1. Human Rights Case Study
Introduction and Overview of the Case
The purpose of this study is to identify human rights issues stemming from the case of Bob, a
disabled indigenous man who was unfairly imprisoned in WA for six years. Relevant human rights
treaties and other documents will be referenced to identify specific breaches of Bob’s human rights
related to the case. These will be corroborated by other texts explaining the wider social issues
relating to Bob’s situation, including suggested solutions.
As has already been outlined, Bob is an indigenous man suffering from a disability. Though he has
been imprisoned for six years he was never convicted, as the court deemed him unfit to stand trial
due to his disability. In addition to his disadvantage as a disabled man, Bob’s indigenous background
also makes him disproportionately more likely to find himself in the custody of the justice system
(Australian Bureau of Statistics, 2013).
Though Bob was accused of assaulting his friend, he was never tried or convicted, instead being held
in custody. Another issue arising from this situation is that Bob shares his cell with someone who has
already been convicted of assault.
Human Rights Issues Arising from the Case
Several breaches of human rights can be found in Bob’s case, crossing many different categories of
human rights violation. There are a number of Articles in the Universal Declaration of Human Rights
(UN General Assembly, 1948) that identify areas of concern:
• Article 2 declares the right to be free from racial discrimination. As disproportionate
incarceration relative to the population has been identified as an issue affecting Aboriginal
Australians, the unscrupulous manner in which Bob has been held in custody can be seen as
a form of systemic racism.
• Article 3 declares the right to security of person. Bob suffers from a disability and has not
been found guilty of any crime, yet is held as if her were a convicted criminal. This would no
doubt cause extreme distress for Bob, and therefore constitutes a denial of his personal
security.

2. • Article 9 is against arbitrary detention and arrest. As Bob has not been convicted, there are
no reasonable grounds for him to be held in detention for six years.
• Article 10 provides the right to a fair and public hearing. The continual failure to process Bob
based on the premise that he is unfit to stand trial due to his disability violates this Article.
• Article 11(2) states that no punishment shall dealt which does not fit a crime, and that no
resulting penalty for an offence shall be greater than that which is lawful. This Article, too,
threatens to be breached; a Lateline report revealed there were several cases similar to
Bob’s where disabled persons had been in custody for longer than if they had been
convicted of the alleged crime itself (Stewart, 2014).
The aforementioned UDHR Articles begin providing an overview as to which of Bob’s rights have
been violated. However, as the UDHR is not a binding legal document, a more concrete case be built
up from the relevant human rights treaties.
Human Rights Treaties Defending Bob’s Rights
There are four treaties adopted by the UN General Assembly which are particularly relevant to Bob’s
situation:
1) International Convention on the Elimination of All Forms of Racial Discrimination (1965).
This treaty expands upon Article 2 of the UDHR.
Article 5 (e)(iv) of this convention declares the right to public health, medical care and social security
for all indigenous people in particular. Bob’s special needs as a disabled Aboriginal man are relevant
here.
2) International Covenant on Civil & Political Rights (1966).
This covenant is related to Article 3, Article 9, Article 10 and Article 11 of the UDHR.
Article 9(3) of the covenant declares anyone detained or arrested on a criminal charge must be
brought before a judge immediately, not kept in custody. Meanwhile, Article 14 demands a fair
hearing, and that all persons may be considered equal before the law. This cannot be honoured if

