DETENTION AND INVISIBILITY IN THE NEW SOUTH WALES FORENSIC SYSTEM UNDER INTERNATIONAL HUMAN RIGHTS LAW
SHERINE AL SHALLAH
I	INTRODUCTION
Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘Forensic Act’), the detention of forensic patients who were found not criminally responsible for a proven act by reason of mental illness (‘FNCR patients’) may be indefinite and their release is subject to broad discretion. Additionally, the Mental Health Act 2007 (NSW) (‘MH Act’) restricts FNCR patients from revealing their identities in any form of communication. 
Both issues are related to domestic legislation that arguably only affects residents of New South Wales. Human rights law has been considered as the only framework that could be applied to scrutinise the domestic mental health policies of a sovereign state. Universal human rights frameworks forbid ‘arbitrary’ detention, and enshrine ‘freedom of expression’. Australia is party to the International Covenant on Civil and Political Rights (‘ICCPR’). As such, Australia has committed that ‘no one shall be subjected to arbitrary arrest or detention’ and that ‘everyone shall have the right to freedom of expression’. 
This essay reviews legislative provisions on the detention and name publication of FNCR patients in New South Wales (‘NSW’) and compares them to those in other jurisdictions. The essay examines these provisions under interpretations of arbitrary detention and lawfulness of freedom of expression restrictions, in universal human rights frameworks and customary international law. The review and examination then synthesise ways to explore enforcement in the case of Saeed Dezfouli, an FNCR patient who has fought to contest his continued detention and reveal his identity in order to access advocacy support.
II	DETENTION OF FORENSIC PATIENTS
A	FNCR Patient Detention in NSW
The main legislation governing FNCR patients in NSW has been recently renamed and updated to change the relevant verdict to act proven but not criminally responsible, allow different treatment for low level offenders and extend the time by which the court can supervise a person diverted out of the criminal justice system. The legislation has retained discretion around the detention and release of FNCR patients, which has allowed for the indefinite detention of some patients in a number of circumstances. The legislation has also retained the administrative elements of FNCR patient detention.
The prospect of indefinite detention for FNCR patients stems from continued uncertainty around the length of the detention period and lack of clarity on the parameters for release. The detention period is not set as a fixed term, and the court imposes a limiting term for proven acts associated with a prison sentence that is equivalent to a ‘best estimate’ of the sentence whereas the detention period may be extended. 
Rather than provide a set of positive criteria for release, the legal test is negatively articulated such that FNCR patients may only be released if the Mental Health Review Tribunal (‘MHRT’) is satisfied that they no longer endanger their or others’ safety, and not unless MHRT has considered a number of matters. The considerations are not based on the treatment plan or progression milestones, but rather to general considerations around the risks of release in relation to appropriateness of less restrictive care, patient risk report and whether they have spent sufficient time in custody. Whereas Netherlands’ legislation links the period of detention for mental health treatment to the treatment plan by providing that FNCR patients serve a punitive sentence before treatment to distinguish the two. FNCR patient legislation in the United Kingdom authorises the release of FNCR patients from detention under a set of positive criteria that are directly linked to the patient’s diagnosis and an evidence-based plan that is supervised by a quality commission. The treatment plan in NSW, including drugs administered on the FNCR patient, is decided by the medical officer with no required input from the patient regardless of diagnosis. FNCR patients have in some instances objected (unsuccessfully) to their treatment drugs.
FNCR patient detention is supervised by the MHRT. The MHRT carries out reviews of FNCR patients during their detention every six months, or as requested by relevant ministers or medical superintendent of the mental health facility in which the FNCR patient is detained. The revision period does not vary based on the mental health diagnosis of the FNCR patient, their progression or limiting term (if imposed). The MHRT has the power to make decisions in relation to detention, treatment and release. MHRT is composed of lawyers, psychiatrists, consumer organisation nominees and other ‘suitable’ persons. The composition of the MHRT for periodic hearings in relation to FNCR patients does not require a lawyer or forensic psychiatrist. The MHRT describes itself as a ‘quasi-judicial’ specialist body.  In Germany, FNCR patient legislation is included in the Criminal Code and a judicial authority reviews patient treatment progress and orders release.
