Making detention safe and humane: can we grasp a once-in-a-generation opportunity?

Making detention safe and humane: can we grasp a once-in-a-generation opportunity?

Austin Asche Oration
Australian Academy of Law and Charles Darwin University
Nitmiluk Lounge, Level 4, Parliament House, Darwin

5pm, 19 September 2017

 

Introduction

Acknowledgements

• Traditional Aboriginal owners, the Larrakia people
• Austin Asche AC QC (former NT Administrator and Chief Justice of NT Supreme Court) and Dr Valerie Asche
• Minister Jeff Collins
• Commissioner Brenda Managhan
• Professor Sue Carthew, Provost and Vice President of Charles Darwin University
• Prof Les McCrimmon.
• Les has been a mentor and role model for me for the best part of two decades. I can’t emphasise enough what an honour it was to be asked by Les to give this speech.

Reflecting on the current state of US politics, the writer Rebecca Solnit dreamed up something she called the ‘compliant compass’ – a wonderful device that agrees that ‘north is wherever you want it to be’.[1]

You can be lost in the middle of the jungle, worrying about the crocodiles snapping at your heels and how you’ll survive. But then you remember your trusty compliant compass. You whip it out and you’re relieved to see that home is straight ahead… The best part is that it doesn’t matter which direction you walk, you’re always right. As someone with a poor sense of direction and who’s also bad with maps, this would be very reassuring. You can stride on confidently, knowing that in two shakes, you’ll be sitting in your easy chair with a nice refreshing drink.

Of course, there’s also a downside… Eventually, the happy delusion is shattered and you have to confront that you’re lost. To make matters worse, with all the frolicking you’ve had with your compliant compass, it’s now dark and the croc’s look really peckish.

We all know intuitively that there’s real danger in someone telling you, ‘Everything’s fine. You’re 100% right!’, if you’re not.

As annoying and dis-spiriting as it might be to hear in the moment, it’s far better to know that north is the opposite direction to where we thought it was when we set out for our morning stroll; it’s better to know we’re a long way from home and that it’ll be hard work to get back. It’s better to know these things because that knowledge is a precondition to formulating a realistic plan to get us on the right path.

I don’t think anyone has ever mistaken the Australian Human Rights Commission for a compliant compass. Our role is to be an independent, authoritative voice on how international human rights law applies to Australia and how to improve the protection and promotion of human rights in this country.[2]

Our independence doesn’t mean that we’re in constant disagreement with the Government. In reality, we agree on many of our greatest human rights challenges – for example, the need to address historic and ongoing inequality experienced by Aboriginal and Torres Strait Islander peoples; the importance of protecting the basic rights of especially vulnerable groups such as children; and the need to strike the right balance between competing rights.

Disagreement is most likely to occur on how best to address these issues. But there’s a risk in over-emphasising that disagreement, because it can blind us to the very real opportunities to work cooperatively and to find practical compromise that allows incremental improvement in human rights protection.

I say all this by way of introducing the subject of my Austin Asche Oration: making detention safe and humane. Here in Darwin, I know you know a lot about this subject already.

In November, the Royal Commission into the Protection and Detention of Children in the Northern Territory will deliver its findings and make recommendations about how to improve the system. Given the evidence that the Royal Commission has already heard, it seems likely that we will be shocked anew.

Some of the statistics revealed in the Royal Commission’s Interim Report are a source of outrage and shame:

• that the Territory has the country’s highest rate of children and young people in detention and engaged with child protection services;
• that 94% of children in the Territory’s detention system are Aboriginal;
• that 89% of children in out-of-home care here are Aboriginal; and
• that some of these statistics are getting worse, not better.[3]

We also know that statistics can be cold and clinical, and that behind the numbers are real people. In some ways, Dylan Voller has become the public face of young people who are detained. While I don’t want to add to the inordinate public commentary on his particular situation, I do think it’s useful and important that we look at specific individuals; that we hear from them directly; that we treat them with dignity and respect.

