as if he was guilty. he was not! he needed help but he was trapped in an uncaring system that was totally incapable of doing anything for him. or for any other caught up in this horror.

whilst only the wa and nt numbers are given i can assure you that the other states and territories are similarly inflicted with their own criminal justice inertia in this tragedy of errors.

i watched and listened very carefully to the interview with warren mundine on lateline last night but whilst he professed empathy to those like marlon and rosie there seemed to be no clear message of what he could do to solve their, and others, sorry situations. to suggest that he would include it in some future talks with the wa government on justice issues just does not give me, and i presume others, the confidence that he could take positive action in this matter.

to suggest that he would raise the problem with pm abbott does little to excite me either. mundine’s plan to divert juvenile offenders from detention to employment is a great leap forward for justice and for lowering the numbers of aborigines being incarcerated in the juvenile centres and gaols. i applaud mundine in this action but i just hope that these are real employment opportunities and not a form of government subsidised wage schemes to shonky bosses for cheap labour for 6 months only.

i also applaud mundine’s stand on the proposed changes to the racial discrimination act but on viewing senator brandis on q and a the other evening i hold little hope that the abbott government’s push to make the changes can be stopped. the government needs to be able to vilify aborigines and torres strait islanders, asylum seekers (regardless of arrival method), those on welfare and any others they see the need to attack.

returning to the issue of rosie and the too many others forced to share her degrading experiences i argue that we need a royal commission to strongly investigate and make mandatory recommendations to the australian governments to forensically tear open the gaol systems and make them more humane for all inmates whilst coupling that push with an equally forensic investigation of our dismantled psychiatric care systems and remove those with mental health problems from the gaols, including all forensic patients, and place them in new and properly managed institutions where the emphasis is on care and not custodial punishment.

rosie, marlon and all the others trapped in this criminal dickensian system of neglect and ignorance deserve so much more.

fkj

ray jackson
president
indigenous social justice association

2013 Laureate
Prix de l’Homme de Francais
(French Human Rights Medal 2013)

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Rosie Ann Fulton: one of dozens of intellectually disabled Aboriginal people stuck in prison without conviction

Lateline
By John Stewart

Video: Jailed without conviction (Lateline)
Related Story: One man’s plight highlights need for overhaul.
Related Story: Man to be released after decade without trial

An investigation has revealed dozens of intellectually disabled Aboriginal people are being kept in prison indefinitely because of a lack of proper healthcare facilities.

The ABC’s Lateline program exposed the case of 23-year-old Rosie Anne Fulton, who has spent the past 18 months in a Kalgoorlie jail without a trial or conviction after she was charged with driving offences.

The magistrate in her case declared her unfit to plead because she is intellectually impaired – a victim of foetal alcohol syndrome – and has the mental capacity of a young child.

Her legal guardian, former police officer Ian McKinlay, says Ms Fulton ended up on a prison-based supervision order because there were no alternatives in the area at the time.

“At the moment this outcome is almost entirely reserved for Aboriginal, Indigenous Australians,” he said.

The Aboriginal Disability Justice Campaign says there are at least 30 Indigenous people in a similar situation around the country.

Western Australia’s Inspector of Custodial Services, Neil Morgan, says the state has no option but to incarcerate Ms Fulton as existing options are limited.

“One is a ‘declared place’, which was always intended to be for people like this. Unfortunately we still don’t have any declared places 15 years after the Act came into force,” he said.

“The second option is an authorised hospital, and that’s only for a person with a treatable mental illness.

“And the third option, which is almost the option of default, is that the person ends up in prison or in a juvenile detention centre.”

Mr Morgan concedes that most of those caught up in the system are Indigenous, although he says the law does not target Aboriginal people.

“The vast majority of people who’ve been caught under the Act and held under a custody order by reason of a cognitive impairment are in fact Aboriginal people, and a large number of them are Aboriginal men and women from remote and regional Western Australia.”

Meanwhile, Mr McKinlay has been trying to get Ms Fulton moved to Alice Springs to be closer to her family.

“She rings several times a week, sometimes twice a day, wanting to know when she is coming back to live in Alice Springs,” he said.

Last year, the Northern Territory health department agreed to move Ms Fulton to a secure care facility built next to the Alice Springs prison.

The centre was specifically designed to house people with intellectual disabilities and challenging behaviours.

Mr McKinlay says he received repeated assurances last year from the department that Ms Fulton would be moved there.

“They identified her as a prime candidate for secure care and they rejected any other form of service that guardians were advocating for pending the completion of this facility,” he said.

Rejected by health department due to ‘untenable’ risks

One set back may be that Mr McKinlay last month he received a new letter from the health department, this time rejecting Ms Fulton.

The letter states that she is not compatible with the male residents staying at the centre.

“From a clinical risk management perspective, the risks posed to Ms Fulton’s safety were she transferred to the facility are untenable,” the letter stated.

A statement issued from the NT health department said secure care facilities were not gender specific.

‘Trapped in bureaucratic nightmare’


Warren Mundine, the chairman of the Prime Minister’s Indigenous Advisory Council, talks to Lateline about Rosie Anne Fulton’s case. He also discusses his concerns with the Government’s plans to repeal section 18C of the Racial Discrimination Act.

