Cases violating CRPD art 5(2) (potential) (5)

Note that committees can record actual or potential violations.

effective legal protection against discrimination

CRPD art 5(2)

Doolan v Australia (CRPD, 2019)

Remedy's assessment: Unremedied

A young man from central Australia was arrested for offences committed while suffering psychosis. He was deemed unfit to stand trial due to his intellectual impairment, but the court ordered that he remain in custody. He was held indefinitely in maximum security prison for over 7 years – far longer than any sentence that might have been imposed had he been tried and convicted – and he was, at times, held in solitary confinement, subjected to involuntary treatment and given ‘very limited or no access’ to mental health and disability services or rehabilitation programs.

The Committee found that Australia did not provide Mr Doolan with the accommodation and supports he needed to stand trial, to exercise legal capacity and access justice (art. 12(2), 12(3) & 13(1). Mr Doolan was deprived of his right to a fair trial and of the equal protection and benefit of the law (art. 5(1) & (2). Mr Doolan’s indefinite detention was arbitrary and his treatment, including solitary confinement, involuntary treatment, violence from other prisoners, denial of habilitation, rehabilitation, mental health and support services, was degrading, in violation of article 15.

Read more on Doolan v Australia.

Given v Australia (CRPD, 2018)

Remedy's assessment: Unremedied

A voter with cerebral palsy was denied assistive technology that was available to blind voters in order to cast an independent, secret vote. Obliged instead to vote with the aid of another person, she was denied her choice of assistant. Ms Given was denied her right to a secret ballot and the right to fully participate in political and public life on an equal basis with others.

Read more on Given v Australia.

JH v Australia (CRPD, 2018)

Remedy's assessment: Unremedied

A Deaf woman summoned to perform jury duty was then turned away because she requires an Auslan interpreter to communicate with hearing jurors and others in the courtroom. The Committee found this denial of a ‘reasonable accommodation’ constituted discrimination (CRPD art 5(2) & 5(3)) and a violation of her freedom of expression (art 21(b) & 21(e)). The Committee agreed that reasonable accommodation would be to allow Auslan interpreters to take an oath of confidentiality.

Read more on JH v Australia.

Leo v Australia (CRPD, 2019)

Remedy's assessment: Unremedied

A young man was arrested for an assault committed while he was apparently suffering psychosis. He was deemed unfit to stand trial due to his intellectual impairment, but the court ordered that he remain in custody. He was held indefinitely in maximum security prison for over 9 years – far longer than any sentence that might have been imposed had he been tried and convicted – and he was, at times, held in solitary confinement, subjected to involuntary treatment and given ‘very limited or no access’ to mental health and disability services or rehabilitation programs.

The Committee found that Australia did not provide Mr Leo with the support he needed to stand trial, to exercise legal capacity and access justice (art. 12(2), 12(3) & 13(1). Mr Leo was deprived of his right to a fair trial and of the equal protection and benefit of the law (art. 5(1) & (2). Making public mental health services conditional on people with disabilities living in an institution is discriminatory (art. 5). Australia justified Mr Leo’s arbitrary detention on the basis of his disability (art. 14(1)(b)) and his treatment was inhuman and degrading (art. 15).

Read more on Leo v Australia.

Noble v Australia (CRPD, 2016)

Remedy's assessment: Partially remedied

A court decided an intellectually impaired teen facing criminal charges was unfit to plead; he was imprisoned indefinitely without trial. A psychologist determined that with appropriate assistance the author was capable of standing trial, but the charges were dropped owing to insufficient evidence. After 10 years in prison, the man was released on restrictive conditions of unlimited duration and with no avenue of appeal to have them lifted.

The Committee on the Rights of Persons with Disabilities found Mr Noble was denied a fair trial, equal protection under the law, and the support he required to exercise his legal capacity. The Committee found his disability was the ‘core cause’ of his deprivation of liberty, which it deemed arbitrary and a form of inhuman and degrading treatment.

In response, Australia admitted failures, but denied violating Mr Noble’s rights and declined to comply with any of the Committee’s recommendations.

Read more on Noble v Australia.