B	Application of International Law on Arbitrary Detention
1	Right to Liberty
The ICCPR states that ‘everyone has the right to liberty and security of person’. Liberty of person has been defined as freedom from confinement of the body and security of person includes freedom from injury. Persons are deprived from liberty or security when they are detained ‘without free consent’, which includes both detention by ‘lawful organisations’ and ‘involuntary hospitalization’. 
Right to liberty and security of person is not absolute, and it is only detention that is arbitrary or unlawful (or both) that violates the right. International human rights frameworks state that ‘no one shall be subjected to arbitrary arrest, detention or exile’, and that ‘no one shall be deprived of his [or her] liberty except on such grounds and in accordance with such procedure as are established by law’.   
2	Arbitrary Detention 
Arbitrariness is interpreted beyond unlawfulness to include inappropriateness, injustice, unpredictability, unreasonableness, in addition to lack of all of due process of law, necessity and proportionality. As arbitrariness is interpreted broadly, detention must not only be lawful but ‘reasonable in all circumstances’. All measures of detention should be justified, necessary and proportional to the aim. As such, ‘arbitrary’ detention can never be a justified, necessary or proportionate measure. 
The International Court of Justice has emphasized the elements of necessity and proportionality in interpreting ‘arbitrariness’ of detention under the ICCPR. A state is considered responsible for the exercise of detention powers by entities it authorizes and must ‘rigorously’ provide ‘strict and effective control’ so that those powers do not lead to arbitrary detention. Detention is not arbitrary if it results from a final decision taken by a domestic judicial instance, in accordance with domestic law, and in accordance with relevant international standards and instruments accepted by the concerned state. 
Arbitrary detention could occur in both criminal justice settings and health-care settings. Arbitrary detention includes administrative detention and continued detention after the execution of applicable punishment. Arbitrary detention is not only detention whose legal basis is impossible to invoke, but also any detention that can be characterised by ‘grave’ partial or total non-observance of international fair trial norms.  
3	Arbitrariness of FNCR Detention in NSW
The decision to restrict a person’s right to liberty and security of person, and keep them in any form of detention, may be considered arbitrary if it is not a judicially imposed fixed sentence. The continued detention of a person after the completion of their ‘sentence’ may also be classified as arbitrary detention. Placing the focus on public protection transforms FNCR detention into preventive or incapacitating. Preventive detention is generally considered likely to tip the balance between public safety and the human rights of the persons concerned if not applied according to clearly defined legal criteria. To protect FNCR patients from arbitrary decisions, decision-making must be objective and guided by clear and fair rules. 
The lack of certainty around the detention period for FNCR patients and potential unclarity around release considerations imply that FNCR patients may be detained for much longer than their prison sentence would have been had they been found criminally responsible. The European Convention on Human Rights (‘ECHR’) has been interpreted to allow for the detention of longer duration than the maximum penalty of the proven offence if coupled with an obligation to provide adequate treatment. Moreover, concerns have also been raised about ‘quasi-judicial’ MHRT hearings, and whether the right to have decisions regarding the deprivation of liberty determined by a court of law are adequately applied by similar tribunals. The MHRT has raised concerns around its ability to perform its statutory role within the current framework for release planning and case management.
(a) 	Justification of Detention
Any detention must be justified by one of the recognised aims that include protection of the rights and freedoms of others, public safety and prevention of crime – all of which have been used in NSW to justify FNCR detention. The NSW legislation’s objective is protection of victims and safety of the community. 
When a criminal sentence includes a non-punitive period intended to protect the safety of other individuals, then ‘additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee’s committing similar crimes in the future’. Conditions must be distinct from the conditions for convicted prisoners serving a punitive sentence that imposed detention must not be ‘equivalent to penal imprisonment under the label of civil detention’. 