I’d like to pause briefly to make some comments about what this means to me.

First, there’s a danger in setting policy in reaction to extreme cases that are not representative of a broader phenomenon. While statistics might be cold and clinical, they do help us to understand the scope of problems. Our policy response should be different if we’re responding to an isolated case of mistreatment, rather than a systemic problem, and we must be able to differentiate between the two.

Secondly, in considering the experiences of individuals – especially young and otherwise vulnerable people – there’s a risk that we inadvertently look at them as specimens in a zoo. The attention of public figures and of the national media has a real and potentially massive impact on people. That impact can be negative, particularly if the individual doesn’t have adequate support and assistance in dealing with the glare of public spotlight.

Thirdly, human rights are not about vindicating the rights of heroes. Too often, especially when we discuss human rights issues, we try to force individuals into some kind of caricatured role – as either a saint or a sinner. If a child’s basic human rights are violated, it should be irrelevant whether the child is rich or poor; a good or lazy student; or whether the child had a history of encounters with the police.

As an advocate for human rights, I know that emphasising the positive qualities of a child whose rights were violated plays on our heart strings. It heightens our sense of injustice. But we can’t lose sight of an important principle: human rights don’t apply only to angels, and our rights are not contingent on us behaving angelically.

The nature of Australia’s detention problem

How should we characterise Australia’s detention system?

We should start by understanding how people end up in detention in the first place. In other words, whom do we lock up, why do we lock them up and for how long?

There’s a growing understanding that many of our policies at the ‘front end’ of the justice system cause over-incarceration. That is, we’re locking too many people up, especially for relatively minor offences. They’re detained for too long and opportunities for rehabilitation are being missed. And the correlation between high rates of detention and high levels of socio-economic disadvantage cannot be ignored.

The policy settings in Australia that produce these results have been heavily influenced by the United States. But over the last 5-10 years, US policy makers are starting to re-think. And, intriguingly, some of the strongest push for change in this area isn’t coming from the political left. For example, conservative voices like Newt Gingrich have taken the lead in identifying the counter-productive impact of high incarceration, and are pushing to reverse the ever-increasing growth in the prison population.[4] If we understand better what causes people to be sucked into the criminal justice vortex, and we seek to address those causes, we’re more likely to build a safe and more harmonious community.

The first green shoots of change can be seen in Australia too. For instance, the increasing application of justice reinvestment strategies with an explicit goal of reducing incarceration. Logically, changes like this will help us reduce the number of people we detain. But I’m realistic enough to accept that there’s a strong, abiding consensus that relatively large numbers of people will still be detained in Australia – in places as diverse as prisons, youth detention centres, mental health facilities, immigration detention and elsewhere.

So, that means we must turn our attention also to how we as a community treat people in places of detention. In my view, problems in how we treat detainees in Australia are rarely the result of a deliberate policy to do systemic harm. Instead, these problems tend to arise from policies and practices that are simply inadequate.

They’re inadequate in the sense that they don’t do enough to protect the basic rights of people in detention. Too often, this allows small problems to be left unaddressed, and then to fester. Examples include:

• inadequate protections of vulnerable detainees;
• insufficient safeguards to protect against and correct mistreatment by detention centre staff; and
• practices that needlessly put detainees at risk.

Let me give an example. Before coming to the Commission, I worked at the Public Interest Advocacy Centre, which has a particular focus on people with disability and people in detention.

Some of those causes still haunt me. One involved a young man – I’ll call him John – who had a psychiatric condition. John’s most violent crime was robbing a service station worker of a packet of cigarettes

John entered prison with a clear diagnosis and treatment plan. The prison authorities did not dispute the diagnosis, but they insisted on undertaking their own medical assessment.

John waited. Days passed. Still no medical assessment was completed.

