The UN Convention on the Rights of Persons with Disabilities (CRPD), to which Australia is a signatory, came into effect in 2008. Its fundamental purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. It recognises persons with disabilities as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society. The Convention gives universal recognition to the dignity of persons with disabilities.

The CRPD also recognises that “disability” is created by society. People with impairments are disabled when they are discriminated against, hindered and excluded from the full range of society’s human endeavours. On the other hand, they may be enabled through participation in family, community, education, employment and play.

[There are] serious consequences of imprisonment for people with cognitive disabilities.

Disability in the criminal justice system

This view of the way disability is experienced and the poor protection of rights is nowhere more clearly manifested than in the criminal justice system. Key issues in relation to persons with mental and cognitive disability being enmeshed in the criminal justice system are: how persons with disabilities who have a right to support and services rather than punishment end up in prison; how they are treated when they are in prison and how to prevent them going back to prison. Little work has been done on these matters but they have become live questions in the past few years internationally and in Australia.

There are large numbers of vulnerable people, persons with mental and cognitive disabilities locked up in prisons every day in Australia. On any one day up to 40 per cent of the prison population (sentenced and unsentenced) will have a mental and/or cognitive disability. Over a year, the flow through the prison population of people with mental and cognitive disability is likely to be much higher, at around 60 per cent, as persons with these disabilities tend to cycle in and out of prison faster than those without disability. These figures are anecdotal, as disabilities amongst prisoners have been poorly recognised and assessed, so most jurisdictions do not have accurate figures.

International and Australian studies indicate that the prevalence of mental disorder amongst prisoners is significantly higher than that found in the rest of the population.

The Statistics in Australia

In Australia, around 25 per cent of Victorian prisoners have had contact with mental health services prior to their imprisonment, and males with schizophrenia and a coexisting substance abuse are over 12 times more likely to be convicted than males in the general population. In NSW the prisoner population has a high prevalence of mental illness. The twelve-month occurrence of any psychiatric disorder (psychosis, anxiety disorder, affective disorder, substance use disorder, personality disorder or neurasthenia) is 74 per cent amongst prisoners (86 per cent for females; 72 per cent for males) compared to 22 per cent in the general population. Excluding substance use disorder, almost half the reception inmates and one-third of sentenced inmates had suffered a mental disorder (9 per cent prisoners vs 0.42 per cent general population suffered psychosis, 22 per cent vs 6 per cent affective disorder, 43 per cent vs 10 per cent anxiety disorder) in the previous 12 months. This high imprisonment rate for persons with mental disorder is increasing with inmates who have previously been assessed or treated by doctors or psychiatrists for a mental disorder increasing from 39 per cent in 1996 to 43 per cent in 2001 to 49 per cent in 2009. An increasing proportion of prisoners are reporting having been admitted to a psychiatric unit previously: from 13 per cent in 1996, to 14 per cent in 2001, to 16 per cent in 2009. These growths may be due to poorer reporting in previous years, but whether this is the case or not, the figures overall indicate an increase.

[Y]oung people with disability are being caught in the grip of the criminal justice system early in their lives.

Assessments amongst the juvenile justice detention and community populations suggest even higher rates of mental health problems: in NSW most young people in the juvenile justice system (78 per cent) drink alcohol at risky levels; two-thirds (65 per cent) use drugs weekly prior to custody; over half (60 per cent) have a history of child abuse or trauma (81 per cent young women, 57 per cent young men); nearly all (87 per cent) have a diagnosed psychological disorder.

Cognitive disability

For the purposes of discussion regarding people with cognitive disability (CD) in prison, a range of cognitive impairments are covered. CD includes persons with: intellectual disability (ID) that is below 70 IQ; borderline intellectual disability (BID) that is between 70 and 80 IQ; and acquired brain injury (ABI) that results in significantly reduced cognitive functioning. These are different disabilities from mental illness and must be recognised as such. Internationally and in Australia it is reported that persons with CD, in particular persons with BID and ABI, are over-represented in prison.

Again the rate of detention of young people with CD is higher than that of adults. In a survey of juvenile offenders in NSW, 17 per cent had cognitive functioning scores consistent with a possible intellectual disability. Remarkably 74 per cent scored below the average range of intellectual functioning, compared to 25 per cent from the standardised sample. In the most recent juvenile justice survey amongst those in custody, 13.5 per cent of the young people had an IQ of less than  70 with a further 32 per cent having an IQ between 70 and 79 (BID) compared with less than 9 per cent of the general population.

As there is a high rate of graduation from juvenile justice to adult corrections, young people with disability are being caught in the grip of the criminal justice system early in their lives.

The positive results of having a social justice and rights approach can be seen in persons who become clients of the state disability service.

The serious consequences of imprisonment for people with cognitive disabilities are: entrenchment within a culture of criminality due to the tendency of those with CD to want to be accepted by their peer group; vulnerability to assault and mistreatment in the mainstream prison environment; and readjustment problems post-release as people with CD inherently have impaired adaptive skills. Persons with BID face particular difficulties. They are not recognised in the community as having a disability for the purposes of receiving support and assistance from the state disability service, but as just noted they are significantly over-represented in the juvenile and adult prison populations as a consequence of their poorer cognitive and social functioning.

But most persons with mental or cognitive disability in prison do not experience just one disability; they experience a number and almost all come from disadvantaged families and communities.

Persons with multiple disabilities

The findings of a research project on persons with mental and cognitive disability in the criminal justice system led by the author has highlighted the compounding and negative cumulative effects, for persons with disabilities, of having multiple disabilities and disadvantages (often referred to as “complex needs”). It has also highlighted the almost universal lack of recognition of these persons’ rights to have community based disability support and services when younger and even once the disabilities are identified.

Persons with complex diagnoses and disadvantages have significantly earlier police encounters, higher juvenile justice involvement, and more offences, convictions and imprisonments than persons with a single diagnosis and those with no diagnosis. Persons with CD in combination with any other disability have the highest rates of criminal justice involvement both as victims and offenders. Their offences though are almost all in the lowest 10 per cent of seriousness. Persons with complex disabilities have experienced very poor school education; high rates of having been in juvenile detention or on orders; and low disability service recognition and support. They rely heavily on social housing but have a very high tenancy failure rate due largely to being re-incarcerated and recurrence of mental disorders.

The positive results of having a social justice and rights approach can be seen in persons who become clients of the state disability service. Only one quarter of those with ID and virtually none of those with BID functioning have been clients of the state disability service. Of those clients of the disability service, 79 per cent became clients only after going to prison. Those becoming clients after going to prison fare significantly better than previously, especially in regard to stable supported housing, and much better than their peers who are not disability service clients.

Conclusion

The pathways for people with complex disability from an early age into ongoing enmeshment with the criminal justice system and imprisonment that emerge from the analyses above suggest an abysmal failure on the part of government, and government services to afford many persons with complex disabilities and disadvantages their rights to support, respect and dignity from childhood. By far the majority of persons with mental and cognitive disabilities who end up in prison are there for offences of low seriousness, usually to do with their poorer cognitive capacity. They should have been enabled to live fulfilling lives from childhood. As is their right.

Eileen Baldry is Professor of Criminology at the UNSW School of Social Sciences. She has published widely on social justice issues over the past two decades.  Read more about her current and many recent research projects here.

Right Now’s Adelaide Rief spoke with Georgia Davis, Amy Sinclair and Stefanie Schweiger, students at ANU College of Law who have been a part of the Prison Issues Project, an initiative of the College’s Law Reform and Social Justice program.

