Violations: CRPD art 5(1), CRPD art 5(2), CRPD art 12(2), CRPD art 12(3), CRPD art 13(1), CRPD art 14(1)(b), CRPD art 15
[Australia] is under an obligation to:
- Provide [Mr Doolan] with an effective remedy, including reimbursement of any legal costs incurred by him, together with compensation
- Publish the present Views [Doolan v Australia] and circulate them widely in accessible formats so that they are available to all sectors of the population.
Given “the far-ranging impact of the violations found in the present case,” the Committee reiterated the urgent recommendations to Australia in its Concluding Observations of 2013, adding the following non-repetition measures:
(i) Amend Part IIA of the Criminal Code of the Northern Territory and all equivalent or related federal and state legislation, in close consultation with persons with disabilities and their representative organisations, ensuring compliance with the principles of the Convention and with the Committee’s Guidelines on article 14 of the Convention;
(ii) Ensure without further delay that adequate support and accommodation measures are provided to persons with intellectual and psychosocial disabilities to enable them to exercise their legal capacity before the courts whenever necessary;
(iii) Allow the exercise of the right to live independently and be included in the community by taking steps to the maximum of its available resources to create community residences in order to replace any institutionalized settings with independent living support services;
(iv) Ensure that appropriate and regular training on the scope of the Convention and its Optional Protocol, including on the exercise of legal capacity and access to justice by, and avoid using high-security institutions for the confinement of persons with intellectual and psychosocial disabilities, is provided to staff of the Review Board, members of the Law Reform Commission and Parliament, judicial officers and staff involved in facilitating the work of the judiciary.
Manuway (Kerry) Doolan is an Aboriginal man from Mutitjulu, a small community near Uluru in the Northern Territory (NT) of Australia.1 He has moderate-to-severe intellectual disability and a history of impulsive and aggressive behaviour. He has been in foster care from the age of 5 and in receipt of public sector disability services from the age of 11 and requires intensive, full-time care.2
At the age of 19, Mr Doolan was ‘poor, homeless [and] without family’,3 living in temporary supported accommodation provided by the NT Government. One afternoon in August 2008, while suffering an apparent psychotic episode, including ‘very distressing’ hallucinations and delusions, he broke the loungeroom window and windows of a car and threatened his carer with a shard of glass.4
He was arrested, charged and remanded with convicted prisoners in a high-security section of Alice Springs Correctional Centre. The NT Supreme Court deemed him unfit to stand trial owing to his intellectual impairment. No part of the NT Criminal Code provides support to persons to enable them to exercise legal capacity in the trial process (as required under CRPD art. 12(3)).5 In October 2009, the Court placed Mr Doolan under a Custodial Supervision Order committing him to prison for a period equivalent to the likely sentence he would have received had he been tried and found guilty, namely a total of 12 months.
In fact, Mr Doolan remained in high-security prison for a total of 4 years and 9 months, during which time he spent ‘long periods’ in solitary confinement, was subject to violence from other prisoners6 and had,
‘very little or no access to mental health services necessary for the stabilisation of his mental health condition and his recovery, or to habilitation and rehabilitation programs necessary for him to develop his communication, social and living skills and behaviours. As a consequence, [his] mental health condition and social functioning deteriorated and he became more dependent and institutionalised.’7
In April 2013, Mr Doolan was transferred to Kwiyernpe House, a new, ‘high-security, prison-like facility’ adjacent to Alice Springs prison, built to provide ‘involuntary care and treatment of persons with disability’ under the terms of the NT Disability Services Act.8 He complained to the Australian Human Rights Commission in 2014 that conditions there were also ‘inappropriate’, raising complaints under both the International Covenant on Civil and Political Rights and the CRPD.9
Mr Doolan’s lay advocates and guardians made repeated representations and submissions, over many years, to all levels of the NT Government, calling for appropriate community-based support for Mr Doolan outside of custody.10 In September 2013, they submitted the present communication to the UN Committee in the Rights of Persons with Disabilities.