Substantive grounds for [continued] detention must be defined with sufficient provision to avoid arbitrary interpretation and application. Detention decisions are considered arbitrary if they are not subject to periodic re-evaluation of the justification for continuing the detention, which includes in the context of  forensic mental health law the right to an independent hearing. Lengthy detention of FNCR patients in NSW may be considered arbitrary because of the lack of ‘sufficiently frequent judicial review’ of the substantiveness of the justification of detention. It has been noted that ‘the purpose of indefinite detention is to be able to respond to the individual needs of each patient on a forensic order’. 
The ECHR permits the detention of forensic patients for alleviating their mental health condition and preparing them for eventual release, and continued detention only if the risk of new serious offences is ‘sufficiently concrete and specific’. Whereas the NSW legislation allows the extension of a forensic patient’s detention if the court is satisfied to ‘a high degree of probability’ that the patient poses ‘an unacceptable risk of causing serious harm to others’ without having to determine the likelihood of the risk. 
Involuntary hospitalisation must be under a program of treatment and rehabilitation that serves the purposes that are asserted to justify the detention, and be accompanied by procedural and substantive safeguards that are legal, adequate and respective of the FNCR patient’s views. NSW legislation focuses criteria for extension and release on public protection, which encourages the designation of certain categories of mentally disordered offenders as higher risk rather than individualizing risk assessment and are contrary to approaches favoring reduction of stigma and discrimination. Risk assessment could be professionally determined based on globally developed and clinically based tools. The risk to further deterioration in the condition of the FNCR patient must constitute part of the analysis as well.
(b)	Necessity and Proportionality of Detention 
An essential condition for the valid invocation of the customary international law plea of necessity is that non-compliance with the international obligation at issue actually be necessary for this purpose and proportionate to that end, which can never be possible with arbitrary detention. Detention for a ‘particularly long time’ even based on a state authority decision will be arbitrary in the absence of adequate attempts to ascertain the necessity of the detention. It is difficult to argue that FNCR detention in NSW only continues to be ordered based on an ascertainment that it ‘is the only way […] to safeguard an essential interest against a grave and imminent peril’. Under the NSW legislation, it is likely that detention of some FNCR patients could be arbitrary in being ‘not necessary in all the circumstances of the case and proportionate to the ends sought’. A review of the NSW legislation has noted that the indefinite detention of FNCR patients may ‘affect a forensic patient’s self-esteem, confidence and hope for the future’.
A statutory basis has to be in place that requests medical expertise as a basis for judicial decisions around FNCR patients and allows for certainty and predictability. ECHR has held that in the absence of adequate medical reporting the treatment of forensic patients may be considered inadequate such as to also trigger a verdict of ‘inhuman or degrading treatment’.
NSW legislation should mandate that less restrictive alternatives to confinement be considered for FNCR patients unless detention continues to be necessary for the diagnosis and treatment progression and proportionate to the patients’ rehabilitation. Whereas in the considerations for release, the MHRT is obliged to consider the ‘reasonable’ necessity of continued detention without regard to its proportionality to the risk to the patient or the community. There is no consideration of the FNCR patient’s suicide risk as has been associated with continued detention, for instance. Moreover, the detention of an FNCR patient may be extended under a broad statement that the risk cannot ‘adequately’ be managed less restrictively. The NSW legislation does not apply the ‘last resort’ principle to continuing detention for exceptional cases only nor does it enumerate potential alternatives to forensic detention (residential facilities, community-based care) for consideration of the MHRT or the court. 
The NSW legislative provisions around the limiting term and extension periods for FNCR patients are also not strictly proportional to the sentence for the proven offence and as such the offending risk. European criminal codes explicitly state either that detention in a psychiatric hospital may not be ordered if disproportionate to the seriousness of the adjudicated or predicted offences, specify the maximum length of the forensic detention period in relation to the offence sentence or intensify judicial review of persisting dangerousness on the basis of (external and independent) psychiatric expertise. For example, it has been stated that in NSW around six per cent of forensic patients re-offend after release, compared to forty-one per cent for released prisoners. 
It could even be argued that the Forensic Act has to some extent legislated against the necessity and proportionality consideration of FNCR patient detention by stating that a defendant charged with a serious offence should be receive the ‘proper verdict’ of FNCR and be referred to the MHRT for treatment and supervision ‘for as long as they require’.
