The Commission comments that
Four Aboriginal men with intellectual and cognitive disabilities were held for years in a maximum security prison in the Northern Territory despite being found unfit to stand trial or not guilty by reason of insanity. If two of these men had been found guilty they would have received a sentence of 12 months. Instead, they were imprisoned for four and a half years and six years respectively. The Australian Human Rights Commission conducted an inquiry into whether this involved any breach of human rights by Commonwealth.
The Commission found that there was a failure by the Commonwealth to work with the Northern Territory to provide accommodation and other support services, other than accommodation in a maximum security prison, for people with intellectual disabilities who are unfit to plead to criminal charges.
There was an obligation at international law on the Commonwealth to act. This obligation was consistent with domestic obligations undertaken by the Commonwealth to the Northern Territory. The need for action was well known and had been well known for many years. Specific administrative measures to take this action were provided for by legislation.
The failure to act was inconsistent with or contrary to the complainants’ rights under articles 9(1) and 10(1) of the International Covenant on Civil and Political Rights and articles 14(1), 19, 25, 26(1) and 28(1) of the Convention on the Rights of Persons with Disabilities. In particular, it was contrary to their right not to be arbitrarily detained, and their right as people with disabilities to live in the community with choices equal to others.
In the case of Mr KA and Mr KD, the failure to act was also inconsistent with article 7 of the ICCPR and article 15 of the CRPD which prohibit inhuman or degrading treatment. Mr KA was subject to regular restraint including being strapped to a chair and the use of shackles when outside his cell, seclusion and use of tranquilizers. Mr KD was subject to regular seclusion and use of tranquilizers. The prison environment in which they continue to be detained is inappropriate for people with their disabilities.The consequent recommendations are that -
The Commonwealth provide a copy of the Commission’s findings to the Northern Territory and seek assurances from the Northern Territory that it will take immediate steps to identify alternative accommodation arrangements for each of the complainants so that Mr KA and Mr KD are no longer detained in a prison and Mr KB and Mr KC are progressively moved out of held detention. These arrangements should be the least restrictive arrangements appropriate to each individual and should include a plan to progressively move each of them into the community along with necessary support services.
The Commonwealth cooperate with the Northern Territory to establish an appropriate range of facilities in the Northern Territory so that people with cognitive impairment who are subject to a custodial supervision order can be accommodated in places other than prisons. This range of facilities should include secure care facilities and supported community supervision. The number of places available in these facilities should be sufficient to cater for the number of people who are anticipated to make use of them.
The Commonwealth cooperate with the Northern Territory to ensure that people with cognitive impairment who have not been convicted of an offence are detained as a measure of last resort, for the shortest appropriate period of time, and in the least restrictive appropriate environment.
The Commonwealth cooperate with the Northern Territory to ensure that when a person with a cognitive impairment is detained under a custodial supervision order, a plan is put in place to move that person into progressively less restrictive environments and eventually out of detention.
The Commonwealth cooperate with the Northern Territory to develop model service system standards for the detention of people with a cognitive impairment.
The Commonwealth cooperate with the Northern Territory to ensure that when a person with a cognitive impairment is detained he or she is provided with appropriate advice and support, including the appointment of a guardian or advocate.The Commission notes that
The Commonwealth did not directly respond to these recommendations, on the basis that it considered that the Commission did not have jurisdiction to inquire into the complaints. As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth), this is the only statement the Commission will be making on this matter.