Citizens Inside: Dr W Jonas AM (2000)
Aboriginal and Torres Strait Islander Social Justice
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"Citizens Inside"
Keynote presentation
by Dr W Jonas AM Aboriginal and Torres Strait Islander Social Justice
Commissioner, at the "Prisoners as Citizens" Workshop, Sydney, 27 November
2000
This morning about
20,000 Australians woke up in a prison cell. What will their day bring?
Most of you know far more about that than I do and that is precisely why
we have called upon your expertise for today's workshop.
My task is
to establish the human rights and social justice framework for our endeavours.
I know that you have received Camille Giffard's paper surveying the international
standards for prisoners and I commend that paper to you. My aim
is to bring those standards home by reminding you of some of the principal
concerns in Australia.
The Commission
The Human Rights
and Equal Opportunity Commission is an independent statutory authority
established by federal legislation in 1986. My position, the Aboriginal
and Torres Strait Islander Social Justice Commissioner, was established
in 1993 in response to the discrimination and disadvantage revealed by
the Royal Commission into Aboriginal Deaths in Custody and the Commission's
own National Inquiry into Racist Violence.
The Commission operates
essentially at two levels. We investigate and attempt to conciliate complaints
- usually from or on behalf of individuals - about discrimination and
human rights violations; and we promote awareness of and respect for human
rights in Australia.
The Commission's
human rights complaint jurisdiction is extremely limited. Although 'human
rights' is a broad canvas - encompassing the International Covenant on
Civil and Political Rights and the Convention on the Rights of the Child
in particular - there are significant constraints on the Commission's
capacity to ensure their protection. Complaints can only be accepted where
the Commonwealth is responsible for the alleged breach. This means that
few prisoners can submit complaints about their treatment (unless, of
course, that treatment is discriminatory on the ground of race or disability
where the Commission's jurisdiction is both broader and stronger).
Further, the Commission
cannot ensure a remedy for any successful complaint and nor can the complainant
pursue the matter in any court. The only recourse is a report on the complaint
to the Attorney-General with recommendations as to appropriate remedies.
The Attorney must table the report in Parliament but the government is
under no obligation to implement the recommendations.
There are, however,
other avenues for prisoners to pursue complaints and assert their entitlements.
Later this morning, panel presenters will describe and evaluate the principal
alternative avenues for redress.
And this Commission
does not have both hands tied. This workshop is convened - with our project
partners, the Australian Human Rights Centre located within the Law Faculty
of the University of New South Wales - in fulfilment of our second suite
of functions: those by which we promote awareness of and respect for human
rights. Sometimes our policy work is more effective than the resolution
of a single complaint could ever be. I would instance our reports on systemic
human rights violations such as in the case of people with mental illness
or Indigenous children forcibly removed from their families.
I'd like to turn
now to the content of human rights of relevance to prisoners.
International
standards
The core binding
commitment of the international community - including Australia - is that
imprisonment will not be arbitrary or discriminatory and that prisoners
will be treated with humanity and with respect for their inherent dignity
as human beings. [1] In particular, prisoners will not
be tortured or subjected to cruel, inhuman or degrading treatment or punishment.
[2]
But the requirement
of humane treatment is much broader than merely the elimination of torture
and other inhumanity. It requires that no prisoner "be subjected to hardship
or constraint other than that resulting from the deprivation of liberty
[itself]". This is "a fundamental and universally applicable rule" which
"cannot be dependent on the material resources available" in the country.