(c)	Non-discrimination of Detention 
The right to liberty and security of person is non-discriminatory, including to ‘persons with disabilities’ and ‘persons convicted of crime’. Detention that is only based on discriminatory grounds, including disability, is arbitrary.  The ‘existence of a disability shall not in itself justify a deprivation of liberty’, as such NSW legislation must link continued detention of FNCR patients to specific personal and community risk factors rather than to general risks from their status as FNCR patients. Legislation cannot be read  depriving liberty based solely on a judgment of unsound mind. 
Particularly as Australia is also party to the Convention on the Rights of Persons with Disabilities (‘CRPD’) and has committed to ensure that the existence of a mental illness in a person shall in no case justify a deprivation of liberty. FNCR patients are subject to ‘greater restrictions than would have otherwise been imposed as part of the civil mental health system for an indeterminate period of time’. Forensic psychiatric reports must be required to prevent detention related violations and ensure that FNCR patients are not treated discriminatorily and receive equivalent care to mental health patients outside penal institutions.  
III	COMMUNICATION OF FORENSIC PATIENTS
A	Name Publication of Forensic Patients in NSW 
FNCR patients in New South Wales are restricted from revealing their names, unless they obtain approval from the MHRT. MH Act tries to balance out this restriction by opening MHRT proceedings to the public. The MHRT has described this approach as addressing the two conflicting public interests of FNCR patients’ rehabilitation and re-joining the community, with the ‘legitimate’ public interest in public hearing for a breach of the ‘public peace’. 
Name publication is considered to have potential implications on patients’ likelihood to appear or freely exchange information at a MHRT hearing, in addition to potential stigma or discrimination affecting their ability to safely re-join the community after being released from detention. A third party may obtain approval to publish the name of an FNCR patient, whereas the approval is not linked to an approval by the FNCR patient. The legislation also does not link the approval to the mental health condition of the patient, nor to an assessment of the impact of name publication in the individual case. 
B	Application of International Law on Freedom of Expression 
1	Right to Freedom of Expression
ICCPR provides that ‘everyone shall have the right to hold opinions without interference’ and ‘the right to freedom of expression’, which includes the freedom to ‘seek, receive and impart information and ideas of all kinds’.  Freedom of expression is essential for the promotion of human rights, and provides the means for the exchange and development of opinions to enable freedom of opinion. 
As it ‘carries with it special duties and responsibilities’, the right to freedom of expression can be restricted only as provided by law and if necessary ‘for respect of the rights or reputations of others’ or ‘for the protection of national security or of public order (ordre public), or of public health or morals’.
2	Restriction of Freedom of Expression of FNCR Patients
Freedom of opinion and expression are considered ‘indispensable’ for the full development of the person and essential for a ‘participation in public affairs’ in a free and democratic society. As such, any restriction on freedom of expression constitutes a serious curtailment of human rights and a general restriction is incompatible with the purpose of the ICCPR. Restrictions on freedom of expression must be ‘provided by law’, may only be imposed for one of the grounds set out in the ICCPR article and must conform to the ‘strict tests of necessity and proportionality’. It has also been held that legislation restricting freedom of expression must itself be ‘compatible’ with the provisions, aims and objectives of the ICCPR as it affects the enforcement of ICCPR rights generally.
The right of an FNCR patient to disclose their name is consistent with a freedom to impart information, potentially also to seek or receive information or ideas through publication and advocacy.
(a)	Justification of Restriction
NSW legislation has restricted FNCR patients from publishing their names, on the twin grounds of FNCR patients re-joining the community and public participation in a hearing for a breach of the ‘public peace’. These seem consistent with the ICCPR restriction grounds for protection of ‘public order’, which means the ‘rules that are linked to the general organization of the state, to the economic system, morals, health, security, public peace, rights, fundamental rights and freedoms of each citizen’.
Restrictions on freedom of expression must be applied only for the purposes for which they were prescribed and must be directly related to the specific need on which they are predicated. Restriction on the communication of FNCR patients has been justified by a perceived impact of name publication on their rehabilitation, and by the enablement of free exchange at public hearings. Neither justification explains why FNCR patients could not make this decision themselves rather than leave it up to the MHRT, and in some instances upon the application of a third party without their approval. 