“The Department of Health always holds the health and wellbeing of clients as paramount,” the statement said.

“Due to its responsibility to client privacy, the department is unable to provide comment on specific client circumstances, treatment or care.”

Mr McKinlay says he believes the rejection of Ms Fulton is a bid to save money.

“Well, it comes down to cost in the end. People in Rosie Anne’s category of need are virtually just waited out until they become prison-ready, default to the criminal justice system and imprisonment and jail,” he said.

Warren Mundine, the chairman of the Prime Minister’s Indigenous Advisory Council, says Ms Fulton is trapped in a bureaucratic nightmare.

“From day one she should never have been in a prison situation,” he told Lateline.

“She should have been in a health facility in a proper service area, and that’s going to be the challenge between the Federal, the West Australian and Northern Territory governments to fix this, because you just can’t have people indefinitely with mental health issues like that being trapped in a prison.”

Family want Rosie Anne moved closer to home

Mark O’Reilly, principal legal officer at the Central Australian Aboriginal Legal Aid Service,says Ms Fulton’s story is not unique.

“We’ve had situations where following the ordinary process someone might be looking at three months in prison. We’ve had people in jail for four to five years, just waiting for an outcome,” he said.

Rosie Anne Fulton Photo: Rosie Ann Fulton is being held in a Kalgoorlie jail without conviction because she was declared unfit to plead to driving offences. (Supplied)

In a widely publicised case, a mentally impaired West Australian man – Marlon Noble – spent 10 years behind bars without ever standing trial on child sex assault charges.

He was released in 2012 under strict conditions.

Two facilities for mentally impaired prisoners are currently being built by the West Australian Government, which says it is committed to building facilities for mentally impaired people who are accused and not convicted.

But Ms Fulton says she has no family in Perth and does not want to be moved there. She wishes to return to Alice Springs.

Will MacGregor runs a drug and alcohol rehabilitation service for young people in Alice Springs called Bush Mob.

He said there was a desperate need for more facilities for intellectually impaired Indigenous Australians, especially those suffering from foetal alcohol syndrome.

“Whether it’s secure care or supported accommodation options, the models are out there and a lot of people have been advocating the models for a lot of years,” he said.

“But again it comes back to a global financial crisis-type of budgets and maybe a hardening of hearts.”

Ms Fulton’s family want her moved closer to Alice Springs so they can help her.

“I want to talk to this girl when she come out, I’ll tell her you are a pretty girl,” aunt Ingrid Kanari said.

“You can have a better life, you can get work, settle down and work in the community. That’s what I want her to do.”

**********************************************************************************************************

Mental impairment no crime: lawyers

by: Stuart Rintoul
From: The Australian
May 31, 2012 12:00AM

LAWYERS will argue the Northern Territory and West Australian governments are acting
unconstitutionally by keeping mentally impaired people in jail when they have not been convicted
of a crime.

A test case, which seems destined for the High Court of Australia, is being prepared that will
centre on the treatment of mentally impaired Aboriginal men held in NT and WA jails for lack of
another option.

The action is being spearheaded by the Aboriginal Disability Justice Campaign, whose
co-ordinator Patrick McGee said yesterday there were at least nine people in NT jails and about
21 in WA who were being held indefinitely because there were no secure psychiatric facilities.

The legal action aims at striking down the right of states to hold mentally impaired people in jail
beyond the expiry of their court orders.

Mr McGee said mentally impaired people held in jails without conviction, many of them Aboriginal,
were easily overlooked. While all states were moving towards secure facilities, in the NT planned
eight-bed facilities “could be filled three times over”.
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Barrister Patrick Keyzer, director of the Centre for Law, Governance and Public Policy at Bond
University, who is involved in the proposed action, said it would be argued that section 43ZA of
the NT Criminal Code Amendments (Mental Impairment and Unfitness for Trial) Act was
unconstitutional.

Professor Keyzer said preventive detention regimes previously upheld by the High Court applied
to offenders with prior convictions, whereas those held in the NT under section 43ZA might not
have been convicted of a crime.

“We have certainly formed a view that the law is unconstitutional and we will be taking steps to
commence an action in court to get a declaration to demonstrate that,” he said.

He and lawyer Phillip French, director of the Australian Centre for Disability Law, spoke last night
at the Castan Centre for Human Rights Law in Melbourne, in a discussion titled, “How come
Marlon Noble spent almost 10 years in a West Australian prison without ever being convicted for
a crime?”

Mr Noble, 30, an intellectually impaired Aboriginal man, was charged in 2001 with sexually
assaulting two children in Carnarvon, 900km north of Perth, when he was 19. In March 2003 it
was decided he was “unfit to stand trial”, but he continued to be held under the Criminal Law
(Mentally Impaired Defendants) Act, even when doubts were expressed about his guilt.

Charges were withdrawn in 2010 and he was finally released in January this year, under strict
conditions Aboriginal social justice commissioner Mick Gooda likened to “a lifetime punishment . .
. for someone who was never been found guilty of anything”.

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