[3]
The UN Human Rights
Committee, which monitors the International Covenant on Civil and Political
Rights, has indicated that the following topics are relevant to its consideration
whether the conditions of detention in any country are humane as required
by the Covenant:
whether the Standard
Minimum Rules for the Treatment of Prisoners (1957 ) [4]
and other UN standards are being implemented [5]
details about prisoners'
diet, prison sanitation, over-crowding and health care, for example whether
prisoners' diet - in terms of both quality and quantity - is similar to
that of ordinary people in the country and what is the average number
of prisoners per cell [6]
the concrete measures
taken by the responsible authorities to monitor the effective application
of the rules regarding the treatment of prisoners [7]
the system for supervising
prisons and how impartial supervision is ensured [8]
specific measures
to prevent torture and cruel, inhuman or degrading treatment [9]
whether the applicable
provisions from an integral part of the instruction and training of prison
personnel and whether they are strictly adhered to [10]
whether prisoners
have access to information about their rights and the legal means to ensure
the rules are respected, to complain if the rules are ignored and the
right to compensation if there is a violation. [11]
I trust that this
list of topics of direct relevance to compliance with our binding international
obligations establishes for you the context of the afternoon's working
group topics.
There is another
provision of immediate relevance in the Civil and Political Rights Covenant.
This is the requirement that imprisonment "shall comprise treatment of
prisoners the essential aim of which shall be their reformation and social
rehabilitation". [12] In fact the Human Rights Committee
views this requirement as based on the commitment to humane conditions
of imprisonment.
The Committee has
noted that "No penitentiary system should be only retributory; it should
essentially seek the reformation and social rehabilitation of the prisoner".
[13] Questions of relevance include:
whether there is
a system to provide assistance to prisoners after release [14]
the legislative or
administrative provisions and/or practical measures to ensure the re-education
of prisoners through teaching, education, vocational guidance and training
and work programs [15]
how convicted people
are dealt with individually and how they are categorised [16]
the disciplinary
system, solitary confinement and high-security detention [17]
whether prisoners
are free to practice their religion [18]
the conditions under
which contacts are ensured with the outside world, including family, lawyer,
social and medical services and relevant non-government organisations.
[19]
It is clear, then,
that the right to humane detention which aims for individual rehabilitation
and social reintegration is not a vague or abstract aspiration but a concrete
obligation to be implemented by a set of detailed measures. Failure to
do so is a violation of the prisoner's rights which should be capable
of an effective remedy.
In June this year
the Human Rights Committee was very critical of Australia's failure to
provide effective remedies in the event of violations of Covenant rights.
The Committee expressed its concern that:
"In the absence
of a constitutional Bill of Rights, or a constitutional provision
giving effect to the Covenant, there remain lacunae in the protection
of Covenant rights in the Australian legal system. There are still
areas in which the domestic legal system does not provide an effective
remedy to persons whose rights under the Covenant have been violated."
Australia was urged
to "take measures to give effect to all Covenant rights and freedoms and
to ensure that all persons whose Covenant rights and freedoms have been
violated shall have an effective remedy". [20]
Arbitrary and
discriminatory imprisonment
The key areas of
most critical concern to the Commission at present can now be mentioned.
The first is the problem of arbitrary imprisonment implicit in mandatory
sentencing.
Mandatory imprisonment
as imposed by law in the Northern Territory and in Western Australia is
arbitrary and disproportionate. The overriding aims are retribution and
incapacitation rather than rehabilitation. These sentences are not reviewable
by a court. These laws target particular property offences that are generally
committed by people of lower socio-economic backgrounds. They are discriminatory
in effect against Indigenous people in particular.
The Royal Commission
into Aboriginal Deaths in Custody recommended that the principle of imprisonment
as a last resort should be implemented in law. [21]
Since that time these two jurisdictions have created legislation that
makes imprisonment the only resort in defined cases and that we consider
has actually increased Indigenous over-representation - both juveniles
and adults - in correctional systems already overwhelmingly incarcerating
Indigenous people. Incarceration of Indigenous people in Australia increased
by 61% between 1988 and 1995. Over the same period, incarceration of non-Indigenous
people increased by 38%. Indigenous people are 17.3 times more likely
to be arrested and 14.7 times more likely to be imprisoned than non-Indigenous
people. [22]
Back in 1991 Professor
Richard Harding, then Director of WA's Crime Research Centre, made a proposal
which challenges us all to think outside the square. He proposed that
"a cap [should be] put on the numbers of Aborigines who can lawfully be
detained within the Western Australian prison system at any one time"
and that cap should be progressively reduced. He concluded that
"If the only
basis upon which a new Aboriginal prisoner could be received were
that another was released to make way from him, we would find not
only that the enthusiasm of sentencers for imprisonment of Aborigines
would gradually diminish but also that the serious crime rate would
not increase at all. What we know about Aboriginal imprisonment is
how great a proportion of it is for trivial offences attracting very
short sentences." [23]
Once Indigenous prisoners
are in the system we have concerns about their access to programs and
treatment, their exposure to discrimination and racial violence and harassment
and their vulnerability to depression, self-harm and suicide.