The MHRT composition for a name publication hearing does not necessarily have medical specialists or forensic psychiatrists to assess these potential impacts, nor is the expertise of the third party qualified in the legislation in some way. The scope of freedom of expression is not assessed by reference to a ‘margin of appreciation’ and can only be restricted after a specific demonstration of the precise nature of the threat to the enumerated grounds of restriction that has caused it. The NSW restriction does not seem to address the impact of a public hearing on the FNCR patient’s openness at the hearing or community re-integration that the legislation aims to address with the freedom of expression restriction. 
(b)	Necessity and Proportionality of Restriction
Even if the purpose is considered to be legitimate, the legislation must still demonstrate the necessity and proportionality of the specific restriction.  The restriction should be ‘necessary’ for the legitimate purpose such that if the purpose could be achieved in other ways that do not restrict freedom of expression, then the restriction violates the test of necessity.  
It is not enough that the NSW legislation refers to threats to patient and community interests at a high level, it must demonstrate in specific and individualized fashion the precise nature of the threat to these interests by establishing a direct and immediate connection between name publication and the threats. MHRT may not impose such restrictions on FNCR patients except to the extent to which they are strictly necessary in the public interest to attain the purpose of the restriction. The restriction may be considered in contravention of the freedom to communicate information with a political content if an FNCR patient wishes to publish their name to protest their detention or the justice of the ‘forensic hospital’ system generally. 
The restriction may also be considered disproportionate to its purpose that could also be achieved through public awareness campaigns around mental health issues and effective pathways for community re-integration of FNCR patients, in addition to other forms of emotional support for victims and communities. Such campaigns and programs would count towards Australia’s ICCPR obligations for anti-discrimination, as has been noted.
The reasons given in support of the name publication restriction are not entirely relevant nor are they sufficient. Moreover, the procedural fairness of the process to grant an FNCR patient the right to publish and use their name is not apparent. As such, there is a high risk that the restriction could be abused to disallow FNCR patients from becoming visible and participating in decisions concerning them. Most importantly, restriction to name publication is directly related to the essence of freedom of expression as a nameless individual cannot be a participatory member of their community. 
(c)	Non-discrimination of Restriction
Any restrictions on freedom of expression must be understood in the light of ‘universality of human rights’ and the principle of non-discrimination. The CPRD lays out the principle of respect for individual autonomy, legal capacity and freedom to make own choices. 
In not recognising an equal right for FNCR patients to choose whether or not to publish their names and giving that right to third parties, the NSW legislation may be seen as compromising the patients’ autonomy and restricting a primary decision-making right that enables the patients to reveal their identities to communicate and access advocacy support. Name publication could be seen as essential for FNCR patients to participate fully in political and public life on an equal basis, for example to contest their detention or the detention of other FNCR patients.
NSW legislation in this regard may also be considered to discriminate between FNCR and other detainees in relation to expression and communication. FNCR patients detained in psychiatric hospitals must be entitled in principle to the same rights that are available to sentenced (and fully criminally responsible) prisoners. FNCR patients should be treated legally as full participating members of society who are able to make their own choices, which would mean that restriction from name publication on the basis of their mental illness may be discriminatory and thus unlawful.

IV	CASE STUDY: SAEED DEZFOULI
A	Case Summary
Saeed Dezfouli is an FNCR patient who occupies one of 135 beds at the Forensic Hospital at Long Bay Prison in NSW. Dezfouli has been in ‘indefinite’ detention since 19 January 2002, after he was accused of starting a fire at his workplace that resulted in the death of a woman.  Dezfouli claims to have received death threats in 2001 that were not taken seriously by authorities such that he was then accused of setting fire to the foyer of the Community Relations Commission and subsequently charged with several offences. Fire setting has been linked to specific psychiatric diagnoses and treatments that do not seem to have been considered in his individual case. The sentences for the offences that he was charged with would have detained him for a lesser period than he has been detained so far (close to twenty years). As of May 2021, Dezfouli is still in detention and looking for legal avenues for his release. 