Right Now: It would be great if you could start by explaining a little bit about the ANU Prison Issues Project and the legal literacy project.

Georgia Davis: The legal literacy project is an intensive program where law students educate detainees of the new ACT human rights-compliant prison, the Alexander Maconochie Centre (AMC). Each week we discuss and debate issues pertaining to the detainees. These issues include prison legislation, human rights and legal procedure.

How did you get involved with the Prison Issues Project? Have you always been interested in working in the area of prisoners’ rights and social justice?

Amy Sinclair: By the start of my third year of law, I was starting to feel like I had enough of a　grounding in the law to be able provide meaningful help to those in need. I was particularly drawn to the Detainee Support Program initially out of a natural curiosity – I drive past the prison all the time and often catch myself wondering what goes on behind the fences and brick walls. But it is what kept me coming back that surprised me the most – the genuine connection that we made as a group with the prisoners, and a real desire to explore their increasingly candid insight into the tail end of the criminal justice system.

Stefanie Schweiger: Prisoners’ rights is a very niche area so I wouldn’t say that I’ve always been interested. But, having become so appreciative of the men I’ve worked with in the AMC and their interest in the program has definitely encouraged and maintained my interest and future involvement in the prison. I feel, as I’m sure all the participants do too, incredibly lucky to be part of a project like this.

Alexander Maconochie Centre (AMC)

Has the Prison Issues Project changed in scope and focus since you started there two years ago?

GD: The legal literacy project has developed in a very organic way. Originally just three students visited a ‘Sentenced Unit’ and the topics they discussed ranged from the rules which directly govern incarceration through to Gough Whitlam’s dismissal! The content of each session is usually based on ideas expressed or questions detainees have asked in previous sessions. The organic nature of the program is important. It allows us to create a true feeling of mutuality, so we can demonstrate we are genuinely interested in the detainee’s ideas and are not simply preaching. However, part way through last year we decided it was time to develop a clearer vision for the project, so a small team of students and lecturers underwent an extensive strategic planning process where we worked to develop the following vision statement:

Breaking down barriers, empowering participants and fostering meaningful dialogue. Cultivating empathy, self respect and self awareness.  Equipping participants with the skills and self confidence to become leaders and teachers themselves.  Achieving these goals through discussion of the law and legal issues.

We also discussed potential longer term, bigger picture implications or extensions for this project. We identified a key constraint to prison system reform is the public’s perception of convicted criminals. As such, we hope to host academics and other professionals from the corrections field for public talks regarding prison issues. We wish to report on our experiences and insights from the legal literacy program to demonstrate the problems with incarceration in the ACT, the needs of detainees who demonstrate genuine interest in their own rehabilitation, and to counter the general perception that criminals are simply bad people and that it’s a good thing they are locked up.

Did you face any obstacles running the program in such a heavily controlled environment?

GD: The most significant obstacle we faced actually regarded the prison administration.  Sometimes we would arrive at the AMC at nine am but would only be taken down to the programs area one or two hours later because there were no available staff. The programs area was a comfortable learning environment with good natural light, enough room for a group of twenty, and a white board.  To the credit of the students and lecturers facilitating the program, the same group of prisoners came to nearly every session (even though occasionally we were two hours late), which allowed us to develop a holistic six-week program and to build on learning from previous sessions.

The only image I had in my head of a prisoner was from TV dramas.

What were the reactions of staff and officers to the program – were they positive or wary of the aims and outcomes of the project?

GD: Some of the prison officers were very enthusiastic about our program, and others regarded it with a degree of caution.  Their primary concern seemed to be that our program would teach prisoners about their rights and that they would begin to assert/demand these rights in a manner which would make them difficult to manage. There were also concerns we were there to teach the prisoners how to exploit legal loopholes. Although we did teach prisoners about their rights and responsibilities, we also discussed the extensive discretion that prison officers can exercise to ensure that justice, security and good order in the AMC is maintained. We chatted with various prison officers to explain the objectives and limits of the program to try and allay their concerns, as without their support, we would not be able to run the program.

SS: What’s important for us is to keep our program going because nothing sways minds like a strong program that is doing good things for the community, students and men and women inside.

I understand you are campaigning for the legal literacy project to be extended to the female prison. Can you tell me a bit about this?

AS: The Women in the AMC Initiative is very much in its infancy. Our ultimate goal is to extend access to the program currently being run in the male side of the prison to the women currently incarcerated in the AMC. Unfortunately, it’s not simply a case of copying and pasting the structure and materials from past iterations of the program. Surface issues to address before we can design a useful program include: there are far fewer women detained in the ACT than men (often fewer than ten), and security classifications are mixed (i.e. women on remand v sentenced prisoners).

SS: Then consider that 98 per cent of women in prison have experienced physical violence or abuse, and 89 per cent have experienced sexual assault or sexual abuse. For over two thirds of women in prison, the sexual assault started when they were below ten years old. Most have grown up in families in which they are not valued. Over 60 per cent were wards of the state. Most have entered into abusive relationships which reinforce the world they experienced as children.  Evidently, there are huge issues with something like this and a considerable amount of work needs to be invested into this but it definitely has to happen.

We identified a key constraint to prison system reform is the public’s perception of convicted criminals.

What was it like working directly with prisoners through the legal literacy program?

AS: To be completely honest, I was pretty nervous the first week and I could tell that my colleagues were too. We had been through a rigorous safety training program the previous week and had received some pretty harrowing advice about physical and psychological violence within the prison. The only image I had in my head of a prisoner was from TV dramas, so I expected to greet a room full of enormous guys in orange jumpsuits with tattooed eyeballs and bad attitudes. I was blown away to instead meet a group of ordinary guys who I wouldn’t think twice about sitting next to on the bus. What surprised me the most I think was the degree of intellectual engagement they brought to each discussion, and the extent to which they were willing to share their personal experiences of the court process and life within prison. They had a really perceptive insight into the underlying social and economic causes of crime, and were willing to explore new ideas and adopt the new ways of thinking about the interaction of human rights and the criminal justice system that we tried to introduce.

The big lesson here was that fundamentally we’re all just a few poor decisions away from their situation and it helps to remember that just because a person has been convicted of a crime, it doesn’t change the fact that they are still ordinary people with mortgages, families, ambitions and personal philosophies.

GD: For me it was incredibly rewarding and fun. The prisoners who took part in the program were almost always engaged and interested in the issues we discussed, and they offered opinions and perspectives that completely surprised us.

In one session, we were discussing the various purposes of sentencing, and we had the prisoners decide what sentence Justice Einfeld (the NSWSC judge who was caught speeding then committed perjury) deserved. One group thought he deserved a fine because everyone makes mistakes and lies to get out of trouble; another thought he should have been given community service because this would teach him he is not above the law. Another group thought he deserved significant jail time because he was a judge, he dispensed the law and the community trusted him. His betrayal of that trust deserved severe punishment.  At that moment, the concept of discretion – which had been discussed extensively in a previous session – clicked with a number of detainees.

Has working on the Legal Literacy Program changed your perspective regarding the efficacy of the justice system for prisoners?

GD: There are no work programs within the AMC and a number of prisoners said they would like the opportunity to further develop skills as having a full time job to keep them occupied is crucial to prevent them reoffending. While it can be difficult for people with a criminal record to obtain employment, it becomes a lot harder when their skills are years out of date.

What is your view on the most urgently needed reforms to address prisoners’ rights in Australia?