Eventually, after more than a week, John had a psychotic episode and threw himself off a ledge. He sustained horrific injuries. John will never be able to walk properly again; he’ll never be able to work; he’ll live with constant pain. His mum also lives with the constant fear that she won’t always be around to help John in the way that only a parent can.

In prison, John should have been safe. And part of my point is that no-one deliberately set out to hurt him. But more insidious and subtle failures of policy and practice contributed to his being serious harmed. The urgency of his medical assessment, or of his receiving his medication, was never considered when John was being absorbed into the prison population.

Protecting the rights of detainees

We are daily assaulted with bad stories about what happens in places of detention in Australia. But I want to offer some hope.

The story starts with the federal Government’s decision to ratify and implement a treaty known as the Optional Protocol to the Convention against Torture or OPCAT. The Government is committed to take the key legal step of ratification by December.

OPCAT is an unusual treaty in that it creates no new substantive rights. Yet it could be the single most positive development this decade in improving conditions in all Australian places of detention.

What this treaty will do is to enhance how independent bodies inspect places of detention in Australia. The idea is to identify and address problems before they escalate into serious mistreatment and worse.

In other words, OPCAT takes a preventive approach. Through regular and unannounced visits, the problems in places of detention will be more rigorously identified. And then, through an ongoing and consultative dialogue with those in charge of detention facilities, these problems should be addressed.

Australia will be required to establish what is known as a National Preventive Mechanism (or NPM) – essentially a network of independent Australian monitoring bodies that proactively go into places of detention to identify practices that could be in breach of human rights, and work with Australian governments to fix them. The United Nations will also be able to send a monitoring team to Australia – most likely, once every 8-10 years – to inspect a small selection of detention facilities.

We should be under no illusions about the scope of detention problems in Australia. Countless reports say we need to improve conditions of detention. Horrifying images, such as those broadcast last year from the Don Dale Youth Detention Centre, show we must act now.

Towards practical change

I think it’s important to acknowledge that places of detention are challenging environments. They are places of punishment and deterrence but also of rehabilitation. The tension between those aims can make it more difficult for human rights to be protected.

The power imbalance between those detained and those responsible for detention increases the risk of breaches of human rights. This is particularly true when we consider the risk of torture and mistreatment.

Persons with disability are especially at risk. Prisons tend to exacerbate poor health conditions and reinforce pre-existing disabilities. Initial screenings may overlook disabilities and staff may not be adequately trained in responding to disabilities in detention.

In this sort of environment, problems abound. For example:

• People with disability being moved around detention systems, including in and out of prisons, with no holistic approach to their needs;
• Inadequate mental health services to meet the needs of people with disability;
• Physical and chemical restraints used disproportionately and for longer periods of time on detainees with cognitive disabilities as a form of behaviour management;
• People with cognitive disabilities disproportionately held in solitary confinement exacerbating their conditions; and
• People with physical disabilities lacking access to special equipment and facing barriers to education and recreation.

At a time where half of all people imprisoned in Australia have some form of psychosocial, cognitive or physical disability, these stories show just where the most pressing and egregious breaches of human rights are occurring in this country.

By ratifying OPCAT, Australia can also draw on the experiences of other countries to develop our own inspection regime to meet the needs of people with disability.

For example:

• the Serbian inspector conducts joint visits to places of detention with the support and expertise of disability organisations and develops disability-specific capacity building programmes.
• France’s independent inspector raised awareness of the high risk of abuse in psychiatric institutions which led to better conditions and changes to legislation in the use of isolation and restraint.
• In Georgia, the inspector conducted thematic monitoring focusing one year on the situation of persons with disability. The findings and recommendations led to the government changing correctional policy to cater to the needs of persons with disability and to ensure appropriate training was provided to prison staff.
• And in New Zealand, the inspector permitted the inspection of psychiatric facilities which had not previously been covered under any inspection regime. The NZ inspector is currently focussing on the use of seclusion and restraint across the detention environment – practices that can have a serious negative effect on detainees’ mental health.