In September 2014, the President of the AHRC concluded her investigation into Mr Doolan’s complaint, finding violations of his rights under CRPD art 14(1), 19, 25, 26(1) and 28(1). She made 7 recommendations to both the Australian and NT Governments to ensure effective individual remedies and systemic reforms. She recommended the NT “take immediate steps” to house Mr Doolan in the “least restrictive” appropriate arrangements and “plan to progressively move [him] into the community along with necessary support services.” She found that detention should be a last resort for people with cognitive impairment who have not been convicted of an offence, and where it occurs, it should be “for the shortest appropriate period of time in the least restrictive appropriate environment” with “appropriate advice and support” for the person detained, while an adequate range of disability services and more appropriate forms of accommodation are made available, including “secure care facilities and supported community supervision.”
The Australian Government rejected the AHRC’s findings, claiming the Commission acted outside its jurisdiction in hearing the complaint. The NT Government, for its part, ‘failed to provide any response’ to the Australian Human Rights Commission.11
In January 2016, Mr Doolan was gradually moved out of Kwiyernpe House and into a community residence. From February 2017, he lived with another person requiring similar care, assisted by full-time disability support staff. In May 2017, the Court’s Supervision Order was varied from custodial to non-custodial, but provides for Mr Doolan’s involuntarily return to Kwiyernpe House ‘if his behaviour deteriorates’.12 He also remains subject to a Guardianship Order.
Mr Doolan alleged the NT Criminal Code, under which he was imprisoned, was discriminatory against people with disability (art. 5) because a person without a disability – even those who may represent a continuing danger to the community13 – cannot not be imprisoned indefinitely without having been convicted. His detention in Kwiyernpe House was also discriminatory, he alleged, because the Disability Services Act under which he was held only applies to people with disability.
He further alleged breaches of articles 5, 12, 13, 14, 15 and 19 because he was ‘not provided with the disability-related support and adjustments he required in order to exercise his legal capacity and answer charges’ and because he was imprisoned for 5 times longer than a person without a disability would have been in equivalent circumstances.14
Further breaches are alleged (art. 15, 19 & 26) arising from the involuntary treatment to which Mr Doolan was subjected that ‘did not support his inclusion and participation in the community’; and because his compulsory detention and lack of support services deprived him of the right to choose his place of residence and with whom he lives and be included in the community on an equal basis with others.
Responding to Mr Doolan’s communication, the Australian government maintained that the NT Criminal Code provides for ‘legitimate differential treatment’ – not of persons with disability per se, but of persons found ‘unfit to stand trial’.
Australia maintained that Mr Doolan posed an ongoing risk of violence and that there were no practical alternatives to keeping him in prison. It disagreed with the CRPD’s position that it is a human rights violation (art. 14) to detain someone with disabilities based on perceived danger to themselves or others.15
Australia conceded it had detained Mr Doolan with convicted prisoners, and that this was ‘undesirable’, but argued ‘exceptional circumstances’, such as on a temporary basis pending availability of a specialised facility such as in Kwiyernpe House.16 In Mr Doolan’s case, this temporary imprisonment with convicted prisoners lasted 4 years and 9 months.
When Australia ratified the International Covenant on Civil and Political Rights in 1980, it entered a reservation to article 10(2a) accepting its obligation to segregate accused and convicted prisoners as ‘an objective to be achieved progressively’. Thirty-five years passed before Australia’s submission to the CRPD concerning Doolan; Australia does not appear to have outlined its progress in realising this right in the NT or elsewhere.
As for making maximum state resources available for the progressive realisation of human rights (as per ICESCR art. 2(1)), the NT had the resources available to hold Mr Doolan for years in maximum security prison and, at the same time, build Kwiyernpe House, a second maximum security detention facility next door ‘built in part to [accommodate Mr Doolan] specifically’. On this question of available resources, Australia referred the Committee to its ‘significant expenditure on both health and disability support services.’17
Australia further conceded it had subjected Mr Doolan to involuntary treatment (‘medication on an emergency basis’), but referred the Committee to its declaration when it ratified the CRPD in 2008, interpreting the Convention as allowing compulsory treatment ‘where such treatment is necessary, as a last resort and subject to safeguards.’
Australia disputed Mr Doolan’s claims of long periods of involuntary solitary confinement and inadequate disability support services, and outlined the kinds of services available in both the prison and in Kwiyernpe House.
