By Julie Debeljak, Bronwyn Naylor and Anita Mackay
Protecting the human rights of people in “closed environments” is crucial because the people detained in these facilities are removed from public scrutiny. Their relative powerlessness creates a serious risk of human rights abuse by staff members and fellow detainees. Closed environments are places where people are unable to leave of their own free will. Examples include prisons, police cells, forensic psychiatric units, closed mental health and disability facilities, and immigration detention centres.
Newspapers are littered with examples of violations of human rights in closed environments, including the harsh living conditions in immigration detention centres, physical and sexual abuse in residential disability and mental health facilities, and overcrowding in prisons and the consequent alternative forms of prison accommodation (such as shipping containers).
We are developing a strategic framework for implementing human rights in closed environments. The framework outlines the minimum conditions necessary for the protection and promotion of the human rights of people in closed environments.
Currently, Australia does not satisfy these minimum requirements. For this reason, federal, state and territory governments must adopt this framework, which has three inter-linked and mutually reinforcing elements.
1. Regulatory framework
A regulatory framework, with comprehensive human rights laws, adequate remedies and an effective means of enforcement is necessary to create the right environment for human rights protection in closed environments. Such a regulatory framework must include:
a) International human rights obligations: The internationally recognised suite of human rights guarantees is at the pinnacle of the framework. This reflects the international consensus as to the basic minimum human rights obligations, and the obligations to adopt legislative and other measures to secure those rights in domestic settings and to provide effective remedies. Australia is a party to many Conventions that contain human rights protections for people in closed environments, for example, the International Covenant on Civil and Political Rights which provides that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. The Convention Against Torture and the Convention on the Rights of Persons with Disabilities also contain relevant protections.
b) Comprehensive national human rights legislation: although parliament has incorporated some aspects of some international human right treaties into domestic law, the patchwork of legal protections falls far short of full domestic implementation. Consequently, comprehensive protection of human rights is needed at federal, state and territory levels. Without a legal commitment to human rights, including effective remedies and enforcement mechanisms, protection of human rights in closed environment remains precarious.
c) Environment-specific legislation: Those general human rights protections must then be translated into detailed rights and duties specifically for closed environments. These rights and duties must be enshrined in legislation, regulations, and policy to ensure that people managing detention facilities have clear rules and guidelines to follow. Such legislation would be tailored to recognise the different aims of each type of environment.
2. Independent Monitoring
Effective monitoring by external organisations is vital for ensuring that the human rights regulatory framework is being complied with in closed environments on a daily basis. Monitoring includes investigation of complaints by people who are detained, and investigation of system-wide problems. The latter usually results in publicly available recommendations to government. Such ‘naming and shaming’ may inspire change; however, ideally the government will voluntarily respond to any recommendations.
This function is performed at the:
- international level, by the committee established under the Optional Protocol to the Convention Against Torture (OPCAT). Australia has signed but not yet ratified OPCAT and therefore this committee does not yet operate here; and
- national level, by organisations such as Ombudsmen, Human Rights Commissions, public advocates and prison inspectorates (such inspectorates exist in Western Australia and NSW). However, because of the lack of coordination between federal, state and territory agencies with different responsibilities and agendas, gaps in coverage remain. Without an overarching human rights framework, standards of monitoring will differ and most likely fail to comply with human rights standards.
3. Culture change
A human rights regulatory framework can only be put into practice if organisations change their cultures to ensure that employees show respect for human rights at all times.
It is challenging to achieve a human rights culture in these environments when there is, arguably, an absence of human rights awareness among the general community, along with community expectations that security and control must be prioritised. There are, however, a number of strategies for achieving culture change (and a number of successful examples), including ensuring that leaders promote human rights; employing ‘change agents’ who assist staff as changes take place; and providing compulsory practical human rights training to staff .
The elements of the strategic framework are inter-linked and mutually reinforcing. For example, monitoring organisations use the regulatory framework when assessing the culture in closed environments for human rights compliance. The regulatory framework also provides the basis for staff training about human rights obligations as culture change is undertaken. Because of this, all three elements are needed to properly promote, protect and respect human rights in closed environments.
As a first step towards implementation of the framework, the Federal Government must ratify OPCAT as a priority to ensure better monitoring arrangements federally and in all states and territories.
This piece is featured in the 2014 Castan Human Rights Report. You can read the full report and download a pdf here.
Publications prepared for the project, available online at the project website:http://www.law.monash.edu.au/castancentre/projects/hrce.html
(particularly the forthcoming special issue of Law in Context)
Adam Fletcher, ‘Australia and the OPCAT’ (2012) 37(4) Alternative Law Journal 233
David Barton and Susan Tait, ‘Human Rights and Cultural Change in Policing’ (Paper presented at the Human Rights and Policing Conference, Melbourne, 8-10 December 2008)
Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia(Lawbook Co., 2013)
Pace Law Review special issue ‘Opening up a Closed World: A Sourcebook on Prison Oversight’ (2010) Volume 30 Issue 5
Office of Police Integrity, Update on Conditions in Victorian Police Cells (2010)
Australian Human Rights Commission, Human Rights Standards for Immigration Detention (2013)