GD: I think policy and prison management needs to be much better focused on prisoner needs. The transition from the prison environment to the real world must be as smooth as possible. This means having access to education or training in the prison, having better access to case workers, the capacity to immediately begin some form of employment and immediate access to Centrelink upon release. Without this, there is a high chance they will reoffend soon after leaving prison; some prisoners were quite up front about this.

Another obvious answer is a well managed needle exchange program. The levels of infection transmitted by shared needle use in prisons is insane.

Would you recommend the experience to other law students? How do you view the benefits of the program to both students and prisoners at the AMC?

GD: I think the program was tremendously useful for all of those involved.  The program was a place where detainees could think about and share their thoughts on the legal system that has played such a massive role in their lives.

AS: I can’t recommend the program highly enough for students looking to put their fledgling legal skills to good use!

SS: Working with the men in the AMC has been an absolute privilege. It has been the most worthwhile experience of my law degree thus far.

We are interested in stories about race – whether that be racial discrimination or racial inclusion. Have you ever experienced racism? Is Australia a racist country? We’d also like to see a history of immigration legislation in Australia, or an article about ethnic minorities and language rights. What is the right to culture – who owns cultural rights, an individual or a community?

21 March 2012 is Harmony Day, as well as the International Day for the Elimination of Racial Discrimination. What does it mean for us all to “get along?” Is tolerance enough?

For more story ideas and background reading, please see our Themed Reading Lists page.

We publish a variety of forms including:

• Interviews
• Opinion pieces
• Reviews
• Creative writing
• Investigative journalism
• Multimedia

The pieces must be original, engaging and insightful and should appeal to and be understood by a broad range of readers. We would appreciate a brief but detailed pitch outlining ideas before a piece is sent to us. The deadline for submissions is 9 March 2012.

Articles and opinion pieces will be between 800-1,000 words, however for features or interviews up to 2000 words is acceptable, upon negotiation. For more information visit our site here http://rightnow.org.au/about/contribute/

To pitch or submit written work, including creative writing please email: submissions@rightnow.org.au. A list of potential topics relating to Prisoner’s Rights can also be obtained from the same address.

To pitch or submit images of artwork or multimedia, including film and sound please email: sara@rightnow.org.au

Anniversary is a strange word to apply to Guantanamo Bay.  Once used to mark the death of saints, we now use it to celebrate the birth of nations, people and (usually) cheerful relationships and events.  There is nothing remotely celebratory, however, about the anniversary of Guantanamo Bay; and its having remained open now for 10 years means we cannot yet speak of an anniversary marking its end.

January 11 has returned each year since 2002, more unremitting, duller each time.  The word “Guantanamo” itself means “existence of the sea,” and one is tempted to find a metaphor or two about the relentlessness of the waves hitting its shores.  Edgar Allan Poe’s “The City in the Sea” could be thought purpose-made, though its metaphors were meant for an older mythical downfall:

No swellings tell that winds may be
Upon some far off happier sea –
No heavings hint that winds have been
On seas less hideously serene.

The combination of coastal serenity and hideous confines is a confronting one.  Or so I read in a first email from Kari Panaccione, an observer at Guantanamo Bay in January 2012 as part of a contingent from Seton Hall Law School in New Jersey, just after her arrival at the naval base:

For the record – it is very, very weird here.  The combination of warm island weather and gorgeous beaches combined with the sight and knowledge of barbed wire hut-camps where torture has occurred/occurs is disconcerting to say the least.

I asked her about the experience, beginning with the proceeding she was there to observe.

RN: What are the trials taking place at Guantanamo Bay?

KP:  The trials taking place right now are military commission trials – they are done under the military system of criminal justice, with its own rules, judges and attorneys.  The trials at Guantanamo currently are for individuals that the U.S. government thinks are involved in some way with al-Qaeda or terrorism more generally.  The first of its kind involved the Australian citizen David Hicks (while the only other Australian detained in Guantanamo Bay, Mamdouh Habib, was released after three and a half years without charges ever being laid).

What trial did you observe?

KP:  I observed pre-trial motions in the case of U.S. v. Al-Nashiri.  The trial itself likely won’t happen for a few years.

What exactly is al-Nashiri charged with?

KP:  al-Nashiri is charged with planning and carrying out a few attacks on US naval ships.  Most notably, he is charged with masterminding the U.S.S. Cole attack of 2000, which killed 17 U.S. sailors.  He is also alleged to have been extensively involved with Osama bin Laden and al-Qaeda.

Outcome

What would be the result of a guilty verdict?

KP:  A guilty verdict would put al-Nashiri at risk of being executed.  The government is seeking the death penalty in this case – but whenever it does so, the court conducts an extensive sentencing hearing.  Here, al-Nashiri will be able to present a lot of mitigation evidence – ironically, the years he spent being tortured in CIA custody will probably be what prevents him from being executed should he be found guilty.

What would be the result of a not guilty verdict?

KP:  This is a very controversial issue.  Al-Nashiri’s attorneys have argued that even with a not guilty verdict, al-Nashiri will not be released from detention, as are most criminal defendants who are acquitted.  The legislation passed by the federal government permits individuals to be detained if they have connections to terrorism and present a threat to national security, indefinitely, while the “war on terror” is being waged.  Therefore the government will still justify detaining a-Nashiri, even if he is acquitted, by saying that he is a threat to national security.

Process

Who is the judge acting in the trial?

KP:  Colonel James L. Pohl is a military judge that has been appointed to preside over some military commission trials at Guantanamo.

Has al-Nashiri’s lawyer been obstructed in any way in preparing for trial?

KP: The entire context of Guantanamo presents an obstruction for defense attorneys preparing for trial.  First and foremost, the attorneys have extremely limited contact with their clients.  In-person discussions require flying down to Guantanamo and all of the time and resources that that incurs.  Mail and phone calls could be helpful, except that, as we saw in these proceedings, the attorneys can’t be certain that these communications are not being monitored by the government.  Not only could this hinder al-Nashiri’s defense, but it would likely violate the attorney’s ethical obligations to keep his client’s confidences – therefore, it simply can’t be done, and attorneys completely stopped sending their clients mail because of this issue. A lawsuit has been filed, on behalf of another detainee, on the grounds that this review violates multiple provisions of the U.S. Constitution and federal law, among other things.

Why is the mail review seen as necessary?

KP: Supposedly the mail reviewing procedure began after an al-Qaeda magazine was received by a detainee.  The government would not give details about how and when that happened, nor who was involved.  But from the government’s comments it seems that that was the only such incident where something inappropriate was sent via attorney-client privileged mail.

What other issues do defence attorneys face?

KP: There is ambivalence over the extent to which government monitors computers and whether expert evidence or witnesses are allowed for the defense.  There are unique evidentiary rules, and the defence is not able to question classified evidence.  All of these things just demonstrate the uphill battle al-Nashiri’s defense team has in front of them.  Preparing a defense for any trial is difficult – preparing a defense against evidence that you haven’t even seen, while the opposition has seen extensive details about the defense that you will be presenting, is just a ludicrous task.  Under normal U.S. court rules, the prosecution has to give the defense a good idea of the kind of evidence it will show to convince the court that the defendant is guilty.  Here, al-Nashiri’s attorneys in some circumstances are getting vagaries of the government’s evidence.  The rationale for the traditional rule – giving the defendant a fighting chance to show why the government’s evidence against him is not reliable or why it actually proves something other than what the government says it does – applies in any adversarial trial, but the rule is greatly diminished here in the name of national security.  What’s more is that the government has the ability to see details of the defense’s case.  To say that al-Nashiri is getting a “full and fair trial” is clearly undermined by this imbalance of power.