The Committee found that the ‘accommodation and supports [Mr Doolan requires] are fully capable of being provided in a community setting’ and that Australia had not demonstrated that ‘at the material time it was pursuing any plan, to the maximum extent of its available resources, to address the multiple and aggravated social disadvantage of [Mr Doolan] as disabled and an Aboriginal person.’18
Disability or impairment must never be grounds for denying legal capacity or equal recognition before the law. The right to ‘equal benefit of the law’ (art. 5) means states party to the CRPD must eliminate barriers to gaining access to all of the protections of the law and the benefits of equal access to the law and justice.’ Australia ‘did not analyse ... the support and accommodation [Mr Doolan] required to exercise his legal capacity, and did not take any measures in that regard,’ in violation of articles 12(2), 12(3) and 13(1).
The Committee found Part IIA of the NT Criminal Code is discriminatory, resulting in violation of Mr Doolan’s rights under articles 5(1) and 5(2).
All persons with disabilities, and especially persons with intellectual and psychosocial disabilities, are entitled to liberty. The Committee found Mr Doolan was detained as a consequence of his disability, in violation of article 14(1)(b). Compelling him to live in Kwiyernpe House for over 3 years on account of his disability amounted to a further violation of article 5.
The Committee accepted Mr Doolan’s claims regarding solitary confinement, involuntary treatment, violence from other prisoners, denial of habilitation, rehabilitation, mental health and support services, and the fact of his indefinite detention in maximum security prison with convicted prisoners for over 9 years without having any indication as to the duration of his detention was degrading, in violation of article 15.
Note that while the UN Committee did not uphold Mr Doolan’s allegations under articles 19 (independent living & community), 25 (health), 26 (habilitation and rehabilitation) or 28 (standard of living), the Australian Human Rights Commission did.
The Australian Government is obliged to advise the CRPD in writing by 29 February 2020 of any action taken in response to the Committee’s recommendations.
In 2015, while Doolan v Australia was before the CRPD, Australia’s Department of Social Services funded a 2-year interdisciplinary research project undertaken at the University of Melbourne and University of New South Wales called Unfit to Plead. It sought to ‘develop practical and legal options to help ensure that accused persons with cognitive disabilities can participate in criminal proceedings brought against them on an equal basis with others.’ The project assessed the impact of embedding disability support workers within community legal services and found that,
‘a relatively modest support intervention at a crucial point in criminal justice proceedings can improve the timeliness and quality of outcomes for accused persons with cognitive disabilities, and potentially provide significant cost savings to government.’19
In 2016, a committee of Australian Senators undertook an inquiry into the issues raised by Noble v Australia, making a series of recommendations to all Australian governments to prevent the indefinite detention of people with disability.
1. Suzanne Smith, 'Mentally impaired held in NT jails without conviction,’ ABC News (26 June 2012).
2. KA, KB, KC and KD v Commonwealth of Australia  AusHRC 80, para. 138-140.
3. UN Committee on the Rights of Persons with Disabilities, Doolan v Australia, UN Doc. CRPD/C/22/D/18/2013 (30 August 2019), para. 3.6.
4. KA, KB, KC and KD v Commonwealth of Australia  AusHRC 80, para. 143.
5. Doolan v Australia, para. 5.3.
6. Doolan v Australia, para. 5.8.
7. Doolan v Australia, para. 2.5.
8. Bridie Jabour, ‘Jailing four not-guilty Indigenous men with disabilities 'breached human rights',’ The Guardian (3 December 2014).
9. KA, KB, KC and KD v Commonwealth of Australia  AusHRC 80.
10. Doolan v Australia, para. 5.4.
11. Doolan v Australia, para. 5.2.
12. Doolan v Australia, para. 6.3.
13. Doolan v Australia, para. 5.7.
14. Doolan v Australia, para. 3.4-3.5.
15. Doolan v Australia, para. 4.3 and footnote 10.
16. Doolan v Australia, para. 4.16 and 4.18.
17. Doolan v Australia, para. 4.21 and 4.23.
18. Doolan v Australia, para. 5.9 and 5.13.
19. Piers Gooding, Bernadette McSherry & Anna Arstein-Kerslake, Unfit to Plead: Imprisoned Without Conviction, University of Melbourne (2017).
Read the CRPD’s Guidelines on the right to liberty and security of persons with disabilities (pages 22-27) 2017