During Dezfouli’s time in detention, he has repeatedly undergone forced injections of Cloxipol while physically restrained by staff, and neither his treatment plan nor his detention period have been influenced by his being a non-violent prisoner over the entirety of his time in detention. Dezfouli has embarked on several hunger strikes and attempted to put an end to this treatment by requesting and obtaining several MHRT hearings that have generally not respected his autonomous decision making. He has even renounced his Australian citizenship in a bid to be sent back to his home country of Iran supported by the Iranian embassy, whereas MHRT has refused to release him unless they are provided with a guarantee of supervised psychiatric care from the Iranian government. 
The dearth of information on Dezfouli’s case illustrates the detrimental impact of name publication restrictions on FNCR patients’ freedom of expression and result for their accessing services and participating in political life. Dezfouli has requested a waiver of section 162 of the MH Act to use his name in the campaign for his release and highlight the unfairness of his treatment and that of others. He has argued that rather than protect his community integration or privacy, the legislative provision has reduced the administrative accountability for FNCR and other forensic patients. He considers that the provision has been used to withhold the human rights and political participation of forensic patients. Dezfouli challenged the legislative ban on publishing his name for a year, with his case reaching the Supreme Court and being appealed but he finally won in 2011 and has been able to use his name since. His ability to use his name has positively impacted his access to a range of other human rights and accessing enforcement avenues for his legal action, including research of his case for this essay.
Dezfouli may have additional discrimination grounds for his ‘arbitrary’ detention on ethnicity grounds. Statistics from the United Kingdom and Denmark point to differences in forensic patient detention across different ethnicities and higher rates of involuntary admission and treatment for ethnic minorities, particularly for men. Dezfouli lodged a complaint with the Administrative Decisions Tribunal on grounds of discrimination that he could not undertake any educational courses and was denied access to educational resource.
B	Enforcement Mechanisms under International Law
1	Individual Enforcement
The ICCPR rights discussed in this essay could be enforced through seeking accountability for restrictions considered gross human rights abuses, multilateral human rights instruments (including ICCPR) and organisations, in addition to civil society action and a potential impact of all these actions on domestic enforcement – starting with the premise that domestic remedies have been exhausted.
Dezfouli may be able to access the individual complaint procedure that is provided through the Optional Protocol to the ICCPR that Australia is party to, in order to contest both his indefinite detention and the initial restriction on his name publication. The Human Rights Committee (‘HRC’) receives and assesses complaints brought by individuals alleging violations of ICCPR rights such as right to liberty and freedom of expression. Dezfouli could apply personally or consent for his carer or one of the organisations advocating on his behalf, such as Justice Action, to do so. HRC would accept communication from Dezfouli if it has ascertained that any matters he raises are not being examined under another procedure of international investigation and that he has exhausted all available domestic remedies. HRC does not have independent fact-finding or investigative functions and would reply on written reports by Dezfouli and Australia/ NSW. Dezfouli should provide documented proof for any assertions because the HRC accepts state denial as fact, whereas in this case complaints may be related to the written text of the law to facilitate the documentation of assertions by Dezfouli. If HRC investigates Dezfouli’s complaints, its findings and assessments will result in the production of ‘Views’ finding either a violation or non-violation for each allegation, in addition to communication and consultation with both Dezfouli and Australia to discuss the Views. This procedure does not result in a binding ‘judgment’, whereas upon a finding of violation by Australia it would be requested to remedy it such as in this case a potential legislative amendment and/or Dezfouli’s release. 
Dezfouli may also use the individual complaint procedure under the Working Group on Arbitrary Detention (‘Working Group’), to examine the arbitrariness of his continued detention. As such, the Working Group may render an opinion on whether or not Dezfouli’s deprivation of liberty is arbitrary, keep the case pending and request further information, file the case provisionally or definitively for lack of sufficient information or if the Working Group established arbitrary detention render an opinion to that effect and make recommendations to Australia/NSW.
