CCPR/C/132/D/2900/2016 Advance unedited version
annual report should be submitted to the NT Supreme Court and the court may, if it considers
it appropriate, conduct a review. The supervised person may also request a review. However,
should the court not order a review, the author does not have the opportunity to contest the
conclusions set out in the report. The author underlines that the annual reports filed with the
NT Supreme Court since 2003 did not result in any improvements in the conditions of his
detention.
2.8
In 2013, an independent guardian was appointed for the author.3 The first and only
comprehensive behavioural support plan to facilitate his rehabilitation took effect on 23
December 2013. He successfully progressed through to the final stage and commenced
residing fulltime at the Alice Springs secure care facility in mid-2014. However, owing to
some incidents, the author was returned to full-time incarceration at Alice Springs
Correctional Centre in January 2015 and his support plan had been abandoned.
2.9
On an unspecified date, the author filed a complaint with the Australian Human Rights
Commission. In August 2014, the Human Rights Commission issued a report in which it
found that the author had been arbitrarily detained and the conditions of his detention also
run counter to the Covenant and the Convention of the Rights of Persons with Disabilities
(CRPD). Accordingly, it recommended the authorities to take measures to remedy the
violations found. Subsequently, the Commonwealth of Australia took note of the Human
Rights Commission’s report but attributed sole responsibility for the violations to the
Northern Territory government.
2.10 The author remained at Alice Springs Correctional Centre until November 2015. He
was then transferred to Darwin Correctional Centre, another facility of maximum security
where he continued to be detained at the time of the submission of his complaint.
2.11 The author submits that he sought all administrative remedies available to him and
that there is no effective judicial remedy to be exhausted at the domestic level. Even if it were
possible to bring an action before the High Court of Australia, there would not be a reasonable
prospect of success.4 In this regard, the author notes that if he applied for judicial review of
his deprivation of liberty, the application would be struck out with costs ordered against him.
Furthermore, the High Court of Australia would have no power to provide remedies that
would address the violations claimed, as there is no legislation, Bill of Rights or constitutional
provision which could be relied on to remedy the violations set out in the complaint. In
addition, since he was only appointed an independent guardian in 2013, he was unable to
seek domestic remedies prior to this date.
Complaint
3.1
The author claims that his rights under articles 2 (1), 7, 9 (1) and (4), 10 (1) and (3),
17(1), 23(1), 26 and 27 Covenant have been violated by the State party as a result of his
arbitrary detention lasting for an indefinite term in a maximum security prison facility where
his needs required by his mental disability cannot be accommodated.
3.2
In particular, the author asserts that his continued detention has been arbitrary in
breach of article 9 of the Covenant5 as it is based on his mental impairment rather than on a
criminal conviction. He explains that the impugned laws apply only to persons with mental
impairment and provide for their indefinite detention although they were found not guilty of
the charges against them. Accordingly, this legislative regime is discriminatory. In addition,
the author claims that the authorities have failed to provide suitable accommodation in a
secure care facility adequate to his disabilities. In this respect, he submits that pursuant to s
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4
5
pursuant to s 43 ZA and ZG, namely the fixing of a term for the order and the mandatory review
thereof shortly before its expiration were not applicable in the author’s case.
The State party informs that the author has both a public guardian and a community guardian
appointed under the Adult Guardianship Act 1988.
The author submits two opinions of professors of law confirming the futility of a remedy before the
High Court of Australia. These opinions indicate that the legislation authorizing the author’s detention
is clear and applicable to him; the jurisprudence of the High Court indicated that his detention would
be upheld as constitutionally valid; there are no other effective legal remedies available,
The author also relies on article 14 of the CRPD.
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