Conference – Implementing Human Rights in Closed Environments, Day Two

By John Alizzi and Eva Csik
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The following is a set of reviews covering day two the Implementing Human Rights in Closed Environments 2012 Conference. Click here to read our coverage of the day one sessions.

Plenary session five: applying human rights in closed environments – practical observations on monitoring and oversight

John Alizzi

The fifth plenary session of the Implementing Human Rights in Closed Environments Conference focused on the topics of monitoring and oversight of closed environments, with four speakers addressing the topic from different but overlapping perspectives.

First, Richard Harding addressed the issue of whether Australia will sign up to the Optional Protocol to the Convention Against Torture (OPCAT), a supplement to the UN Convention Against Torture. Ratification would bring into play the international Subcommittee on the Prevention of Torture (SPT), which conducts visits to member countries and offers assistance and advice on National Preventive Mechanisms (NPM) which serve to set minimum standards of treatment.

… Australia is very unlikely to ratify OPCAT in the near future … but if it does so it will be a “paper ratification”.

Mr Harding – now Emeritus Professor in the Faculty of Law at the University of Western Australia, and formerly Inspector of Custodial Services in Western Australia – challenged those present with his opening statement: Australia is very unlikely to ratify OPCAT in the near future, he said, but if it does so it will be a “paper ratification”.

The necessity of implementing OPCAT, however, is clear both from reports such as the Australian Human Rights Commission’s (AHRC) report on its inspection of the Christmas Island detention centre, which recommended legislation be enacted setting out minimum standards of treatment of detainees, and the positive experience of OPCAT in action in New Zealand.

Mr Harding, playing devil’s advocate, voiced the main objections to OPCAT that are most often raised, which he called a list of “excuses”: the costs; the adequacy of oversight at present; the technicalities of the definition of terms used in OPCAT (“cruel, inhuman or degrading” and “detention”); and the intrusiveness of international inspections.

Each “excuse” was avidly swept aside. First, inspections are cheap and could pre-empt easily avoidable rights abuses that in the past have meant multi-million dollar out-of-court settlements draining government funds. Second, of the oversight mechanisms already in place almost none are OPCAT-compliant. Third, the terminology used is already well-known to common law in Australia. Fourth, SPT inspections take place once in a ten-year period and are sensitive to host governments.

In conclusion, Mr Harding suggested a principled, coherent approach to minimum standards are necessary protect the rights of detainees.

The number of people in immigration detention centres is expanding, as are the number of centres themselves.

Next, Catherine Branson – President of the Australian Human Rights Commission (AHRC) – spoke on the general topic and challenges of monitoring and oversight of closed environments. Ms Branson has led efforts to investigate, in particular, the system of mandatory, indefinite detention in Australia for those seeking asylum.

Such oversight has achieved important changes. Through repeated recommendations related to mental health concerns, recreational and educational activities have increased. Also, the redevelopment of very substandard facilities at Villawood Immigration Detention Centre was influenced by AHRC recommendations. Ms Branson emphasised that discussions with service providers and governments were “respectful but robust” and noted that staff are hardworking and want to do what is right. It is simply a matter of assisting them to do so.

There are, however, significant obstacles in the way. The number of people in immigration detention centres is expanding, as are the number of centres themselves. The AHRC has reported on five centres, but there are now more than 20. Sadly, the AHRC is no longer able to undertake detailed reporting on any more due to limited resources. Ms Branson lamented, that she has not been able to persuade the government that oversight and reporting are a necessary accompaniment to detention centres.

“Mandatory detention should be dismantled as a matter of urgency.”

While being a strong advocate for the positive effects of monitoring, Ms Branson suggested monitoring itself was not enough, as there are potentially very serious human rights breaches that lie in the very fact of mandatory and indefinite detention. While Ms Branson congratulated the government on its recent moves towards community detention and bridging visas, she insisted too many are still held for too long. “Mandatory detention should be dismantled as a matter of urgency”, she concluded.

John R Taylor – the Victorian Deputy Ombudsman since 2004 – next addressed the topic of mental health in closed environments. Comparing conditions now to those of five or six years ago, Mr Taylor pointed out that prisoner access to health care has improved; prisoners with mental health issues are no longer crudely classified as having a “personality disorder” (and punished for it); and a phone line to the Ombudsman has been installed in every wing of every prison in Victoria. The latter achievement has, understandably, meant an increase in complaints.