I understand there was a request that al-Nashiri’s shackles be removed for the trial.  Was this refused?

KP: I don’t know much about this situation, but al-Nashiri was not shackled at all for the proceedings at which I was present.  He was, however, accompanied by a minimum of six guards at any time.  The guards who touched him to walk him in and out of the courtroom – at least four hands were touching him during this process – wore latex gloves.  It was a bit bizarre to contrast this procedure with al-Nashiri’s relaxed demeanor and his joking around with the guards during the wait time to go in and out of the tribunal.

Are observers obstructed in gathering or disseminating information on the trial and Guantanamo Bay in any way?

KP:  Yes and no.  The simple fact that the proceedings are in Guantanamo is a huge hindrance to making the trial public.  We are allowed to observe proceedings, although much information is deemed by the government to be confidential.  While the motions that are filed are made public (after being heavily redacted, in some cases), many of those motions were not made public even up to the day of the hearing, so we observers actually didn’t have the opportunity to read them and be fully aware of what was being discussed at that day’s hearings.

What was the Commander of Guantanamo, Rear Adm. David B. Woods’ involvement in the trial?  What was his attitude towards it?

KP:  Rear Admiral Woods is responsible for the security of Guantanamo.  Security of the camp was the claimed rationale for “screening” detainees’ mail, including mail from their attorneys, a few months ago.  When they learned about this procedure, Judge Pohl agreed with al-Nashiri’s defense attorney that such conduct violated al-Nashiri’s attorney-client privilege.  Judge Pohl ordered the government to formulate a procedure that would satisfy the government’s security concerns but also respect al-Nashiri’s right to a defense.

That is how Rear Admiral Woods came to be involved in the case – he was tasked with formulating this procedure, which he did, in the form of an Order.  But he clearly was uncomfortable with either his role in the situation, or the legalities of it – I’m not sure what, but he clearly had very little knowledge of what the Order entailed and how it would be implemented.  As that is what the Judge wanted to know about, this was a problem.  The procedure involved a select team of individuals to perform a very exact “review” of the mail, but Rear Admiral Woods did not know who the individuals would be nor how exactly they would be reviewing it.  He was late to arrive, which angered Judge Pohl, and he was hostile from the beginning.

Is this trial an aberration, or will others have access to military tribunals?

KP:  Access to military tribunals will likely only increase in the future.  There has been significant progress and efforts made by the government to make the trials accessible – although this is because it was a prerequisite set by President Obama to allowing trials at Guantanamo to take place.  The Office of Military Commissions have a new motto – “Fairness, Transparency, Justice.”  They have viewing sites in the U.S. for victims and the public to observe the trials, so that everyone who is interested does not have to get security clearance and undertake a trip down to Guantanamo.  They say that they are trying to increase the viewing opportunities – but this is all progress coming from a place where there was extremely little access.  Access – including the redacting of information – is still drastically beneath that which is the norm in federal court.

Does this offer the detainees, who may be innocent, any hope?

KP:  To some extent.  The progress that has been made in the past few years on the part of the government is important and must be noted.  Much of that progress is a result of the attention and critiques the commissions have received from the media, observers and participants.  We can’t have any idea what problems exist with the commissions without this access, so as access has increased, so have the reforms, because outside observers are able to bring these issues to light and push for reform.

But the commissions still have such deep structural flaws that would need to be resolved in order for detainees to really be confident that the process would bear out their innocence. Continued and increased access would be a vital component to getting to that point.

What is your overall sense of the differences between a regular US court trial and this military trial? How are they different to civilian trials and the rights that come with them?

KP: They are drastically different.  Virtually every issue discussed at January’s proceedings would never be an issue in federal court [the reviewing of attorney-client privileged mail, the prosecutions’ involvement in defense requests for witness funding, and the defense ability to challenge classified evidence]. Moreover, the timing is unheard of.  Al-Nashiri has been in U.S. custody for 9 years, with charges filed against him only in the past few months.  Under U.S. federal law, a 9-year detention without legal procedure would be unconstitutional, to say the least.

Conditions

What are the conditions like in the camp?

KP:  I can’t really say – the only view we had of the camps was the “windshield view.”  We drove past some of them in a van and our military escorts described what they are like.  Notably, this is the first time that any NGO observers have even been driven past them.

Are conditions different for different detainees?

KP:  Yes – there are a few camps that are communal, where the detainees can roam freely throughout the common spaces and detainees’ cells.  There is one camp for detainees who have had “disciplinary” problems, and presumably the conditions in that camp are very restrictive.  No one knows what the conditions are like in Camp Seven.

What is ‘Camp Seven’?

KP: Camp Seven is the camp holding the “high value detainees” – meaning al-Nashiri and the alleged 9/11 plotters.  It is kept completely secret – it does not exist on maps, our military escorts at Guantanamo claimed to have no knowledge of where it is.  They are so secretive about its location that even when we were given the opportunity to go up to “Windmill Hill”, which overlooks all of the base, our military escort made us leave after a couple minutes of us pointing at where Camp Seven could possibly be.

Kari Panaccione is a Juris Doctor candidate at Seton Hall Law School, New Jersey, having previously studied political science, economics and French at Bucknell University.  She recently spent time studying international criminal law in Cairo and has interned with the Office of Public Defense at the International Criminal Court (ICC) in The Hague.

Report detailing raid that killed five Afghani children is suppressed by Defence Department

The Age has reported that Australia’s Defence Minister, Stephen Smith, has suppressed the report of an army inquiry into a raid that killed an Afgan man and five of his children. It is reported that the man and his children were killed when army commandos raided a farm compound based on the mistaken belief that a Taliban leader was located inside the compound. Stephen Smith’s move to suppress the report comes after promises of transparency and greater openness within the Defence Department.

The Sunday Age’s International Editor, Tom Hyland writes “A lot can happpen in a minute or so, especially in the dead of night when every second counts for armed, anxious men. A lot can happen, and a lot can go wrong.” A military judge talks of the life and death stress of combat, where there “will rarely be time for calm reflection.”

The man that was killed along with five of his children was Amrullah Khan. In court neither he nor his children were referred to by name. Amrullah Khan was referred to as “the local national”, “the afgan male” or “the fighting-aged male” and his children were simply referred to by gender and age.

It was decided that based on the Defence Force Discipline Act, what the soldiers did was not against the law. Dr Rain Liivoja, a research fellow at Melbourne Law School said “The question is whether the aim of the operation – from what I understand it was to capture someone – could have been achieved in some different way.”

Fourth Anniversary of the National Apology

Tuesday marked the fourth anniversary of the National Apology to Aboriginal and Torres Strait Islanders for injustices suffered in the past. Social Justice Commissioner, Mick Gooda, has said that National Apology to members of the Stolen Generation, “marked a point in the nation’s maturity and has helped build the momentum we now have towards becoming a truly reconciled nation.”

Australian Human Rights Commission highlights human rights issues in the proposed Stronger Futures Bills

The Australian Human Rights Commission has told the Government that it must engage properly with Aboriginal communities to implement the Stronger Futures Bills in accordance with human rights standards. The proposed Stronger Futures Bills will extend and modify measures originally introduced by the Northern Territory National Emergency Response Act 2007; the legislation that enabled the Northern Territory Intervention. In its submission to the Senate Committee Inquiry into the Bills, the Commission has identified a number of human rights issues. The Submission notes that, “the measures contained within the Stronger Futures Bills are intrusive and limiting of individual freedoms and human rights.”

