CCPR/C/132/D/2900/2016 Advance unedited version 6.8 Regarding the author’s minority rights under article 27 of the Covenant, the State party reiterates its position that to the extent that the author’s rights to enjoy his culture and practice his language have been limited by the terms of his custodial supervision order this limitation was not arbitrary. It further submits information on general measures adopted by the State party to reduce racism, discrimination and unfair treatment across all justice agencies and in all spheres of life.21 Issues and proceedings before the Committee Consideration of admissibility 7.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol. 7.2 The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement. 7.3 As to the question of exhaustion of domestic remedies, the Committee notes the State party’s argument that certain administrative remedies (complaint and inquiry procedure before the NT Anti-Discrimination Commissioner) have not been pursued by the author concerning his claims under article 10 (3) read in conjunction with articles 2 (1) and 26 of the Covenant, in particular as regards the discriminatory aspects of these claims. In this connection, the Committee observes that the State party failed to show that the NT AntiDiscrimination Commissioner would indeed have the power to deal with the author’s case in view of the fact that complaints may be submitted only if the discrimination occurred under specific circumstances and the author’s case does not necessarily fall within such categories. Likewise, the State party failed to show through concrete examples that even if the Commissioner had decided in favour of the author, be it within the scope of a complaint or an inquiry procedure, such a decision would indeed have a binding rather than a recommendatory effect on the relevant authorities, as suggested by the State party, and that it could provide the author with an effective remedy. The Committee further notes that the author has turned to the Australian Human Rights Commission, which is an administrative avenue, but its recommendations were left unattended by the State party allegedly because of jurisdictional issues. In such circumstances, these remedies cannot be described as ones which would, in terms of the Optional Protocol, be effective. 22 Regarding the judicial avenues, the Committee notes the author’s submission supported by legal experts’ advice that his case would have no reasonable prospect for success before the High Court of Australia. In the absence of any submission by the State party in this regard contesting the author’s assertion, the Committee considers that it is not precluded from considering the communication under article 5 (2) (b) of the Optional Protocol. 7.4 The Committee further considers that to the extent that the author is basing his claims on the Convention on the Rights of Persons with Disabilities, such claims fall outside of the scope of the Covenant and are inadmissible for incompatibility ratione materiae with the Covenant, under article 3 of the Optional Protocol. 7.5 In addition, the Committee is mindful of the State party’s position that the author’s claims under article 10 (3) are incompatible with the provisions of the Covenant because the cited provision concerns convicted persons only; however, the author was found not guilty and has a different legal status to convicted persons. The Committee notes that the author contests this argument. Having assessed the parties’ submissions, the Committee considers that the scope of protection afforded under article 10 (3) of the Covenant extends to inmates suffering from mental illness whose criminal responsibility could not be established due to their mental impairment. An interpretation to the contrary would render the protection under article 10 (3) illusionary for a particularly vulnerable group of detainees even though the 21 22 10 Aboriginal Justice Agreement; National Statement of Principles Relating to Persons Unfit to Plead or Found Guilty by Reason of Cognitive or Mental Health Impairment. See e.g. C. v. Australia (CCPR/C/76/D/900/1999), para. 7.3.