Send Rosie Anne home

For most of us gaol is a theoretical concept. It's somewhere you go if you commit a serious crime. And that's fair enough.

Neither of us have committed a crime, but in various roles during our lives we have visited places of detention. But for short times, and knowing we can always walk out. They are places where fear, despair and anger- a pretty potent cocktail as most prison staff would attest- are palpable.

One of the few positives about gaols - and there are only a few - is that the end point of the sentence can be predicted. Parole and good behaviour may shorten it, but there is a known end date.

For around thirty Australians who have not been convicted of a crime, gaol is their home. And the length of time they will spend there is not determined.

You might say this is not true- in Australia we don't lock up people who have not been found guilty of a crime. But Rosie Anne Fulton’s story, highlighted on the ABC's Lateline this week, shows that we do.

Rosie Anne has been in Kalgoorlie prison for the last eighteen months. She was charged with crimes related to a motor vehicle, but - due to her intellectual disability - the court found her unfit to plead. She was then sent to Kalgoorlie prison because no other suitable accommodation was available for her. Rosie Anne was born in Alice Springs. All she wants is to go home. But the WA and NT governments don't seem able to find a way to achieve this.

Marlon Noble was born in Carnarvon from the north of Western Australia. He was charged with offences that were never proven. In fact, a decade after the charges, they were clearly shown to have no substance. But Marlon spent most of that decade in prison, because he too was found unfit to plead.

"I don't like it in gaol.  I don't like it in there. Scary place. You got no families in there, no brothers or sisters to talk to. You're on your own. You're on your own,’ recalled Marlon, in this film <https://www.humanrights.gov.au/twentystories/video-presumed-guilty.html…;

We understand that there are around thirty other Australians - mainly Aboriginal and Torres Strait Islander Australians - in the same position as Rosie Anne and Marlon. They are largely, but not exclusively, in WA and the NT.

When we consulted on our recently launched Equal before the law: Towards disability justice strategies report <https://www.humanrights.gov.au/publications/equal-law&gt; we heard from lawyers of the dilemma that they face if they have a client who they know is unfit to plead. Do they tell the court, in which case they could be locked up like Rosie Anne and Marlon, or do they advise their client to plead guilty because at least they know that the sentence will be shorter.

As Commissioners at the Australian Human Rights Commission we could quote all of the international instruments which Australia has committed to and which say this should not occur –

• The Convention against Torture;
• The Convention on the Rights of Persons with Disabilities
• The Declaration on the Rights of Indigenous people.

But we won't. Because we don't need to. 

Most Australians would agree that locking people up when they have not been convicted of a crime is just unacceptable, and not the way we do things around here.

Most of us expect our State and Territory Governments to deal with these issues, and to find a way to resolve them so that people are not placed in this situation. That's why we called on the Governments of WA and the NT to find a way to return Rosie Anne to her country. We also called on them to conduct an audit of their prisons, and to advise how many other people are in the same situation as Marlon and Rosie Anne. And to quickly resolve those situations as well.

Mahatma Gandhi said "You can judge a society by how they treat their weakest members." If Australia was judged in this way on this issue we would be found sadly wanting.

Send Rosie Anne Home.

Mick Gooda is Australia's Aboriginal and Torres Strait Islander Social Justice Commissioner.

Graeme Innes is Australia's Disability Discrimination Commissioner.