A WA study published
in 1991 concluded that, although the State's correctional system was beginning
to design prison programs specifically for Indigenous prisoners in education,
vocational training and substance abuse in particular, consultation with
Indigenous people in design and implementation was poor or non-existent.
[24]
The former Race Discrimination
Commissioner's National Inquiry into Racist Violence, which reported in
1991, received some evidence of violence and intimidation against Aboriginal
prisoners and family members in a number of prisons. The National Report
of the Royal Commission into Aboriginal Deaths in Custody noted that
"Allegations of racist
taunts by correctional officers are certainly very common. Racism can
also be manifest in the day-to-day treatment of prisoners and in the discriminatory
allocation of resources, privileges and services." [25]
The Royal Commission's
Interim Report called for prison and police authorities to establish appropriate
screening procedures of recruits for racist views.
My predecessor's
report on the 96 Indigenous deaths in custody between May 1989 and May
1996 evidences the failure to implement with full rigour and commitment
the Royal Commission recommendations. [26] ATSIC reports
a further 70 Indigenous deaths in custody from May 1996 to the end of
January this year. [27]
Evidence of inhumane
treatment and conditions
In addition to the
sometimes arbitrary and discriminatory nature of imprisonment in Australia
with all its attendant risks, particularly for Indigenous people, the
Commission has reservations as to whether conditions and treatment are
always humane as required by the Civil and Political Rights Covenant.
My colleague, the former Human Rights Commissioner, Chris Sidoti, expressed
concern about the conditions in which protection and other segregated
prisoners are held in prisons he visited this year in New South Wales.
He wrote to the Commissioner for Corrective Services concerning these
prisoners that
"Their need for
separation from other prisoners makes it difficult to provide the
range of facilities, programs and activities for them that other prisoners
may have. However, the severity and austerity of the conditions of
their confinement often amount to a double punishment."
He also expressed
concerns about so-called 'safe cells' in this State noting that the elimination
of hanging points has often resulted "in cells that are so stark and bare
as to be oppressive and inhumane" and possibly "more likely to increase
psychological alienation and suicidal tendencies through the very process
of reducing the possibilities of suicide attempt". [28]
Finally we are very
concerned about the continued, and perhaps increasing, reliance on watchhouses
and other police cells for housing sentenced prisoners at the commencement
of their sentences while awaiting a vacancy in a prison. These facilities
cannot offer - and were not designed to offer - adequate provision for
exercise, education or work. Fair enough if the time spent there is short.
But we have heard of prisoners unable to shower or change their clothes
for several days and even weeks pending transfer to a prison.
Access to appropriate
programs and services
On the question whether
programs in Australian prisons comply with the requirement that imprisonment
be humane and that the aim be reintegration, I would make just a couple
of points. It is well known that women's experience is very different
from that of men. Although - or arguably because - they constitute only
about 5-6% of Australian prisoners, women have been historically disadvantaged
by the dearth of open security beds for female prisoners, [29]
the lack of crisis units [30] and a narrower range of
somewhat gender-stereotypical education, vocational training and work
opportunities. It will be interesting to learn from you whether these
disadvantages are still problematic.
