Commonwealth dismisses Human Rights Commission findings that it breached human rights by allowing the men to be incarcerated in the Northern Territory

The government has breached human rights by allowing four Indigenous men with disabilities to be incarcerated in the Northern Territory despite not being found guilty of crimes, the Human Rights Commission (HRC) has found.

The Commonwealth dismissed the judgment by the HRC, which found multiple abuses of the human rights of the men, claiming the HRC had acted outside its jurisdiction by launching the inquiry in the first place.

The four men, known by the pseudonyms Mr KA, Mr KB, Mr KC and Mr KD, have all been the victims of physical abuse while held in prisons and have all been subject to “frequent physical, mechanical and chemical restraint”, according to the HRC’s findings. They were all found to have exhibited behaviours harmful to themselves and others as a result of the prison they had been kept in.

Mr KA in particular had been tied to a chair for up to three hours at a time, frequently sedated, and kept in isolation for about 16 hours each day and shackled when he was outside his cell, the HRC found.

The commission found the commonwealth had failed in its duty to work with the Northern Territory to provide accommodation and other support services for people with intellectual disabilities who are unfit to plead to criminal charges and in particular contravened the men’s rights to not to be arbitrarily detained, and their right as people with disabilities to live in the community with choices equal to others.

The HRC made seven recommendations including that the commonwealth engage with the NT government to take immediate steps to find alternative accommodation for the men, who are all still being held in prison or prison-like environments, and to bring the men under the services of the NDIS before its full rollout is due in 2016.

The commonwealth has outright rejected the findings, saying it does not have responsibility for the Northern Territory government and does not accept the government has contravened international human rights treaties which Australia is a signatory to.

A response from the Attorney General’s Department provided to the HRC acknowledges the “matters are complex and present particular challenges for state- and territory-based service system” but the commonwealth is not of the view the complaints amount to an act or practice by the commonwealth which the commission has the power to inquire into.

“In relation to Australia’s international human rights obligations, Australia, comprised of the commonwealth and the states and territories, is a party to a range of United Nations international human rights treaties and the commonwealth and the states and territories are responsible for compliance with Australia’s human rights obligations within their constitutional responsibilities,” the response says.

“It appears from the analysis in the report that the commission has conflated Australia, as a state party to a treaty, with the commonwealth government. It appears that the commission has then used this rationale to make adverse findings against the commonwealth, as somehow being responsible for the actions of state or territory governments, without due regard for the allocation of responsibilities under the constitution between the commonwealth and the states and territories. The commonwealth does not accept this analysis.”

The commission maintains the commonwealth has responsibility in the treatment of the men.

The Attorney General’s Department said as it did not accept the commission’s jurisdiction for the inquiry then it would not address the merits of the arguments raised in the report.

Mr KA and Mr KD are both still being held in Alice Springs Correctional Centre (ASCC), the maximum security prison in the Northern Territory, while Mr KB and Mr KC were last year moved to Kwiyernpe House, described in the commission’s report as “a high-security prison-like facility” which is adjacent to ASCC.

Mr KA, who moved in with his uncle as a child when his grandmother died and his mother was unable to care for him, has been diagnosed with epilepsy, a brain injury and an intellectual impairment. He stabbed his uncle to death when he was 16 but was found by a court to not be responsible for his actions.

Despite the finding, the 23-year-old has been held in ASCC for more than four years.

Mr KB, 33, has a chronic acquired brain injury and epilepsy, and was charged with unlawful aggravated assault in 2007 but found unfit to stand trial. A psychologist has noted Mr KB has a history of aggression, little insight into his condition and poor judgment regarding his actions and cannot live independently. He was placed in ASCC as a “short-term” care option.

He is suffering dementia and spent almost six years in ASCC before being transferred to Kwiyernpe House. If he had been found guilty of the original charge the likely penalty would have been 12 months’ imprisonment.

Mr KC, 24, has an intellectual impairment and possibly also autism spectrum disorder. Since he was 11 years old, aged and disability services within the Northern Territory Department of Health has been involved in his management.

In 2006 Mr KC threatened a carer with a shard of broken glass in the unit in which Mr KC was living and caused $5,000 worth of damage to the property, smashing car windows and throwing a coffee table.

He was charged with unlawful aggravated assault and unlawful damage to property, but like Mr KB, found unfit to stand trial. He was held in ASCC as a “short-term” solution to a lack of accommodation in 2008 and stayed there until last year when he was transferred to Kwiyernpe House. His charges also carried a 12-month imprisonment penalty.

The final complainant, Mr KD, is 50 years old and has a severe acquired brain injury, most likely as a result of petrol and alcohol abuse. In 1996 he was found not guilty of of murder, robbery, aggravated assault and attempted sexual intercourse without consent, on the grounds of mental impairment.

The court ordered that he be kept in strict custody at the ASCC until the administrator’s pleasure be known and 18 years later he remains in the prison.

The report, complete with the commonwealth’s original response, has been sent to the attorney general, George Brandis.