The original intervention measures have been censured for failing to meet standards set by the Racial Discrimination Act and Australia’s international obligations under the International Convention on the elimination of All Forms Of Racial Discrimination (ICERD).

Social Justice Commissioner Mick Gooda has said “A top-down-one-size-fits-all approach has never, and never will, provide the solutions to the challenges faced by these communities…Aboriginal and Torres Strait Islander people must participate in decisions that affect them.”

Former Victorian Supreme and Appeals court judge, Frank Vincent, has said that Stronger Futures contains an “element of racism” whereby it “assumes that they can’t really contribute substantially to the development of policies and the implementation of policies for their improvement”

Disabled women sterilised without consent

Australian Human Rights disability discrimination commissioner Grameme Innes has raised concerns about the increasing number of sterilisation procedures being carried out on disabled women without court approval.

Christina Ryan, who works for the Canberra-based group Advocacy For Inclusion and represents Women With Disabilites Australia, recounts many distressing stories where young women and girls have been taken to hospital for another procedure and been sterilised only to find out many years, even decades later.

Disability advocates say sterilisation particularly in pre-pubescent girls can cause long-term health problems and many women struggle with the psychological impacts.

Mr Innes says strerilisation can only ever be justified when there are compelling medical reasons. Some evidence has suggested that the number of procedures being carried out without court approval is rising and that on some occasions doctors may even find informal ways to do it without gaining court approval.

Ms Ryan strongly asserts that even though arguments stating that sterilisation relieves young women and their carers from the burden of menstruation and prevents unwanted pregnancies are very common, they are not arguments that holds up.

“People should have appropriate care so that it is not a burden and that young women don’t need to have their bodies violated to make care easier” Ms Ryan said.

Ms Ryan also states that “We know that the level of sexual assault for women with disabilities is extremely high, and if this is another way to make it easy to get away with it then frankly it’s completely unacceptable.”

“So in a country like this where we know and respect everybody as equals, it seems incongruous that we could be going ahead with procedures like this.”

Blind people in Queensland must forfeit their right to a secret vote

In Queensland, blind people or those with low vision must ask a friend or polling official for help to fill out their voting form.

Queensland is trialling braille papers this election, but Vision Australia manager Karen Knight says many blind or visually impaired people don’t read braille.

Vision Australia wants Queensland to join NSW in allowing blind people or those with low vision to cast their vote by telephone or on the internet. “Other people in the community get to cast their vote completely independently and no one knows how they vote” said Ms Knight.

Guide dog refused entry

Within the span of just six hours three Wollondilly businesses attempted to deny Sue-Ellen Lovett, an Australian Paralympian entry with guide dog. Ms Lovett has filed a series of complaints with the Australian Human Rights Commision and the Wollondilly council.

Australian Human Rights disability discrimination commissioner Graeme Innes said it was unlawful for a person to refuse a guide dog entry to a public premises.

A Guide Dogs NSW/ACT study recently found that one in four people surveyed were not aware guide dogs were allowed into restaurants, hotels and clubs.

In 2004 the Australian Capital Territory (ACT) Legislative Assembly enacted the Human Rights Act, the first Bill of Rights to be passed into law in Australia. In passing the Act, the ACT Government made an overt and very public commitment to the universality and inalienability of human rights.

In essence the Act provides that no one may be treated or punished in a cruel, inhumane or degrading way: that even the worst among us have human rights that should be respected even if we have been convicted of the most heinous crimes.

In 2009 the Alexander Maconochie Centre, the ACT’s first prison, became operational.  The Government was motivated, when taking the decision to build the prison, by the opportunity to learn from the experience of other prisons in operation in Australia and to avoid the temptation, as politically enticing as it is, to employ the practice and language of retribution, punishment and demonisation.

The prison was the first in Australia to be built and operated in accordance with human rights legislation and principles. The fact it is named in honour of Alexander Maconochie, superintendent of the Norfolk Island penal colony from 1840 to 1844, a prison reformer unmatched in Australia before or since, was to be a constant reminder of the prison’s aims as a reforming institution, one which reflects a commitment to human rights and a belief in the possibility of rehabilitation and redemption.

The most recent Productivity Commission Report on Government Services, released on 31 January 2012 gives a first glimpse of some of the outcomes of the operational approach employed at the Alexander Maconochie Centre (AMC).

It reveals that the percentage of eligible prisoners employed at the AMC was 92.3 percent against a national average of 76.1 percent; the number of AMC prisoners enrolled in education and training is 92.0 percent as opposed to 34.8 percent nationally; and AMC prisoners spend an average of 14.1 hours out of cells while nationally prisoners are out of cells for 11.4 hours a day. Prisoners at AMC may also receive visitors six days a week including up until 8 pm and the crude imprisonment rate in the ACT is 68 per 100,000 while nationally it is 169 per 100,000. It is not surprising that the cost per prisoner of providing corrective services in the ACT is also the highest in Australia.

Prisoners are perhaps the last discrete group of human beings who are, in a general way, publically vilified, dehumanised and demonised within Australia without fear of censure.

These early results are very encouraging, particularly when considered in conjunction with the range and nature of programs in place at the prison. The Government, corrections and other staff have every right to be confident that the operating philosophy in place at AMC will improve opportunities for successful prisoner rehabilitation and re-integration and will reduce recidivism.  They should be supported and applauded.

The clearly accepted political wisdom is that there are no votes in prison reform or in defending prisoners’ rights. I cannot recall a single instance of a politician campaigning on a platform of prison reform while there are countless examples of politicians taking every opportunity to attack prisoners and their rights.

It has occurred to me, as I mull over this, particularly since taking the decision to construct a human rights compliant prison and experiencing the backlash it engendered, that prisoners are perhaps the last discrete group of human beings who are, in a general way, publically vilified, dehumanised and demonised within Australia without fear of censure or opprobrium.

As a nation, we have over time and at different times discriminated against or villified certain classes of people, openly and without public censure or any legal consequence. These have included Chinese and all other Asian peoples (through the White Australia Policy), as well as Aboriginals, the post World War Two migrants (particularly the Greeks and Italians), single mothers, the Vietnamese, Muslims, boat people, gays and lesbians, and Catholics and Jews.

It is, however, not currently politically, socially or legally acceptable to openly disparage or discriminate against any person in Australia on the basis of any such personal characteristic.

The same cannot be said of prisoners. They remain as a group, and without any consideration of the personal history or background of any individual prisoner, fair game not only for poll driven law and order political campaigns but more generally. It is disappointing too that when prisoners are treated with contempt and without compassion or regard for even their basic health needs even, the broader community turns its back.

I will use one current topical example:  the proposal to introduce a needle and syringe service into the Alexander Maconochie Centre.  The idea is simple. Illicit drugs regularly find their way into the prison, as they do in all prisons.  Clean needles are not available in the prison. So the prisoners share dirty needles. Most prisoners have a pre-existing drug addiction. Many, up to 65%, have Hepatitis C and it would not be unusual for some of them to have AIDS.

The evidence is incontrovertible that clean needles prevent the spread of these major life threatening diseases. It is not alarmist to suggest that at some time a prisoner at the Alexander Maconochie Centre will contract, from a dirty needle, a major blood borne disease and die from it.

Clean needles are, of course, available throughout Canberra to prevent this occurring and to protect the general community. Surveys of community attitudes suggest that well over 70% of Canberrans support the needle exchange program.

