Central Desert men and women forge a pathway out of jail for one of their most vulnerable
A young Aboriginal man’s escape from hell charts a community win for one of the many cognitively impaired and mentally troubled First Nations offenders who languish in our prison system.
The golden MacDonnell Ranges rise imposingly to the left on the 80km stretch of the Stuart Highway from Alice Springs to Santa Teresa. As the road stretches on, the dusty plains of the Simpson Desert’s western edges stretch endlessly to the right.
High on a hill entering Santa Teresa – known in Arrernte language as Ltyentye Apurte – a large wooden cross overlooks the community. Inside this former Catholic mission’s church, a statue of an Aboriginal Jesus stands sentinel. Ltyentye Apurte was once named in the national census as the most Catholic place in Australia. But charity did not always extend to a boy called Malcolm Morton.
“Malcolm was excluded from the local Catholic primary school, the only school in the town, by the Catholic headmaster,” says Morton’s long-time guardian, Patrick McGee. “We fought long and hard to change that. He went to school for a little while in Alice Springs, but essentially Malcolm barely went to school and did not receive an education.”
School exclusion came about because of Morton’s challenging behaviours as a child growing up with intellectual disability. At his birth, the umbilical cord wrapped his neck, depriving him of oxygen. He soon began having seizures and was diagnosed with epilepsy. He is now described as having an acquired brain injury due to hypoxia, possibly related to right temporal lobe abnormalities.
Across the course of his life, trauma has further damaged Morton in ways that are difficult to encapsulate in words.
“Malcolm struggled to interpret the world and would get frustrated and angry,” says McGee, who was employed as a disability project worker by the Northern Territory’s child protection department when he first met Morton around 2000. McGee is now an independent disability advocate.
As Morton grew, his mother was unable to care for him or his siblings, two of whom had foetal alcohol spectrum disorder, because of her own disabilities and he was brought up as a young boy by extended family.
When his grandmother died in 1997, Morton’s mental and emotional state worsened. He was often unmanageable. He had a regular tendency to bang his head against brick walls and his temperament teetered on a hair-trigger. He would variously withdraw or explode into aggression, and self-harm in settlements blighted by alcohol and cannabis abuse.
“There was no one really on his side except for his uncle and his beloved aunty,” McGee says. “The community did not have the time, skills or the resilience to really effectively manage Malcolm’s behaviours, but they weren’t ever given the resources or the support to manage a person with such complex health and disability issues.”
The high needs of many in Ltyentye Apurte were attended to in the past by a single nurse on community and occasional doctor visits. Threadbare healthcare did not extend to disability support or specialist clinical or social services, even by outreach.
Primary care is better equipped now, but specialist psychiatric services and comprehensive social supports are still almost completely inaccessible across the remote Northern Territory.
If there was one thing Morton hated, it was isolation and abandonment. So when a teenage Morton was left alone in a hothouse one July day in Santa Teresa, his distress grew hour by hour. When his uncle, a mechanic, the local butcher and a cultural linchpin, returned home that fateful day in 2007, the young Arrernte man could not control his emotions. He fatally stabbed his uncle and was charged with murder.
On November 17, 2009, the NT Supreme Court found that Morton was not fit to plead. A special hearing was then conducted under the Territory’s criminal code. On November 29, a jury returned a qualified verdict of guilty of manslaughter by reason of diminished responsibility. Judge Dean Mildren then ordered Morton to be remanded in custody and later a custodial supervision order was made. When it was, Morton was effectively trapped in prison but received little healthcare. The order was later adjusted to be non-custodial.
The NT had no forensic healthcare facility for much of the time Morton was incarcerated. A government spokesperson now says it works to provide all people with disability or severe mental illness who lack capacity to plead with supported accommodation in the community in conjunction with the National Disability Insurance Scheme. Given the numbers and level of disability in the Territory, this seems a very large task.
There are no official statistics on how many people unfit to plead are trapped in prisons. The NDIS says it’s caring for 2500 people with cognitive impairments in prisons across Australia.
McGee estimated this cohort in a Churchill Fellowship paper to be between 800 and 1200 people with cognitive impairments and mental illness indefinitely detained each year nationwide.
