A government commission found on Tuesday that Australia failed to abide by international human rights treaties by allowing the Northern Territory to indefinitely lock up people who could not be tried in a criminal court because of mental disabilities.
The Australian Human Rights Commission investigated the cases of four aboriginal men — identified only as KA, KB, KC, and KD in the report — but these potentially represent just the tip of the iceberg.
The cases expose a struggle to govern communities spread across vast swathes of central Australia, and the way the country's crushing wheels of bureaucracy and justice deal with mentally handicapped people.
According to the AHRC report, KA was born at Titjikala, an aboriginal community of some 200 people in the Simpson Desert in the heart of Australia. KA's mother reportedly had "significant cognitive and physical impairments and was unable to care for him" when he was born, and his father was absent throughout his childhood.
At six, a pediatrician found that KA was intellectually impaired. He was harming himself, and was aggressive to other children. When he was 13 years old, he was diagnosed with epilepsy and a brain injury. In 2007, at age 16, he stabbed his uncle to death with a kitchen knife.
The report says KA's uncle was an alcoholic. They lived together in Ltyentye Apurte, an indigenous community in the Northern Territory. The court case against KA stated that on the morning of July 17, 2007, KA heard his uncle talking about taking the teen to visit his aunt in Titjikala. KA waited at home all day, packed his clothes, medication, and video games. When KA's uncle came home too drunk to make the trip, the teen allegedly flew into a rage and committed the murder.
KA was found to be unfit to stand trial, due to mental impairment. Instead, during a special hearing, the jury returned a qualified verdict of guilty of manslaughter by reason of diminished responsibility. A qualified verdict, under Australian law, does not constitute a basis for an actual finding of guilt in relation to the offense.
Today, KA is still in Alice Springs Correctional Center, a maximum-security prison, with no mental health unit or special needs staff. If he had been tried and actually convicted of manslaughter, he would have served as little as one year in prison.
There are no long-term forensic mental health facilities in the Northern Territory, so in 2002 the regional government decided that if someone was found not guilty because of mental impairment, the court could either unconditionally release that person, or send them to prison anyway.
If an individual is unfit to even stand trial because of mental impairment, then they can be released, supervised by mental health workers in the community, or jailed after a special jury hearing.
In 2005, a Northern Territory senate select committee on mental health expressed its dissatisfaction with the situation:
"Given the medium to long-term incarceration of many individuals in this category they would clearly be better accommodated in a more appropriate, safe and therapeutic environment oriented toward rehabilitation and community reintegration. No such environment exists in the NT. Establishing such a facility in a very small jurisdiction would require a substantial capital investment and operational funding."
Two of the four men have been transferred into a new care facility that opened in 2013, after serving several years in maximum security, although KA remains in prison.
KA's legal guardian, Patrick Magee, told ABC radio on Wednesday that his transition has been harder because he has trouble understanding boundaries and social interactions. Magee has concerns about the welfare of his client while he remains behind bars.
"This is a young man who uses violence as a means of communicating," Magee said, "so when he is angry or frustrated at the moment, because he's in a cell by himself, he bangs his head against the bars of the cell, sometimes so badly that he causes himself quite a significant injury, and has been known to become unconscious. The response of the prison, which is not a disability support service, but a maximum-security prison, is to physically and chemically restrain him. Now, luckily that seems to have decreased, but we still see signs of it every now and again."
The Australian Federal Government, which the AHRC report deemed to have fallen short of international human rights obligations, disputes its level of responsibility. Instead, they say, it is a matter for the government of the territory.
"The Commonwealth fundamentally disagrees with the commission's interpretations of Australia's international human rights obligations," the government said in its response to the AHRCs findings.
Senator Rachel Siewart, from the Australian Greens Party, was the only member of federal parliament to take the government to task over the report.
"The commission have called on the government to ensure the two complainants who remain in maximum security prison are placed in suitable accommodation, and have made a number of wider, systemic recommendations that the Commonwealth work with the NT government to ensure people with cognitive impairment are supported.
"The government has a clear obligation to protect the human rights of all Australians, but this obligation is being ignored. I call on the government to accept and enact the AHRC's recommendations as a matter of urgency."
The outcome of these four cases, though, is only the beginning when addressing the social, economic and legal context that led to these four aboriginal men with intellectual disabilities being locked in maximum security prison.