The clearly accepted political wisdom is that there are no votes in prison reform or in defending prisoners’ rights.

The ACT Government is considering expanding the needle exchange program to include the prison.

The Community and Public Sector Union (CPSU), the largest union in the ACT, represents not only prison officers and those employed at the prison but indeed all clerical staff in the Territory’s public service. It is almost certain that up to 75% of the CPSU membership, which is highly reflective of the Canberra population, supports the needle exchange program. The union, however, does not believe that prisoners, the most at risk drug users in society, should be provided with clean needles. The CPSU is affiliated to the Australian Labor Party (ALP). It is in fact the largest affiliated union and now dominates the Left faction within the ALP. It is probable that in excess of 75% of the ACT’s ALP membership supports the needle exchange program and I had always taken it as a given that the whole of the Left faction supported the program.

Yet at this stage it appears that the CPSU veto will succeed. It will succeed, disappointingly and perhaps tragically, despite three quarters of its own membership, of its faction, and of the ACT Branch of the ALP, to which it is affiliated, not agreeing with it, and thus a supposedly progressive union will succumb to a base, historic national characteristic that I had hoped we had outgrown.

Jon Stanhope is a Professorial Fellow at the Institute of Governance, University of Canberra, having stepped down after a decade as ACT Chief Minister in May 2011.  Prior to being elected to the ACT Legislative Assembly, he was an adviser to federal opposition leader Kim Beazley and chief of staff to Attorney-General Michael Lavarch.

To ask “What do prisons do?” seems at first an absurd question with an obvious answer. However, prisons and their specific functions are not universal and have changed dramatically over the course of history. Therefore it is worth considering what functions prisons should fulfil and, perhaps more importantly, whether they actually achieve them.  Broadly, the main function of prisons is to incarcerate those who breach criminal law to the extent that carceral punishment – and thus a severe intervention upon one’s liberty – is warranted. This punitive dynamic seeks restitution by denying a person certain rights. By failing to meet the standards of lawful behaviour set by the state, many of the benefits and “freedoms” provided or allowed by the state are withheld or denied. While there may be other, ancillary functional aspects to prisons and the purposes of sentencing may vary between individuals, this is the broadly accepted utility. However, while this is the general consensus that exists within society, the precise meaning and practical consequences of it are largely vague and inchoate.

There is no precise consensus regarding what specifically is included within this swag of deprivations and how far such intervention and its consequences can and should extend. Several are obvious: geographic freedom (for want of a better term) is self evident – the prisoner is incarcerated – the right to self-determination, at least while incarcerated, and the right to live beyond the forceful intervention of the state are all withheld. But what about other, less obvious rights such as the right to privacy, to internal bodily freedom, to intellectual stimulation, to sex (or to be free from unwanted sex), to one’s role as a parent, sibling or son/daughter? Does the state have the right to intervene on these matters that are either fundamental human rights or arguably exist outside of the state’s purview?

What if sentencing aims are in conflict with basic human rights – which should be given precedence?

The United Nations High Commissioner for Refugees (UNHCHR) states that prisoners should enjoy all the rights contained within the International Covenant on Civil and Political Rights (ICCPR) subject to “restrictions that are unavoidable in a closed environment”. A prisoner’s right to be treated with humanity, dignity and respect are set out in articles 7 and 10 of the ICCPR; however, these articles are subject to interpretation. What specifically, for instance, is included within the terms “humanity, dignity and respect?” What if sentencing aims are in conflict with these standards – which should be given precedence? Does protecting the human rights of a prisoner obscure or dilute the punitive purpose of incarceration? Or perhaps, as some would question, does anyone who has received a custodial sentence rightfully forgoes any access to such basic rights.

There are myriad instances where such questions arise yet we have very little capacity to consider these issues fairly.  Instead it seems the standard response is to err on the side of caution, often to the detriment of the prisoner and their family and friends. Take the experience of Melissa for example, who lost her sister, mother and stepfather within a period of five months. Her mother – a deaf mute – was in palliative care, her stepfather died unexpectedly within six hours of Melissa’s mother, on Christmas Day. Her younger brother Mathew, her only living sibling, is serving a custodial sentence. He was given a choice of either visiting the hospital or attending the funeral of his mother, but not both; no explanation of this rule was provided, despite Melissa’s inquiries.  As Melissa’s mother was deaf, mute and very ill, she had been unable to visit Mathew in prison and was unable to speak with him on the phone – she hadn’t seen him since the day he was incarcerated. Mathew chose to attend the funeral and did not see his stepfather or mother before they died. He was also not allowed to act as a pallbearer at the funeral.

Prisons are, among other things, supposed to have a therapeutic and rehabilitative function.

Mathew’s right to partake in the ritual of grief was severely restricted. Further, this apparently arbitrary rule prohibited Mathew from being able to support Melissa and fulfill his role as brother and son within his family. The consequences of such a decision resonate far beyond the individual prisoner – Melissa was forced to be the sole bearer of responsibility for arranging a double funeral and was alone in her grief.  Further, she was subject to the inflexible bureaucratic processes of Corrections Victoria in this already distressing and difficult time and was either met with bureaucratic deflection or simply ignored.

What definition of “humanity, dignity and respect” is being adhered to here? Prisons are, among other things, supposed to have a therapeutic and rehabilitative function – if such principles are not relevant in this situation, when are they? Perhaps deprivations such as these are included within the mandate of punishment. Is this what prisons are designed to do? Was Mathew’s right to partake in family grief intentionally denied, simply unavoidable in a closed environment, or an unnecessary undermining of his dignity and that of his family?

Mathew’s right to partake in the ritual of grief was severely restricted.

When discussing these issues broadly, it is perhaps easy to say that prisoners should be denied so many of the rights we take for granted. The tabloid media often run stories on taxpayer dollars being wasted on hotel-like prisons that pamper prisoners by providing them with television. Melissa’s story, however, offers a different picture.  A picture of prisoners and their families being subjected to decision-making that cannot be understood to serve the core aim of humane imprisonment for the purpose of reformation and social rehabilitation.  It can easily be understood to do just the opposite: instill a sense of resentment and distrust of public institutions and society as a whole.  Is Melissa and Mathew‘s deprivation really an unavoidable incident of imprisonment, or is it a harm that can and should be avoided in the interests of the dignity of families like Melissa’s and the health and safety of the community?  When real-life experiences are brought into view, the question ‘what are prisons for?’ becomes a serious one with practical consequences of the most intimate and important kind.

James Petty recently completed a BA (Hons) at the University of Melbourne; his thesis focused on Victorian drug policy, and specifically the Severe Substance Dependence Treatment Act 2010 (Vic), a statute allowing for the detention and involuntary treatment of substance users.

This article is part of our February theme, which focuses on one of the great silences in the human rights conversation in Australia: Prisoners’ Rights. Read our Editorial for more on this theme.

Flat Out is a Victorian state wide support and advocacy service founded in 1988 for women who have had contact with the criminal justice system. Flat Out’s vision is that women are not imprisoned; women’s rights are understood and upheld; and there is a compassionate response to personal and social trauma. The organisation leads and participates in research and community education, seeking to inform the community and other service providers about the issues that occur for women in the prison system and post-release. Flat Out works towards having a strong voice in the prison abolition movement in Australia, in the hope that eventually prisons will not be seen as a legitimate arm of the justice system, but will be viewed as an antiquated, cruel and ultimately ineffective institution.

