CCPR/C/132/D/2900/2016 Advance unedited version 5.2 Regarding the issue of domestic remedies, the author underlines that the State party acknowledged that administrative remedies cannot be considered effective for the purposes of the Optional Protocol. Therefore, the State party has not indicated any effective remedy the author could have made use of. Regarding the ineffectiveness of pursuing an action in the High Court of Australia, the author reiterates his arguments presented in the complaint. 5.3 Regarding the State party’s submission in relation to his claims under article 9 of the Covenant, the author reiterates his arguments in his complaint and notes that as regards the issue of proportionality, the Committee has found that the longer detention continues, the heavier the burden is on the State party to ensure rehabilitation and reformation. 17 Furthermore, he repeats that to the extent that any rehabilitative efforts have been implemented, these have been made only very recently. Furthermore, the 2017 periodic report is not available to the author or his guardian, which prevents them from effectively responding to its findings. He repeats that since no court has assessed the ongoing risks posed by him since 2003, the State party is basing its assertion in this respect on very outdated findings. Despite the periodic reports, these assessments have not been particularised and subject to cross-examination in any court of law in breach of the due process guarantee. Lastly, the author notes that he has never suggested that he should be released from custody but that his detention should be appropriate to his condition. The failure to provide alternative facilities and resources should not be erected as an excuse to deprive him of his human rights. 5.4 Regarding his claims under article 10(3) of the Covenant, the author notes that the distinction between prisoners and convicted prisoners in para 10 of General Comment no 21 relates to a distinction between convicted persons and persons on remand. This paragraph, however, was not intended to exclude the application of article 10(3) in case of prisoners in preventive detention, which would deprive this growing circle of vulnerable detainees from important guarantees, such as access to rehabilitation, under the Covenant. As regards the substance of his claims, the author repeatedly contests the State party’s position that significant therapeutic and disability support has been provided to him. He notes that he has not been given access to documents supporting these allegations.18 He further reiterates that a maximum security prison environment is inappropriate for his therapeutic needs and notes that the State party’s statement regarding his limited prospects for rehabilitation is contradicted in other parts of its observations. He underlines that despite its aims, the impugned law has had the impact of incarcerating and punishing the author for over 20 years, a person with mental illness, primarily because the State party has failed to provide the resources for practicable alternatives to prison. He further notes that neither he, nor his guardian has the power to apply for a variation or revocation of the custodial supervision order. The author further contests the effectiveness of guarantees allegedly built in the legislative scheme because the court’s power of variation, upon receipt of a report, is dependent on the availability of an alternative placement, which is lacking in the region. The author also notes that the State party’s submission seems to create the impression that every 12 months a review is carried out by the court. Periodic reporting obligation, however, does not equate to annual reviews. In addition, the right to appeal is limited to the imposition of the supervision order and cannot concern its terms, including the lack of regular mandatory reviews. 5.5 Regarding articles 17 and 23 of the Covenant, the author notes that the State party provided facts relating to his detention in Alice Springs Correctional Centre in 2013 and 2014 that clearly demonstrate the author’s ability to connect with family and indigenous community and that the excessive burden placed on his relations before 2013 and as a result of his relocation in 2015 stands true regardless of his pre-detention relationships. State party’s additional observations 6.1 On 31 October 2019, the State party submitted additional observations in relation to the present complaint including documentary evidence to support its position. 17 18 8 The author refers to Miller et al v. New Zealand (CCPR/C/119/D/2502/2014). The author’s guardian confirmed in an affidavit that the State party has not been forthcoming in providing information in relation to the author’s situation since his transfer to Darwin.