CCPR/C/132/D/2900/2016 Advance unedited version
43ZA of the NT Criminal Code, the court must not make a custodial supervision order
committing the accused person to custody in a prison unless it is satisfied that there is no
practicable alternative given the circumstances of the person. Nevertheless, since no
alternatives are available in the Northern Territory, the Supreme Court had no option other
than order detention in a maximum security correctional facility. The author alleges in this
respect that maximum security facilities are inappropriate for the rehabilitation of nonconvicted individuals who suffer from mental impairment and that legitimate ends could be
certainly achieved by less intrusive means. Furthermore, he asserts that his detention is
disproportionate because it should not be reviewed at regular intervals.6 He reiterates that the
Supreme Court confirmed in 2007 that the only mandatory review of his custodial
supervision order occurred on 10 September 2003 and that the legislation only provides for
the submission of reports on an annual basis.
3.3
In addition, the author submits that the circumstances of his detention amount to
torture or cruel, inhuman and degrading treatment and punishment and deprive him of his
right to be treated with humanity and inherent dignity contrary to articles 7 and 10 (1) of the
Covenant. Regarding the general inappropriateness of the prison setting in a maximum
security prison, he notes that between 1995 and 2004, he spent most of his time “locked
down” in isolation cells for up to 23 hours per day. He was punished by the correctional staff
by locating him in the hottest cell in summer and the coldest cell in winter, as retribution for
the actions which led to his detention. He claims that the impacts of extended periods of
isolation were exacerbated by his mental impairment and his vulnerable status as an
indigenous Australian.7 He reiterates that the inappropriate nature of the conditions of his
detention has been acknowledged by both the NT Supreme Court and the Australian Human
Rights Commission.
3.4
The author further alleges a violation of his rights under article 10 (3) in conjunction
with articles 2(1) and 26 of the Covenant because the State party has failed to provide him
with rehabilitative services. In this context, the author reiterates that his first and only
comprehensive behavioural support plan took effect in December 2013 and was eventually
abandoned. As there is no security care detention available in the Darwin area (his new place
of detention) and no transition plan has been taken to implement rehabilitative services
suitable to his needs, there is no indication that he will ever be able to transfer out of a
maximum security facility.8
3.5
Furthermore, the author contends that the State party violated his rights under article
27, read in conjunction with article 10 (1) of the Covenant since it failed to respect his right
to enjoy his own culture throughout the term of his detention. He submits that maintaining a
physical, spiritual, and emotional connection to his Country is essential for the mental, social
and emotional wellbeing of indigenous Australians. As a result of his transfer to Darwin
Correctional Centre, he has lost his particular status as a respected elder at Alice Springs
Correctional Centre allowing him to mentor his young fellow countrymen. His situation is
further worsened by the fact that he is unable to use his own language in the Darwin area.
3.6
Lastly, the author submits that his transfer to Darwin Correctional Centre amounts to
an arbitrary interference with his family life in violation of his rights under article 17 (1),
read in conjunction with article 23, of the Covenant, since he is no longer able to receive
visits from his family members and has no contact with his imprisoned countrymen, his
broader family, incarcerated at Alice Springs Correctional Centre.9
6
7
8
9
4
The author refers to General Comment no. 8 and the Committee’s decision in Tai Wairiki Rameka et
al. v. New Zealand (CCPR/C/79/D/1090/2002).
The author refers to the Committee’s finding of a violation in Brough v. Australia
(CCPR/C/86/D/1184/2003).
The author refers to article 109 of the UN Standard Minimum Rules for the Treatment of Prisoners
(Nelson Mandela Rules).
The author in his subsequent submissions seems to base his claims under article 17 and 23 of the
Covenant not only on the period he spent in the Darwin Correctional Centre but also in the Alice
Springs Correctional Centre.