The Centre for the Human Rights of Imprisoned People (CHRIP) is a project of Flat Out focusing on education, community capacity building, and systemic advocacy. The work of Flat Out and CHRIP builds on the intrinsic connections between service delivery and systemic social change work that has been present since Flat Out’s inception. This model ensures that the individual needs of women who are criminalised, imprisoned or recently released from prison are met alongside work to address broader structural issues such as poverty, institutional racism and violence against women.

In 2011 Flat Out published the poster “An End to Prisons” with a volunteer CHRIP working group. The poster is aimed specifically at the community sector and provides information and analysis about who is imprisoned in Victoria, the harms of imprisonment, the social and economic costs to the community, and decarceration strategies for community organisations. As a community resource, the poster is a form of creative outreach and political education providing practical and realisable strategies for change. It continues conversations about the longer-term goal of abolishing imprisonment and finding alternate responses to pressing social issues, and encourages community organisations to use their voice, knowledge and resources to educate and advocate for decarceration.

The poster was launched at the September 2011 forum, Why more prisons are not the answer to reducing crime and disadvantage; the argument for a prison moratorium in Victoria, which was organised by Flat Out, the Centre for the Human Rights of Imprisoned People (CHRIP), Inside Access, the Federation of Community Legal Centres, and Smart Justice.

Creative political education – in this example, a poster that reflects a political stance – has been described by the Just Seeds Artists’ Cooperative as “the transformative power of personal expression in concert with collective action.” Educational posters that utilise art and graphic design as campaign tools to reflect social, environmental, political and cultural injustices can inform, influence and inspire grassroots organising and struggles for justice. CHRIP’s “An End to Prisons” poster draws from the INCITE! and Critical Resistance poster depicting their 2001 Joint Statement on Gender Violence and the Prison Industrial Complex. The poster outlines critical issues of interpersonal and state violence (including criminalisation, police violence, imprisonment, domestic violence, sexual assault), and goes on to recommend concrete steps toward transformative change. Using compelling graphic design, the poster incorporates large amounts of text including positive strategies for community organising, whilst retaining artistic appeal, making it a relevant and effective tool eleven years after its original publication.

For the “End to Prisons” Poster, to complement existing research reports, journal articles and factsheets, we chose the medium of a creative, informative poster to increase the visibility of issues around imprisonment and abolition, and present information in an accessible, aesthetically pleasing format that is less likely to be shelved away and forgotten. We hoped community organisations would display the poster in spaces visible to workers and people accessing services, to spark conversation and reflection. Employing visual culture we have been able to engage people that might otherwise not be exposed to information about prisons and the abolition movement. This also draws on the history of grassroots collectives and community organisations in Victoria linking art and political posters to awareness-raising and social change, which have included posters to communicate issues of poverty, police brutality, homelessness, Indigenous land rights, and women’s rights.

The “End to Prisons” poster is available at Flat Out/CHRIP events or can be downloaded from the CHRIP website.

This article and poster were put together by the Centre for the Human Rights of Imprisoned People (CHRIP) Working Group: Emma Russell, Lorena Solin, Terri Silvertree, Liz Patterson, Rachel Barrett and Phoebe Barton (CHRIP Project Worker).

“I’ve been in and out of here since I was 10.”

These are the words of a 17-year-old Indigenous boy locked in a juvenile detention centre in Perth. He was one of ten boys participating in a 2009 United Nations youth representative consultation. Eight of these ten boys were Indigenous. Sadly this overrepresentation of Indigenous children is reflected in juvenile detention facilities nation-wide.

Herein is Australia’s neglected crisis. Data in recent years shows that the overrepresentation has become so extreme that Indigenous girls and boys are 28 times more likely to be imprisoned than their non-Indigenous counterparts.

The tragedy in this trend is that the majority of Indigenous children are imprisoned for petty, non-serious crimes. This 17-year-old boy spoke of a childhood of violence, abuse and homelessness. Eventually at age 10 he committed a petty crime out of pure desperation and was imprisoned. Seven years later imprisonment has continued to be viewed as the apparent “solution” to his ongoing deprivation and subsequent repeated offending.

Despite all the adversity he had faced, this boy still had a bright spark about him. However his sense of hope was also marred by his state of limbo: he wanted to change his lifestyle, but lacked any measure of support to be able to do so.

As Australian Youth Representatives to the United Nations, we have heard all too often stories such as this boy’s in our work across Australia. Yet we have also been inspired by the leadership shown by young Indigenous Australians in the community.

We believe that if Australians as a whole show leadership in supporting Indigenous youth, Indigenous youth leadership will continue to thrive.

2011 marked the 20^th anniversary of Australia’s ratification of the UN Convention on the Rights of the Child. This treaty sets out the binding obligations Australia has made to ensure the basic human rights of all its children and adolescents. Under articles 37 and 40, Australia has made itself bound to only arrest, detain or imprison a child as a “measure of last resort” and to promote the availability of alternatives to institutional care.

To its detriment, Australia is failing to meet its obligations under these articles. Indigenous children, more than anyone, are suffering the consequences.

In May 2011, child rights groups published a collaborative report entitled “Listen to Children“ which was taken to the UN Committee on the Rights of the Child in October of the same year. This report captures the voices of imprisoned Indigenous children and through them highlights some of the underlying causes and solutions to the crisis of Indigenous juvenile detention.

In the report, an 18-year-old boy refers to the more punitive measures inflicted by police on Indigenous children: “they don’t treat us the same as they treat other people and it’s unfair on us.” This sentiment is shared by many Indigenous youth around the country and was loudly voiced throughout our national consultations.

“[T]hey don’t treat us the same as they treat other people and it’s unfair on us.”

In youth consultations in 2009 Indigenous girls described police as “vultures, just waiting for us to do something wrong.” Similarly Indigenous children spoke of the overt harassment, targeting and violence they had been subjected to by police. One child put it simply, “out here the police act like God.”

This “over-policing” is also cited by a 2011 House of Representatives’ inquiry entitled “Doing Time – Time for Doing” as an issue affecting “the rate at which Indigenous people come into contact with the criminal justice system.” The inquiry notes that relations between police and Indigenous youth are spoilt by “attitudes of distrust, suspicion and fear.”

Australia must redefine juvenile detention as a “last resort” for children and redirect investment into a child rights-based approach to youth and crime; one which supports early intervention, counselling and mentoring, diversionary strategies and vocational and educational training.

These alternatives to imprisonment must be given serious attention in light of the inherent cracks in Australia’s juvenile justice system. As the Listen to Children and Doing Time reports suggest, nothing highlights these cracks more than the steady increase in the number of children imprisoned and the skyrocketing rates of recidivism, particularly amongst Indigenous youth. Indeed, 20 years after the Royal Commission into Aboriginal Deaths in Custody, these reports prove little progress has been made.

“[O]ut here the police act like God.”

The system is broken. Australia must employ and promote rehabilitative alternatives that enable, not risk the positive and constructive futures of Indigenous children.

Of course Indigenous juvenile crime is symptomatic of the need for more integrated and consultative implementation of funds for Indigenous child health and education. In this implementation, it is critical that Indigenous children themselves are participants in all decisions which affect them.

Our experiences as UN Youth Representatives have given us every hope that Australia can be a place fit for all its children.

The words of a 17-year-old boy, “I’ve been in and out of here since I was 10,” speak to a national crisis that will take the leadership of all Australians to solve. Together we can end that boy’s state of limbo and help him build a future.