Dezfouli may also apply to the CPRD in relation to potential discriminatory grounds for his arbitrary detention and any continued restrictions on his freedom of expression that are hindering his political association and participation. United Nations Committee on the Rights of Persons with Disabilities has criticised Australia for allowing unconvicted individuals to be deprived of their liberty solely on the basis of their disability and recommended that Australia ‘end the unwarranted use of prisons or the management of unconvicted persons with disabilities [and] establish mandatory guidelines and practices to ensure that persons with disabilities in the criminal justice system are provided with appropriate support and accommodation’. Dezfouli cannot apply to both HRC and CPRD at the same time.
Based on the limited information about the exchange with Iran in relation to Dezfouli’s possible repatriation being an Iranian national and Iran being a party to the ICCPR, Iran may resort to an inter-state complaint to the HRC against Australia (as the state party to the ICCPR). No such complaint has been made in the context of ICCPR, which could be understood within international political order, strategic considerations and potential retaliatory ramifications.
2	Collective Enforcement
Despite NSW legislation around FNCR patients referring to potential impacts on ‘public peace’, it is highly unlikely that the impacts of the ICCPR restrictions that are discussed in this essay will be found of a magnitude that merits a Security Council determination.
Australia's sixth periodic report on ICCPR implementation was completed in December 2017. The implementation of ICCPR obligations in Australia remains problematic in the absence of a Bill of Rights or alternative mechanism, at a Federal or NSW level, to ensure that legislation complies with ratified obligations. HRC alerted that there was a lack of understanding of some elements of ICCPR obligations by Australian authorities and requested that legislative and practical implication be improved. HRC also commented on the lack of domestic remedies to ICCPR violations, which supports an individual case to the HRC as there are limited domestic remedies to be exhausted. HRC’s observations in relation to detention of mentally ill patients could be elevated into recommendations for follow-up.
Human Rights Council (‘HRCC’) special complaint procedure may be resorted to if a petition could establish ‘consistent patterns of gross and reliably attested violations’ of human rights, which is a standard that upon the brief examination of this essay may not be applicable to the NSW FNCR legislation. Dezfouli, a group of FNCR detainees, Justice Action or other organisations could initiate such a procedure. If HRCC determines that further action is needed, it could recommend steps to gather additional information. United Nations Human Rights Council may order missions to Australia/NSW to monitor forensic detention facilities, observe treatment plans and launch investigations into particular areas in order to monitor the implementation of human rights under the ICCPR and other instruments that are suspected of being breached. These missions may be Human Rights Experts, Commissions of Inquiry, Commissions on Human Rights or Fact-Finding Missions and Investigations.
V	CONCLUSION
This essay has examined discrete provisions in the NSW FNCR patient legislative framework to examine potential violations of ICCPR rights to liberty and freedom of expression. At a high level of analysis, there are elements of concern around whether FNCR patient detention in forensic facilities may be ‘arbitrary’ given indefinite periods, comparatively broad discretion around release that is not linked to concrete risks or treatment milestones, in addition to administrative decision-making elements. The analysis is based on international law, in addition to relevant interpretations under ICCPR and similar ECHR provisions. Restrictions around name publication for mental health patients have been examined under international law on freedom of expression restrictions, whereas further insights into the impact of name publication on the welfare of patients and their community integration would shed more light on the proportionality of the restriction relative to other less restrictive means to protect patients and their communities. 
The essay has only examined the legislative provisions under two discrete ICCPR articles. Other international human rights instruments would also be relevant for a comprehensive assessment of these provisions, such as  ‘Declaration on the Rights of Mentally Retarded Persons’, ‘United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care’, ‘United Nations Convention Against Torture’, in addition to further examination under the ‘Convention on the Rights of Persons with Disabilities’ and other ICCPR rights (including fair trial rights).
Finally, direct information around Dezfouli’s case is required for a full assessment of facts, issues, potential complaints and most effective enforcement avenues. Data around forensic patients in NSW, average periods of detention and recidivism risk under different proven offences will also provide useful context for further study. The limited information available highlights the issues that this essay looks into in relation to the humanity of the detention and communication restriction of FNCR patients. The essay sheds light on some of the invisible patients in the NSW forensic system, who may continue to be detained indefinitely in potential violation of Australia’s international human rights commitments.