Another number that has increased is prisoners themselves – up more than 1000 since 2005. However, tellingly, the number of beds for mental health purposes has remained static. With 28 per cent of the male prisoner population having been diagnosed mental health conditions, the bed situation is clearly inadequate. In view of this shortage, Mr Taylor fears there is a risk of prisons becoming closer to 21st Century asylums than places for rehabilitation, let alone stasis.

Colleen Pearce – Victoria’s Public Advocate since 2007 – was the final speaker. The Office of the Public Advocate (OPA) is an independent body that considers itself a human rights advocacy organisation. OPA is particularly concerned with disability settings.

Through her experiences, Ms Pearce worries that interventions in particular situations may be too restrictive. She noted examples of being held and administered medicines with potentially significant side effects on the basis of a public servant’s evaluation of a person’s mental health.

Clearly, there are tricky aims to balance in disability settings, and the aim of the OPA is to provide oversight so that the balance can be improved, and the rights of persons with disabilities respected as they are assisted in various ways.

The ratification of OPCAT is a practical move that would … bring us closer to a rights-respecting culture in closed environments.

Indeed, the ability to monitor, which depends largely on a culture of accountability and the funding to enable it, was raised in all four presentations as a means to both clarify problems that exist in practice and to prevent abuses before they happen. The ratification of OPCAT is a practical move that would assist with each of those factors, and bring us closer to a rights-respecting culture in closed environments.

Plenary session six: changing culture in closed environments – what works?

Eva Csik

This session was based on the premise that changing the culture within closed environments such as prisons; police custody cells; immigration detention centres; mental health institutions; psychiatric institutions; and nursing home facilities is fundamental if a human rights framework is to be successfully implemented.

Culture of any kind – be it of a society or any group of people – both shapes and is shaped by the views and values of its adherents.

Jem Stevens – Asia Pacific Programme Officer at the Association for the Prevention of Torture, Switzerland; and Colin Allen – Associate of the International Centre for Prison Studies, University of Essex, United Kingdom, presented their thoughts on what they believe to be key requirements in changing the organisational culture within closed environments.

In Mr Allen’s opinion, the use of a human rights framework in closed environments is “ethically sound and practically useful”. Ms Stevens contends that it is about “recognising dignity, worth and rights of all people”.

Both Ms Stevens and Mr Allen believe that in order to create lasting organisational change within closed environments, there must be committed leadership and training of staff at all levels. This includes consultation throughout all levels of rank. Mr Allen suggested that while effective management requires the ability to get things done, in this instance, it first requires humanity and intelligence.

Culture of any kind – be it of a society or any group of people – both shapes and is shaped by the views and values of its adherents. This, too, applies in closed environments. As Ms Stevens pointed out, it is not only management but also the views and values of the people held or detained – as well as broader societal attitudes – which have a role in shaping the culture within a closed environment.

The limited interaction that the individuals in many of these closed environments have with the wider community may indicate that influences existing beyond the confines of the closed space are also limited. Ms Stevens pointed out that, in fact, cultural change and changing attitudes in the wider community are important drivers for change. Culture-change initiatives can, in fact, only go so far as to reflect the wider outside world.

“Good prisons take a long time to develop and no time to crumble”.

Successfully implementing change anywhere is not a quick and easy process. This task is especially difficult when it involves changing the way people fundamentally think. Ms Stevens and Mr Allen agree that there is no overall band-aid solution. No one plan of action will work everywhere. Successfully implementing a human rights framework means that each location will require a tailored plan of action that fits the specifications of that particular environment. Most importantly, ongoing evaluation is key, as Mr Allen noted: “Good prisons take a long time to develop and no time to crumble”.

Parallel session seven: exploration of practical observations and culture change – psychiatric settings

Eva Csik

This session focusing on psychiatric settings began with a presentation by Dr Ruth Vine – Chief Psychiatrist of Victoria under the Mental Health Act 1986 – detailing the current situation of psychiatric care in Australia. An open discussion followed. One of the main points of the presentation was that psychiatric care in Australia has, in recent years, seen a shift from less institutional to more community-based care.

