CRPD/C/22/D/17/2013
in and of itself amount to a violation of article 15. The author has not complained about any
particular episode involving other inmates, nor has he indicated what, if anything, about the
mixing with mainstream inmates has resulted in treatment amounting to a violation of
article 15.
4.19 As to the alleged conditions at the secure care facility, constant supervision and the
presence of an escort when leaving the facility do not amount to harsh conditions of
detention. Evidence from independent psychologists and other relevant professionals
suggests that constant supervision and care is necessary to support the author and keep
himself and others safe. Moreover, the author’s detention at the secure care facility is not
arbitrary as it is reasonable, necessary and proportionate given the circumstances, and
represents a least restrictive environment for accommodating the author, a person with
complex needs who is not otherwise able to be supported by his family or in the community.
The State party contests the allegation that the author is not being provided with adequate
mental health services. Certain aspects of the author’s treatment and care may from time to
time be administered involuntarily, such as medication on an emergency basis during
manifestations of behaviours of concern but, in accordance with its interpretive declaration
to the Convention lodged upon ratification on 17 July 2008, the State party considers that
this is reasonable, necessary and proportionate and is used only as a last resort. Therefore,
the fact that the author is sometimes subjected to involuntary treatment does not amount to
harsh and unreasonable conditions of detention.
4.20 Finally, the length of time in custody does not of itself amount to a violation of
article 15. If or when it becomes feasible for the author to be cared for in a less restrictive
setting, the legislation requires that the Court put those arrangements in place. Therefore,
the period of time the author has spent in custody has not been disproportionate.
4.21 The author has failed to demonstrate how article 19 is relevant to his claims, as he is
a person subject to a custodial supervision order who was subsequently housed in a new,
purpose-built facility and who was in receipt of a very high-level of disability-related care
and support services. The State party also does not accept that it is not doing everything it
can, to the maximum extent of its available resources, to make progress in the realization of
the rights set out in article 19 and refers to the significant expenditure made by Australia on
both health and disability support services. 14
4.22 The State party does not accept the author’s claim under article 26 that he received
no habilitation or rehabilitation services, or that the services he received were inadequate.
The services available to him at Alice Springs Correctional Centre included regular medical
and psychological assessments, support from disability support workers, occupational
therapy, community access and recreational visits. Residents at the secure care facility are
encouraged to develop or maintain daily living skills, such as caring for themselves,
preparing meals and cooking, cleaning and other household tasks, to enable them to live as
independently as possible, in anticipation that they may be able to leave the facility and live
in a less restrictive environment. There are a range of recreational activities provided,
including access to sports equipment and musical instruments, to ensure that persons living
there do not become passive, dependent or institutionalized. The State party also does not
accept the assertion that the secure care facility has been unable to recruit appropriate staff.
4.23 Finally, article 28 does not require States to provide housing to all on demand. Even
though the author has expressed a desire to be accommodated in his community, this does
not mean that his accommodation at the secure care facility results in his rights under article
28 being breached. Accommodation in the community would result in a reduction in the
level and quality of care, supervision and disability-related services provided to him, as
well as in a significant and unacceptable increase in the risk of harm to the author, to those
caring for him and to the wider community. While the previous accommodation at Alice
Springs Correctional Centre was not ideal, the author has, nonetheless, at all times been
provided with an adequate level of disability-related services and support. Soon after the
Northern Territory government became aware of the author’s situation and his
14
8
During 2012 and 2013, there was significant expenditure – which also represented a notable increase
on previous expenditure – on disability-related services. Australian Institute of Health and Welfare,
Australia’s Health 2012 (Canberra, 2012), p. 473.