Next steps

When he announced that Australia would ratify and implement OPCAT, Attorney-General George Brandis QC also asked the Human Rights Commission to consult with people with experience – especially from civil society – with a view to advising the Government how to make OPCAT work in a really practical, constructive way.

The establishment of Australia’s inspection regime over the coming years will require careful planning to ensure the mechanism is robust and is best able to meet the goals of preventing ill treatment for those held in places of detention. It’s likely that governments will adapt and enhance the work of existing inspection bodies – with at least one inspection body in each state and territory.

But in this design phase, it’s vital that input and consultations occur with civil society organisations to determine what people want and need. We at the Commission have just finished the first phase of our consultation, and this month we mark the start of the second stage as we speak with people around Australia about the problems in detention, and how to address them. (And I would like to pay tribute to my colleague, Sophie Farthing, who is leading this work with me.)

OPCAT has the potential to be a practical and pragmatic method of addressing many of the issues facing people with disability in detention. But that potential will be realised only if three key conditions are met:

• We must make sure that inspections are rigorous in identifying problems before they metastasise; before they become so grotesque that it is very difficult to unpick what we’ve done.
• We must use this as an opportunity to build on good culture and good practices that exist in some places of detention. The best protection of human rights – especially in an environment like a prison – is preventative. And that means having a strong culture of respect and care for detainees.
• We need for civil society to work constructively with federal, state and territory governments to identify problems and solutions, and to hold detention authorities to account.

Conclusion

History gives us all too many examples of how systems run by humane and well-meaning people can, nevertheless, produce grave injustice. The former US Supreme Court Justice, William O Douglas, emphasised the importance of vigilance to halt the sort of activity that can slide imperceptibly ever downward. He said:
As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. It is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.
 
When a person is detained – in prison; a mental health facility; anywhere – they remain human. Protecting their basic dignity is just as important as it was before they were detained. We should do it because it’s right.

But protecting a detainee’s basic rights is also in all our interests. If a person is brutalised in detention, they will be more dangerous on their release. By contrast, treating detainees humanely presents an opportunity for education, reform and healing.

Dostoevsky said that a community’s degree of civilisation can be judged by entering its prisons. And this is true.

But it’s not enough just to go inside. We need to get our hands dirty; to work within the system to make sure we live up to the standards we have set for ourselves. Ratifying OPCAT presents an opportunity to make sure that people who are detained in Australia have their basic rights respected.

We need to work constructively with government to seize that opportunity. And I look forward to working with many of you to do just that.

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1. Rebecca Solnit, The Lonlieness of Donald Trump - On the corrosive privilege of the most mocked man in the world (30 May 2017) (Literary Hub). At http://lithub.com/rebecca-solnit-the-loneliness-of-donald-trump/ (viewed 18 September 2017).
2. See, especially, Australian Human Rights Commission Act 1986 (Cth); United Nations General Assembly, Principles relating to the Status of National Institutions (The Paris Principles), Resolution 48/134, 85th Plenary Meeting, A/RES/48/134 (20 December 1983).
3. Northern Territory, Royal Commission into the Protection and Detention of Children in the Northern Territory, Interim Report, (31 March 2017), 3. At https://childdetentionnt.royalcommission.gov.au/about-us/Pages/interim-report.aspx (viewed 18 September 2017).
4. Newt Gingrich and Van Jones, ‘Prison System is failing America’, CNN (online), 22 May 2014. At http://edition.cnn.com/2014/05/21/opinion/gingrich-jones-prison-system-fails-america/index.html (viewed 18 September 2017).
5. Mick Gooda, Social Justice and Native Title Report 2015, Australian Human Rights Commission, (2015).
6. Letter from William O Douglas to Young Lawyers Section of the Washington State Bar Association, 10 September 197 in Melvin I. Urofsky and Philip E. Urofsky (eds), The Douglas Letters: Selections from the Private Papers of Justice William O. Douglas (1987), 162.