In Praise of Independent Oversight

By Adam Fletcher

Anyone who watched the ABC’s 7.30 Report story this week on the death of a 52 year-old father who had been convicted of traffic offences in Grafton prison would have been horrified. For those who did not see it, this man was dying of a brain haemorrhage for hours while guards treated him as though he were merely trying to annoy them. Instead of calling for medical help immediately, they shoved him aside to close his cell door, then made him crawl to a different cell and ignored his pleas for help for hours. When they belatedly hauled him to the sick bay (accusing him of being unwilling rather than unable to stand) and called a nurse, he was taken to hospital, but not in time to save his life.

This was a shocking episode, but the most damning line in the story was from Brett Collins of Justice Action, an NGO working for the rights of those imprisoned or detained by the police. He said the only thing that was unusual about this man’s treatment was that it was exposed on video. Mr Collins should know – a former prisoner himself, he has been campaigning for prisoners’ rights in NSW tirelessly for more than 30 years.

Yesterday’s resignation of the Commonwealth Ombudsman was perhaps not surprising after the ill‑judged attempt to raise important issues in Senate Estimates which led to his downfall. However, as Michelle Grattan’s article on the resignation in The Age points out, “his immediate sin was compounded by the fact that Asher, in his job for only a year, had become a serious irritant to the government over its immigration detention policy.” The forceful manner in which he prosecuted his role – particularly in the context of immigration detention – certainly did not endear him to the Government.

Yes, independent oversight can be uncomfortable for governments. No one likes public criticism, least of all a government worried about its poor standing in the polls. Yet the whole point of offices such as the Ombudsman, or indeed the Inspector-General of Intelligence and Security, the Human Rights Commission and other ‘watchdogs’ is to hold the government to account, and the reason they are granted independence is precisely because they need to be free to criticise policy. There are many governments which keep a tight reign on supposedly independent human rights institutions, and believe me Australia is better off for not being in their company.

In the corrections sphere, Australia has plenty of serious problems but precious little independent oversight. One notable exception is the Western Australian Office of the Inspector of Custodial Services, which was founded in 1999 and has the challenging but crucial task of inspecting prisons, juvenile facilities and other places of detention all over WA, including in some of the most remote rural areas in the world. According to its website, the Inspector’s Office aims to contribute directly and indirectly to:

  • Improving public confidence in the justice system
  • Reducing re-offending in Western Australia, and
  • Ensuring the justice system provides value for money.

It also works towards improving standards for those deprived of their liberty, which may be a less popular goal, but can have immense benefits for society as a whole (and is obviously necessary in itself, because human rights don’t stop at the prison gates). As an example of the Office’s work, in April this year it released a report on Roebourne prison which found “cramped, rodent-infested cells, unsafe bunks and lack of air-conditioning in the harsh Pilbara heat,” prompting the State Opposition to call it a “Dickensian institution.”

Mistreatment of prisoners, like that detailed so graphically on the 7.30 Report, is contrary to Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture. Those who are locked up are at the mercy of the Government, and regardless of their criminality there is a direct obligation not to subject them to torture or cruel, inhuman or degrading treatment or punishment. Article 10(1) of the ICCPR also provides that all persons detained must be treated humanely. People who commit serious crimes no doubt deserve incarceration, but Australia deserves a detention system which contributes to their rehabilitation rather than their brutalisation. Indeed, article 10(3) of the ICCPR specifically obliges us to put in place a correctional system aimed at “reformation and social rehabilitation.” Without this, we can hardly expect that prisoners will magically emerge on release as healthy, productive members of society.

Until the 1970s, beating prisoners was considered a normal aspect of the criminal justice system in countries like Australia. In many countries, corporal punishments persist, either as sentences or disciplinary measures for detainees. Australia though, along with many other progressive nations, has moved on. Even so, reports of informal (illegal) corporal punishment and avoidable deaths in custody continue to appear in the news.

The issues to be addressed in this context are attitudes, standards and training. In 2009, Australia signed the Optional Protocol to the Convention against Torture (OPCAT) which aims to set up a worldwide network of independent oversight for prisons and other facilities where people are deprived of liberty (including makeshift facilities, prisoner transport and many kinds of closed institutions). Under this treaty, States parties are to set up bodies known as National Preventive Mechanisms.  With various relevant internationally-agreed minimum standards as a reference (as well as national standards they develop themselves), these mechanisms’ task is to inspect closed institutions regularly to improve accountability – and ultimately to improve the system to the point where physical and psychological harm is minimised.

61 countries have already become party to the OPCAT and 37 have set up their National Preventive Mechanisms;  both numbers are growing. The Australian Government announced at the UN in January that it is “committed to ratifying the [OPCAT] as a matter of priority” and is consulting States and Territories on implementation (since they are responsible for many of the facilities which would be subject to inspection). However, the intervening nine months have seen no further announcement and it has been nearly two and a half years since we signed this treaty.

No decent society should accept a stream of headlines such as “Death of traffic offender in custody in Grafton jail,” “Aborigine ‘cooked’ to death in prison van,” “Hello Devil: Shocking new Taser footage released,” “Police colluded to protect Senior Sergeant Chris Hurley over death in custody of Cameron Doomadgee – coroner.” We should all urge the Australian Government to ratify and implement the Optional Protocol as soon as possible.

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