Those at the frontline of health and justice in the NT, in Darwin and Alice Springs, say mental illness and cognitive impairment, which often exist together, especially with the rise of foetal alcohol spectrum disorder, affect a high proportion of Aboriginal offenders. “A tidal wave is coming,” one lawyer tells Inquirer.
For more than a decade, Morton’s treatment, first in a juvenile facility and then in Alice Springs’ maximum security prison, was horrific much of the time. He spent 400 days in juvenile detention, 233 of them in solitary confinement.
In the adult prison, Alice Springs Correctional Centre, he spent 10 out of every 12 hours a day inside his small sweltering cell with a bed and a toilet, with nothing to do. The prison adjusted his cell arrangements so it had a small balcony attached. It was feeble and superficial attempt by the state to provide some semblance of liberty for a disabled man.
“When we entered the prison, he couldn’t even wash himself,” McGee says. “He couldn’t use a knife and fork. He couldn’t do anything.”
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Morton was shackled by the hands and the feet for the short periods he was allowed out of his cell. He was chemically sedated with psychoactive drugs as a method of control. When very unmanageable he was at times strapped to a restraint chair. Morton is substantially non-verbal but speaks limited amounts of Pitjantjara and Arrernte language and a few English words. He couldn’t communicate with anybody. It was nothing short of hell on earth for a young man locked up and rendered invisible in the heart of Australia.
“He would bang his head against the wall until he was concussed, and sometimes until he was unconscious,” McGee says. “On a number of occasions it is reported that he was headbanging until he was bleeding heavily. He doesn’t know why he’s there, hasn’t got any access to family, language, culture, community, and is being beaten up regularly by everybody because he is exhibiting his usual response to being frustrated and not knowing how to behave.”
In the years that followed increasing public awareness of people with disability trapped in jail indefinitely, an Australian parliamentary Senate inquiry was held, and numerous complaints concerning Morton and several other men experiencing the same plight were lodged with human rights bodies in Australia and at the level of the UN. The Australian Human Rights Commission found that the treatment of Morton was cruel and degrading. The disability royal commission examined Morton’s case and made recommendations.
When Deborah Frith, a former long-time senior manager with the NSW Public Guardian, who established the NDIS service provider My Voice during Morton’s confinement, met him she was astounded at what was occurring in the neglect of healthcare of those incarcerated in Central Australia.
“I was extremely shocked to see a person with the level of disability that Malcolm had incarcerated in the way he was – that was not the type of experience I would ever have encountered here in NSW,” Frith says. “He was deeply, deeply unhappy and confused. As a person with a disability, Malcolm really didn’t have any idea as to what was happening to him, why he was there. As a young Aboriginal person who’s grown up on community, surrounded by family and friends, to be so isolated, it was an incredibly confusing experience for him.
“There was a complete withdrawal from him, from his environment, and a lack of trust.
“I was profoundly disturbed to see that in a jurisdiction within our commonwealth that a person with a disability, a serious intellectual disability, was being incarcerated and treated in such a way.
“As a disability practitioner who has spent the last 40 years working around the human rights of people with disabilities, this was something I just did not expect in the 21st century.”
In 2016, Morton was eventually transferred to a secure care facility, newly built under pressure from disability advocates. The environment, while better than maximum security prison, still operated as a penal facility.
As McGee details, Morton still found his life inside his facility confusing and distressing.
“The staff were all behind a glass partition and it was like Malcolm was living inside a fish bowl,” McGee says.
“The man was so heavily medicated that he was falling asleep for hours and hours during the day. He was drooling out of the side of his mouth. It was just terrible.”
In 2020 the Department of Health went to the Supreme Court and successfully argued there should be only one decision-maker in relation to Morton, and McGee and his co-guardian, Morton’s aunt, were deprived of their status as guardians to make any decisions on his care.
The NT government now transports all central Australian forensic health patients to Darwin and the NDIS says it is transitioning them to live in community-based supported accommodation. It says some live in cottages dotted on the fringes of the Darwin Correctional Centre, described as “step-down accommodation”.
No numbers are given for the number of cognitive disabled and severely mentally ill people who remain indefinitely locked in prison. “Due to the risk of identification, specific data regarding client numbers cannot be provided,” the NT government says.
