CRPD/C/22/D/18/2013
provided with the disability-related support and adjustments he required in order to exercise
his legal capacity and answer charges. This situation has persisted since September 2009.
3.6
The author’s right to liberty and security under article 14 has been violated because
his deprivation of liberty was arbitrarily based on his disability, was disproportionate to the
justifying factor7 and was also based on his Aboriginal origins. Aboriginal persons with
disabilities are significantly more likely to be subject to custodial supervision orders
because they are disproportionately exposed to poverty and homelessness, and have few or
no stable and supportive family and community ties. Pursuant to article 43ZA (2) of the
Northern Territory Criminal Code, the Court must not issue a custodial supervision order
committing a person to custody in prison unless it is satisfied that there is no practical
alternative given the circumstances of the person, including appropriate accommodation
and disability support services. Because the author is a poor Aboriginal homeless person
without a family, the Court decided that there was no practical alternative to committing
him to custody in prison. Moreover, for the whole period of custody at Alice Springs
Correctional Centre, the author was held with convicted persons. He has not been provided
with adequate housing in the community, as an alternative to custody in prison or at
Kwiyernpe House, which violates his right to live independently and to be included in the
community under article 19. His right to an adequate standard of living and social
protection under article 28 of the Convention has also been violated.
3.7
Articles 15, 19 and 26 of the Convention have been violated because the conditions
of his deprivation of liberty at Alice Springs Correctional Centre were harsh and
unreasonable. For the majority of his period in custody, the author was detained in
maximum security, fully isolated from others. Lack of access to the mental health,
habilitation and rehabilitation services and programmes he required due to his disability
caused him mental distress. His functional abilities deteriorated and he became more
dependent and institutionalized. Similarly, at Kwiyernpe House – which is a prison-like
secure care facility adjacent to the Correctional Centre – the conditions of deprivation of
liberty were harsh and unreasonable. The author was subjected to continuing control and
supervision, and was confined to the facility unless authorized, always under the
supervision and control of staff. He was subjected to involuntary treatment, which did not
support his inclusion and participation in the community. Kwiyernpe House has been
unable to recruit a sufficient number of appropriate staff for the development and
implementation of habilitation and rehabilitation programmes. Few such programmes were
developed for the author; those that were implemented were inadequate and were provided
on a compulsory rather than on a voluntary basis. Article 26 of the Convention has been
violated because the author has not been provided with adequate social skills, daily living
skills, communication skills or behaviour support programmes. He has been deprived of the
adequate mental health services necessary for the effective stabilization, treatment and
support of his psychotic condition and his recovery from it, which violates article 25 of the
Convention.
3.8
Articles 19 and 26 have also been violated because the author was held in custody
on a compulsory basis. He was and remains unable to choose his place of residence or with
whom to live on an equal basis with others. He continues to be deprived of the in-home,
residential and other community support services that are necessary for him to live, and he
cannot be included in the community, which reinforces his isolation and segregation from
the community.
State party’s observations on admissibility and the merits
4.1
On 20 October 2015, the State party submitted observations on admissibility and the
merits. It considers the author’s claims inadmissible because he has not exhausted all
available domestic remedies. To the extent that the Committee finds any of his allegations
to be admissible, they are without merit. In any event, the author is not subject to orders
under the Northern Territory Disability Services Act, but is in custody pursuant to the terms
of the Northern Territory Criminal Code. Hence, the terms of the Act are not relevant to his
communication.
7
4
Had he been convicted of those offences, he would have been sentenced to 12 months in prison.