3. Bob is simply dismissed as unfit to stand trial based on his disability. Article 10(2)(a) states that an
accused person must be held separately from convicted persons. In order for Australia to honour
this Article, Bob would need to be removed from his current cell, which is shared by someone
already convicted of assault.
3) Convention on the Rights of Persons with Disabilities (2006).
Article 5 of this convention again mentions equality before the law, but enshrines this law with
regard to disabled persons in particular. State parties are required to take all possible measures in
accommodating for disabled people seeking justice.
4) UN Declaration on the Rights of Indigenous Peoples (2007).
This declaration protects the rights of indigenous people, especially with respect to the rights of
indigenous peoples to self-determination and control over their own affairs.
Although this treaty is arguably the most thematically relevant to Bob, it is not necessarily the most
effective treaty in terms of application, as Australia has not yet ratified it. However, much of the
material in this treaty overlaps with the International Convention on the Elimination of All Forms of
Racial Discrimination, which can be interrogated further for its relevance to the case through
observations made of that treaty.
Treaty Body Observations Related to Bob’s Case
The most recent observations made regarding the International Convention on the Elimination of All
Forms of Racial Discrimination and its implementation in Australia were made in 2010, during the
seventy-seventh session of the CERD. Relevant to Bob’s situation is the 20th
concluding observation,
which states that Australia must do more to address the social and economic factors leading to
disproportionate indigenous incarceration. This would include justice and community measures with
more indigenous control and input, adequate healthcare for prisoners, and prevention programs
(2010, p.4).
Recommendations and Implementations Suggested in Other Sources
In addition to further comment on the rights of racial minorities, the 77th
session of the CERD
suggests solutions that could be adopted by Australia to remedy issues of racial discrimination,
including around issues relating to Bob’s case. Similar recommendations are included in other
sources.

4. The Social Justice and Native Title Report 2013, published by the Australian Human Rights
Commission, is one such source. In Chapter 1.2, sec. (e)(v), a need to address the underlying social
conditions leading to indigenous health inequality is stated, with page 102 of the report suggesting
the implementation of the National Aboriginal and Torres Strait Islander Health Plan 2013-2023. In
sec. (f)(iii) of that chapter, the report advocates at length for special attention to indigenous people
with disabilities. It cites research showing disabled indigenous people are more likely to quickly
progress to custody after contact with law enforcement. It identifies the criminalisation of care as a
major issue which must be remedied. That is, the criminal justice system being used in place of
adequate healthcare facilities.
In the previously cited Lateline report, many similar suggestions are made by interviewed experts
with reference to the case of Roseanne Fulton, an aboriginal woman suffering from foetal alcohol
syndrome who was imprisoned for 21 months without conviction, being deemed unfit to stand trial
under similar circumstances to Bob (2014).
Concluding remarks
The international system of treaties and declarations clearly identifies breaches to Bob’s rights as a
disabled aboriginal man who has been denied fair treatment before the law. In the observations of
the CERD and report by the Australian HRC, a number of negative social trends related to aboriginal
incarceration, the criminalisation of care and the vulnerability of aboriginal people who are also
disabled, are identified. Concrete proposals are also put forward, which could be implemented by
the Australian government and therefore allow it to honour its obligations to the international
treaties it has signed.
Thomas Marcinkowski
8/9/14

6. References:
• Australian Bureau of Statistics. (2013). Aboriginal and Torres Strait Islander prisoner
characteristics: Imprisonment Rates (Cat. No. 4517.0). Retrieved from
http://www.abs.gov.au
• Australian Human Rights Commission. (2013). Social Justice and Native Title Report 2013.
Retrieved from
https://www.humanrights.gov.au/sites/default/files/document/publication/social_justice_n
ative_title_report_2013.pdf
• Stewart, J. (Reporter). (2014, June 25th). Rosie to return home [Video podcast]. Retrieved
from http://www.abc.net.au/lateline/content/2014/s4033302.htm
• UN Committee on the Elimination of Racial Discrimination (CERD), Consideration of reports
submitted by States parties under article 9 of the convention: Seventy-seventh session (2-27
August 2010), 2010, CERD/C/AUS/CO/15-17.
• UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution /
adopted by the General Assembly, 24 January 2007, A/RES/61/106, available at:
http://www.refworld.org/docid/45f973632.html [accessed 8 September 2014]
• UN General Assembly, International Convention on the Elimination of All Forms of Racial
Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660, p. 195, available
at: http://www.refworld.org/docid/3ae6b3940.html [accessed 8 September 2014]
• UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966, United Nations, Treaty Series, vol. 999, p. 171, available at:
http://www.refworld.org/docid/3ae6b3aa0.html [accessed 8 September 2014]
• UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples :
resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at:
http://www.refworld.org/docid/471355a82.html [accessed 8 September 2014]
• UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III), available at: http://www.refworld.org/docid/3ae6b3712c.html [accessed 8 September
2014]