“The really important thing here is that this was about saying to the Northern Territory government, you are detaining for the purposes of treatment. Where is the treatment?” McGee says.
Authorities were convinced that if Morton were allowed to live in the community with his family, the results could be catastrophic. They fought hard to keep him detained. The evidence accumulated over years and was documented meticulously by Astrid Birgden, a forensic psychologist and one of the most experienced professionals in the nation working with mainstream offenders and people with cognitive impairment, established otherwise.
Morton’s family set themselves up with the help of advocates as a watertight and committed support network. They are too shy, distrusting and traumatised to speak to Inquirer, but their voices are represented now through First Peoples Disability Network Australia chief executive Damian Griffis, a Worimi man.
“If we measure our society by how our most vulnerable are supported, we are failing,” Griffis says. “It’s difficult to think of any more disadvantaged people than First Nations people with disability.
“The reality is that we have circumstances where First Nations people with cognitive impairments are literally abandoned and forgotten, and we have to do better as a society.”
Court hearings were held every six months to review Morton’s case during the past five years as his family worked to provide loving care, and Birgden’s evidence showed that when he was held in detention, his behaviours of concern were frequent, but in the community surrounded by family and able to speak to them in language they were not. Birgden had recently returned from running a large prison in New Orleans. She had never seen anything like what occurred in Alice Springs.
“When I visited the Alice Springs Correctional Centre, I have to say what I found shocking was that there was the use of a restraint chair because I hadn’t realised that that even existed,” Birgden says.
“I was informed at that time that up to nine officers would drag Malcolm Morton into that restraint chair in order to have a depot injection of an antipsychotic medication. At the time I was running the drug treatment prison in Sydney, and I said to staff: ‘Are you videoing this? And they said: ‘No.’ I said, ‘Well, you’d better because you could end up in the Coroner’s Court’ because he, Malcolm, had a vulnerable windpipe that could have been crushed through that process.”
Birgden’s final report comparing Morton’s plight in the forensic secure care facility showed a drastic reduction in incidents of concern when he was free in the community compared with when he lived in a custodial setting, even though by this time his neurological issues were much more severe and it seems exacerbated by his dramatic headbanging and deprivation in prison settings.
Morton’s custodial supervision order was amended in July 2023.
Then, on a sunny Alice Springs July day a year later, Morton walked out of the Supreme Court of the Northern Territory a free man, unconditionally released.
In Ltyentye Apurte, his home community has taken him under their wing.
He is free to swim in the waterholes surrounding Alice Springs that he loves. He is an active and animated communicator. He no longer paints because that was a way of processing trauma. He doesn’t need his paintbrushes any more. In the central Australian community of Titjikala, his late aunty’s home community also has embraced him with greater love and understanding.
A comprehensive NDIS package granted to Morton was also key to stabilising his behaviour. The agency is providing disability support to thousands of people to help them transition back into the community when the justice system deems it appropriate.
As the agency’s deputy chief executive Scott McNaughten says: “To see Malcolm reconnecting back with his community, I think it’s just a fantastic outcome.
“We’re really pleased to be able to continue to be part of that journey for Malcolm and provide him with those disability supports that he needs.”
Sensitivity is still high, so Frith takes up the story and describes what this historic test case that resulted in long-fought for freedom, really means.
“This is the story the community would like told: how men, black, white and brown, came together, worked together and learnt together to be able to create a pathway out of the criminal justice system for one of the most vulnerable,” she says.
“First Nations men and women from the Central Desert took on the responsibility of leading change and demanding justice with the help of their friends and colleagues.
“The community wants everyone to know that they never gave up on Malcolm and worked tirelessly for his release despite language and cultural barriers. They know and understand Malcolm at such a deep level and felt his grief and his need to return to community, and the communities need to have him home. They talked to anyone who would listen and who would care.
“If we, as a society, truly want to end the cycles of violence and reduce the load on our overcrowded prisons, then it is time we joined hands and changed the narratives. Let’s stop telling stories that demean, shame and polarise, and start telling the stories of where we succeed, collaborate and bring kindness.”