Individualised care recognises treatment in the community to be the most desirable …

This shift or, more precisely, the diversification of psychiatric care, presents many challenges in dealing with policy implementation. In fact, it almost calls for a case-by-case analysis. This one-hour session unfortunately did not offer nearly enough time to engage in any kind of in-depth discussion about the issues surrounding human rights and culture change as they relate to psychiatric care. However, a number of important issues were made.

An important point brought to light was that an increasingly crucial part of culture change in psychiatric care is, first and foremost, assessing the best method of care for each individual. Individualised care recognises treatment in the community to be the most desirable as, among other things, it offers people greater comfort and privacy. At the same time, it is also understood that, for some individuals, community care is not always the best option.

… the bottom line in maintaining the desired level of care is ongoing training and strong leadership.

Engaging in an increased effort to reduce seclusion and restraint, and move to a focus on recovery-based care, was another notable direction. With adequate care and treatment, many individuals suffering from psychiatric disorders are able to improve their functionality where previously seclusion and restraint was the only option.

The parties in the session’s discussion recognised that the bottom line in maintaining the desired level of care is ongoing training and strong leadership. The importance of training staff at all levels – in addition to engendering dedicated and focused leadership – was a recurring point of discussion throughout the conference. It is clear that this is an essential aspect to the successful implementation of change in many closed environment settings.

Plenary session eight: ARC research outcomes to date

Eva Csik

The final session of the conference saw the presentation of recent research findings concerning human rights issues relating to Australian prison and immigration detention environments. Bronwyn Naylor – Associate Professor within the Law Faculty at Monash University and Chief Investigator on the ARC grant “Applying Human Rights in Closed Environments” – presented findings on human rights and respect in prisons.

The notion of respect plays a considerable role in human rights issues.

Dr Naylor pointed out that, in fact, human rights have a bearing on many of the day-to-day practices of people working and living in closed environments. The notion of respect plays a considerable role in human rights issues. Dr Naylor went on to discuss certain situations in which this is brought to light.

For example, Dr Naylor’s research has revealed that there are a number of issues surrounding family visits and contact that bring about feelings of disrespect for inmates and their visitors. In many prison environments, inmates are not able to physically touch or hug visiting family members – including their own children. Visitors are often treated with disrespect and, at times, strip-searched upon entry. Indigenous people are often placed in prisons that are “out of Country” and away from their homes, making it very difficult for family to make the sometimes long journey to visit.

Prison conditions were also raised as an issue of concern. Many prisons are overcrowded, resulting in double-bunking (whereby extra beds are placed in rooms). In addition, quite often there can be a lack sufficient heating and cooling.

… prisoners do not have access to their own medical records …

Through research, Dr Naylor also found that there are issues surrounding healthcare. The main concern here is the lack of quality healthcare – especially specialist healthcare. The fact that prisoners do not have access to their own medical records was also raised.

The issues mentioned above demonstrate the manner in which human rights and respect go hand-in-hand. Dr Naylor stated that it is not only important to ensure that prisoners are treated with a certain level of respect and their human rights are upheld – but also that prisoners themselves should in fact have access to human rights information, which in many places is not the case.

The presentation “Implementing human rights in immigration detention” was given by Tania Penovic – Deputy Director of the Castan Centre for Human Rights Law and a lecturer in law at Monash University. Many of the issues and concerns Dr Naylor discussed in relation to prisons are also very relevant to immigration detention.

Ms Penovic offered some important observations. First, public opinion and, especially, the demonisation of asylum seekers in detention are fuelled by the fact that many see incarceration in a place of detention as an indication of guilt.

… the Australian Government’s detention services contract … makes no mention of human rights …

A very important point that Ms Penovic made – that many have made and perhaps the mainstream media should be making more of an effort to make – is that asylum seekers are not criminals. Key immigration detention values strongly relate to human rights law. Ms Penovic finds it troubling that the Australian Government’s detention services contract (which it has with Serco) makes no mention of human rights, nor is there any facility for independent audit.

The research findings presented by Dr Naylor and Ms Penovic show that Australia still has a long way to go in ensuring that people are treated with respect and dignity and that human rights are upheld in all closed environments.

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