Law School research team represents vulnerable Indigenous clients in the UN

A team of La Trobe law academics and students has prepared two complaints to the United Nations Human Rights Committee on behalf of two indigenous men who have been incarcerated in prison indefinitely, even though they were found not guilty by reason of cognitive impairment.

Professor Patrick Keyzer is the Head of La Trobe Law School, and Chair of Law and Public Policy.

Dr Emma Henderson, Nicole Shackleton, Stephanie Falconer, Professor Patrick Keyzer and Patrick McGee recently prepared a United Nations Communication on behalf of Malcolm Morton. Malcolm, who suffers from a severe cognitive impairment, is frequently physically restrained by staff, strapped into a restraint chair sometimes for several hours, and medicated with sedatives until he is unconscious.

In the Communication, it is argued that this treatment, particularly considering Malcolm’s vulnerabilities, constitutes cruel and inhuman treatment or punishment. In addition, the issue of restraint chairs in order to control Malcolm’s behaviour creates a vicious cycle: the use of a restraint chair agitates him, making him more likely to exhibit concerning behaviour, and in turn more likely to be placed in a restraint chair again.

In addition to the use of restraint chairs, the Communication also alleged a number of other human rights violations in Malcolm Morton’s case. Malcolm has been subjected to extended periods of isolation in his cell, sometimes up to 23 hours a day. The Communication argued that Malcolm’s detention in a maximum-security prison, despite the fact that he has not been convicted of any crime, is discriminatory, inappropriate and indefinite, and therefore constitutes arbitrary detention. Malcolm’s Indigenous Australian minority rights to family, Community and Culture have also been violated by his incarceration at the Alice Springs Correctional Centre.

In the Communication, it is argued that Malcolm should be placed in supported community care where he can receive the care and treatment that he needs for his cognitive and physical disabilities. Within the punitive environment of maximum-security prison, Malcolm cannot receive appropriate rehabilitative treatment and it is therefore highly unlikely that he will ever be released, despite never having been convicted.

The Communication also argues that Malcolm should not be transferred to Darwin Correctional Centre, which is over 1500 kilometres away from his traditional country, community and family.

It is hoped that the Communication will provide a remedy to Malcolm for the human rights violations he has endured. Restraint chairs are unnecessary, degrading and cruel, and their use against prisoners, particularly those with disabilities, violates Australia’s human rights obligations.

It is hoped that this Communication will lead to a finding by the United Nations Human Rights Committee that the incarceration of persons with cognitive and mental impairments, who have not been found guilty of a crime, in maximum-security prison violates the International Covenant on Civil and Political Rights. Maximum-security prison should not be used lock-up vulnerable people with an ‘out-of-sight, out-of-mind’ mentality.

Our team is very eager to continue important advocacy in this area, and we look forward to the UN Human Rights Committee decision on this matter.

The UN Communication was developed as part of the Law School's Human Rights Advocacy Project, with input from members of Australian Lawyers For Human Rights, particularly Natalie Wade. Advice from Ian Freckelton QC, an adjunct professor of La Trobe Law School, is also gratefully acknowledged.

Professor Keyzer is leading research focusing on Supporting Indigenous people with cognitive impairment found unfit to plead and a member of  Transforming Human Societies Indigenous Peoples: Australian and International research cluster.

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