A previous version of this article was originally published in 2011 on The Punch.

Chris Varney, Samah Hadid and Benson Saulo have served as Australian Youth Representatives to the United Nations from 2009-2011. The Listen to Children report can be viewed at www.childrights.org.au

Australian Lawyer’s Alliance warns of risk of increase in Indigenous incarceration rates

The Australian Lawyers alliance has warned that high incarceration rates among Indigenous and Torres Strait Islanders could get worse if the federal government pursues its plan to launch a second phase of the Northern Territory intervention. The legislation will expand measures introduced by the Howard Government’s NT intervention policy. The bill will increase indigenous incarceration due to its continuation of alcohol restrictions, increasing penalties for ‘grog runners’ and quarantining welfare access for parents who don’t send their kids to school.

Australian Lawyers Alliance national president, Greg Barnes, said many of the measures were regressive. Mr Barnes said the proposed laws would mean that any indigenous person found carrying alcohol into a prescribed area could face up to six months in prison and for individuals found carrying more than 1.35 litres of alcohol it could be an 18-month sentence.

Human Rights Law Centre urges Government to take action on Papua

Human rights groups have urged for observers to be allowed into Indonesia’s Papuan province to monitor the trial of five Papuan leaders facing life in prison after being charged with treason. The five men were arrested for raising the Papuan ‘Morning Star’ pro-independence flag during the Papuan People’s Congress in the Papuan capital last week.

The Human Rights Law Centre has called for Australia to raise the matter with Indonesian authorities and has said that this case once again puts the spotlight on Australia’s silence on human rights violations in the region. Currently, all foreign journalists and non-government organisations are prevented from travelling to Papua by the Indonesian Government.

Tom Clarke, a spokesperson for the Human Rights Law Centre has said that “Australia needs a new approach, underpinned by a principled and persistent commitment to human rights, to addressing conflicts in our region.”

Mr Clarke points out that while these Papuan men find themselves facing life imprisonment for raising a flag, the Indonesian military personnel who pleaded guilty to killing Theys Eluay, the elected leader of the second Papuan People’s Congress in 2000, were sentenced to three and a half years.

“Australia needs to play a leadership role in bringing the world’s attention to the problems in West Papua and supporting those moderate voices within Indonesia that support human rights and are pushing democratic reforms forward” Mr Clarke said.

Amnesty International calls for detention centre to be shut immediately

Amnesty International has called for Curtin detention centre to be closed immediately. The detention centre is located in remote north Western Australia and currently holds about 860 men. Dr Graeme Thom, Amnesty International’s Refugee Coordinator has said that there exists an ‘air of hopelessness’ among asylum seekers.

Dr Graham Thom, amnesty International’s refugee spokesman has reported that “the level of distress we have seen in these centres is a clear indicator that the policy of indefinite mandatory detention does not work”.  Mr Thom said  “We saw grown men break down in tears because of the uncertainty. This on top of fearing for the safety of their families left behind.”

The visit to the centre is the first stop in Amnesty International’s twelve day tour of Australian detention facilities. Concern has also been raised with the Perth Immigration Detention Centre, which is close to maximum capacity. “The cramped conditions of the Perth centre show that it is unsuitable for people to spend a significant amount of time there.”

Reconciliation Action Plan increase Indigenous workforce participation

Reconciliation Australia has announced that a national employment scheme has worked to increase Indigenous workforce participation. The Reconciliation Action Plan was launched in 2006 and is now being evaluated. The Action Plan has been responsible for recruiting 13,000 Aboriginal and Torres Strait Islander Australians across 280 organizations.

Tom Calma, the co-chair of Reconciliation Australia says the key has been getting employers to create opportunities. Employers have said that better training and improved cultural awareness have been critical to the program’s success.

Protecting migrant women in Australia

Australian Law Reform Commission’s final report on Family Violence and Commonwealth laws – Improving Legal Frameworks,  released by Attorney-General Nicola Roxon yesterday, recommends several immigration law reforms to allow migrants on temporary visas to stay and seek help in Australia.

The report calls for the creation of a new temporary visa which would allow secondary visa holders, such as partners of international students to stay in Australia to seek help or apply for residency and also suggesting simplifying the evidence of family violence required by immigration tribunals.

The proposals were welcomed by domestic violence and migrant services struggling with a surge in temporary migrants seeking help. Fiona McCormack, chief executive of Domestic Violence Victoria “This is a human rights issue for Australia; we have a positive obligation to provide protection to women in Australia to live free from violence.”

While the Federal Government has not indicated if it will adopt any of the recommendations in the report, Ms Roxon has said “the Australian Government takes a very strong stance on family violence and child abuse and is committed to improving Commonwealth laws to respond to this issue”.

Australian military involvement in secret prisons

Reports claim that according to a US military document, Australia was an “integral” element of the potentially illegal detention of prisoners of war at a secret Iraqi Western desert prison, codenamed H1, in 2003.

Australian military may have been complicit in war crimes by handing detainees over to the so called “black-site”. The prison was used to interrogate enemy fighters believed to hold important information. Detainees at such prisons were beaten, waterboarded, spat on and tortured.

The Defence department denied the allegations and stated that Australia was only “providing security” while detainees were being handed over. Australia has previously never been accused of involvements in any such incidents.

The Public Interest Advocacy Centre in Sydney, said the Australian government now needed to clarify exactly what it knew about H1 and other secret prisons.

Australian Defence Force to use Drones

The Australian Defence Force is phasing in the use of Drones as part of its Defence Capability Plan. The initial fleet of drones, otherwise known as UAVs (unmanned aerial vehicles) or RPAs (remotely piloted aircraft) will mainly be used for maritime surveillance. However, our special forces are already being trained to use drones in combat.

The New America Foundation’s study The Year of the Drone: An Analysis of U.S. Drone Strikes in Pakistan, 2004-2010 found that the 114 reported drone strikes in North West Pakistan from 2004 to the beginning of 2010 killed between 830-1210 individuals. Around 550 to 850 of these were described as militants which means the remaining third were civilians.

Legal restraint and even public debate about the use of drones has been previously been silenced. Drones highly endanger civilians; “this is a clear contravention of international humanitarian law, which upholds the principle of distinction between civilians and combatants”.

Company fined for dismissal of pregnant employee

A Sydney printing company has been fined more than $20,000 after dismissing a clerical worker because her pregnancy “caused a lot of inconvenience”.

The employee had taken sick leave when she suffered complications with her pregnancy and in this time, her employer allegedly hired a full-time worker to replace her.

The employee had lost her baby, and upon returning to work was given a new position doing manual labour for less pay.

When she complained to the Fairwork Ombudsman, the employee received a letter from her employer stating that her employment with the company was to be terminated.

Justice Dennis Cowdroy said the directors had “engaged in an abusive action…on the ground of gender and pregnancy” and that this was a “gross violation of their obligation under the FWA” (Fair Work Australia).

Tasmania claims it can’t afford the introduction of Charter of Human Rights

The Tasmanian Government has decided to put aside the introduction of a Charter of Human Rights because of budgetry constraints. Tasmanian Attorney-General Brian Wightman has said that work has been stalled on establishing a Charter of Human Rights because Tasmania can’t afford it. Despite Tasmania’s budget cuts other important legislation will still go ahead.

The Human Rights Law Centre’s Ben Schokman has said “Human rights are not optional extras. Experience in other jurisdictions such as Victoria and the ACT demonstrate that human rights protections in fact provide substantial economic and social benefits with minimal implementation costs”.