Human rights mechanisms for detainees

May 22, 2010

On the first anniversary of Australia signing a key international treaty outlawing torture, an independent monitor of detention appears no closer, despite a recent surge in custodial deaths.

The final report of UN Special Rapporteur on Torture, Professor Manfred Nowak, was released in February. It identified a global phenomenon of overcrowding, prolonged isolation and high numbers of pre-trial — all key issues for Australian custodial detainees.

The report urged a human rights treaty for detainees be drafted and showed conditions of torture were invariably experienced by the most disadvantaged in society.

Nowak said “the most frequent purpose of torture is the extraction of a confession”, and that other forms of abuse involved “excessive police violence during arrest”.

He said conditions existed in most countries that amounted to inhuman or degrading treatment, including deprivation of food, water, health, education and privacy.

Nowak stressed the importance of access to justice and recommended lawyers, judges and police should receive fair pay and equal training so the law can be administered in an equitable way.

Last week, the Townsville coroner found Queensland police officer, Chris Hurley, caused Mulrunji Doomadgee’s death in 2004 and that questions remain over the effectiveness of police investigating police.

The Crime and Misconduct Commission, with coercive and extra investigative powers, has now assumed responsibility for investigating deaths in Queensland police custody, rather than it being left to the police.

But Indigenous and social justice advocates have pointed out flaws in the integrity and independence of all existing human rights mechanisms in Australia.

They also question issues beyond simply the conditions in police custody. This follows a recent spate of deaths in Western Australia and Queensland of young Indigenous men detained despite of chronic illness.

A 2009 study by UNSW Indigenous law researchers highlighted widespread disregard for coronial recommendations. This prompted legislative reforms in New South Wales requiring more accountability from state agencies.

In the last decade, the UN Committee Against Torture (UNCAT) released three reports warning Australia about laws that would heighten disadvantage and increase already disproportionate Indigenous incarceration rates.

UNCAT also warned that government investigations about human rights breaches needed to be conducted in a transparent way.

There has been a failure of mechanisms within Australia to facilitate justice or provide reasonable, timely responses to complaints about human rights abuses of prisoners. This has led to the UN being seen increasingly as an alternative.
Indigenous advocates and activists have long campaigned against the blatant lack of adherence to the 339 recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody.

Following the 2008 death of WA Aboriginal elder Mr Ward, even the corrective services minister, Margaret Quirk, publicly voiced her dissatisfaction with systemic racism she said was endemic in her department.

The Rudd government has been keen to push for Australia to be seen as a human rights defender, in lieu of the country’s grim history of human rights abuses against Indigenous people and detainees. In May last year, the attorney general signed the UN Optional Protocol on the Convention Against Torture (OPCAT).

The OPCAT makes several conditions mandatory. The implementation of a national independent monitor of detention is one condition that could address the lack of transparency that has undermined state-run investigations of deaths in custody.
Independent monitors of detention, such as WA’s inspector of custodial services, have in the past had a significant impact in reducing deaths in custody, investigating sub-standard conditions and recommending appropriate remedies.

A spokesperson for federal Attorney-General Robert McClelland said the complexity of OPCAT’s implementation was to blame for the delay in setting up the national independent monitor.

Work with state and Commonwealth departments in meeting the mandatory requirements of the OPCAT is underway, he assured Green Left Weekly, and legislation was recently introduced to parliament that outlaws torture.

Ray Jackson told GLW that dealings with the NSW ombudsman’s office and Human Rights and Equal Opportunity Commission (HREOC — now the Australian Human Rights Commission) over his years heading the Indigenous Social Justice Association had left him disillusioned with all domestic measures for investigating custodial deaths.

The ombudsman’s office never noticed authorities’ wrongdoing, Jackson said, so he had stopped approaching them on behalf of clients several years ago.

When HREOC’s social justice commissioner had specialised in custodial deaths, breaches were acknowledged, he said. But generally, he had experienced limited closure through the commission.

He cited the case of Corey Brough, an Aboriginal teen with a disability. In 1999, he was transferred from a youth detention facility to an adult prison. According to Justice Action, after Brough threatened to kill himself, he was held in solitary confinement, stripped of his clothes (apart from underwear), exposed to continual artificial light and denied blankets to keep warm. He was left to sleep on a steel bed with no mattress, and given anti-psychotic medication without proper assessment. He attempted to hang himself with his underwear.

In 2006, the UN found that Brough had been treated inhumanely and discriminated against in prison, “but the NSW government and [corrective services commissioner Ron] Woodham both ignored it anyway”, Jackson said.

Justice Action’s Brett Collins also cited the state government’s rejection of the UN finding for Brough as a further reason for the need for independent measures to ensure the protection of human rights.

Collins, a Sydney human rights activist who campaigns tirelessly against inhumane treatment of detainees, told GLW that detainees considering complaining needed to be prepared for a bumpy road.

But despite opposition to such complaints, he said, if a detainee suffering abuse does complain — and provided there is heightened attention and support around them — they will emerge stronger for the experience.

Collins’ resolve is born of surviving one of Australia’s bleakest periods of human rights violations in NSW prisons, prior to the Nagle Royal Commission, when he spent every day complaining about conditions.

Collins was caught writing a plea to the Law Society for protection from unrelenting abuse. The warden of the notorious Maitland Jail sentenced him to four months in a darkened isolation cell.

Marc Newhouse, from WA’s Deaths in Custody Watch Committee (DICWC), told GLW that, without exception, “direct action and mobilising widespread community support”, had proven the most effective means to tackle human rights violations.

“Often the state will try to tie you up in bureaucratic processes, reviews, internal reviews, etcetera, much of which lack public accountability”, he said.

“Protests, pickets, petitions, letter writing, civil action and civil disobedience”, were all methods DICWC relied on so Aboriginal deaths in custody would be taken seriously by the state, he added.

In 2002, a comprehensive report, based on primary evidence from prisoners and additional research from the DICWC and other enquiries, was presented to the UN detailing prisoner abuse.

DICWC’s report went on to inform recommendations made to the government by UNCAT, and Australian detention conditions remain under the spotlight.

Regular complaints from detainees are received by Civil Liberties Australia, mostly about “petty rules” governing conditions being wielded and changed “for no apparent reason”.

The group is appealing for detainees and advocates to come forward about parole and regulations difficulties as it promotes uniform parole systems and prison regulations.

An Australian Bureau of Statistics report in December found, in the year since the WA Liberal government came to power, the prison population had surged by 17%, worsening over-crowding and increasing Indigenous incarceration rates by 14%. Sixty percent of that figure is blamed on a doubling of parole refusals.

Bill Rowlings, Civil Liberties Australia CEO, told GLW the campaign for uniform statewide prison regulations was a bid to curb the arbitrary use of prison authorities’ discretionary powers. Parole was the one thing in a prisoner's life that kept them motivated to rehabilitate, he said.

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