A second concern
is for elderly prisoners of which there is an increasing number. I am
aware, too, that a higher proportion of prisoners are now from non-English
speaking backgrounds than has historically been the case and a small but
possibly increasing number of immigration detainees including asylum seekers
are now being held in Australian prisons. These emerging categories of
prisoners, if I can so describe them, pose new challenges for prison services
and programs as well as for the conditions of containment.
Finally it is important
to comment on the trend towards privatisation of prisons in Australia.
Some 16% of prison beds are now privately operated. Privatisation does
not necessarily pose a human rights risk. However, it is essential to
recognise that governments - and ultimately the federal government - remains
responsible for the humane detention of prisoners in privately-run prisons.
Contracting out their containment and care cannot absolve governments
from their ultimate responsibility for ensuring and protecting the human
rights of prisoners.
Conclusion
I'd like to close
by quoting just four of the prisoners who wrote to the Commission in response
to our invitation to participate in this project.
A prisoner in WA
wrote:
"I thought of
a saying the other day that describes prison, prison-life and everything
to go with it: we are here as punishment, not for punishment. But
punishment is definitely one way of describing daily life here, especially
the treatment and the way prisoners are treated and spoken to by the
... officers. ... I accept I broke the law and therefore deserve to be
punished. But like this?"
A NSW prisoner concurred:
"Australian governments
don't give a continental about human rights. If the Corrective Services
was under the RSPCA, inmates would be able to take this department
to court every day."
A Victorian prisoner
wrote:
"I always felt
that even prisoners had rights, but no one tells you what they are."
And finally, from
another NSW prisoner,
"This is the
land that time has forgot."
I know that you have
extracts from these and other submissions in your handouts. Prisoners'
perspectives are not the only perspectives on imprisonment and prisoners'
stories are not necessarily fully-informed or unprejudiced. No one single
story or account can do justice to the reality. That is a reason for hearing
and considering as many accounts as possible and not for tuning prisoners
out. Pointing out inaccuracies is useful as a way of engaging with prisoners'
accounts but cannot discredit them. That approach misses the point that
an understanding of the way that prison is experienced is an essential
ingredient of effective program and service delivery and of genuine reform
efforts.
I am grateful that
among participants today are former prisoners, prisoners' family members
and prisoners' advocates. Serving prisoners, however, can only be present
in the accounts they have submitted. I invite you to bear those accounts
in mind as you go about your work today and I wish you an interesting,
thought-provoking and ultimately successful workshop.
1. International Covenant on Civil and Political Rights (1966), article
9(1) provides that "Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No
one shall be deprived of his liberty except on such grounds and in accordance
with such procedures as are established by law." Article 10(1) provides
that "All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person." The Covenant
can be consulted at www1.umn.edu/humanrts/instree/b3ccpr.htm
2.
International Covenant on Civil and Political Rights (1966), article 7.
3.
UN Human Rights Committee, General Comment No. 21 (1992), paragraphs 3
and 4. This General Comment can be consulted at www.unhchr.ch/tbs/doc.nsf/MasterFrameView/3327552b9511fb98c12563ed004cb…
4.
The Standard Minimum Rules can be consulted at www1.umn.edu/humanrts/instree/g1smr.htm
5.
General Comment No. 21, paragraph 5 also lists the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment
(1988), the Code of Conduct for Law Enforcement Officials (1978) and the
Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1982).
6.
Paul R Williams, Treatment of Detainees: Examination of Issues Relevant
to Detention by the United Nations Human Rights Committee (Henry Dunant
Institute, 1990), pages 48-54.
7.
General Comment No. 21, paragraph 6.
12.
International Covenant on Civil and Political Rights, article 10(3).
13.
General Comment No. 21, paragraph 10.
18.
Paul R Williams, op cit, pages 61-62.
19.
General Comment No. 21, paragraph 12.
20.
Refer to the Commission's report on the hearing which quotes the Committee's
findings and recommendations at www.hreoc.gov.au/human_rights/un_committee
22.
From Australia's third report to the UN Human Rights Committee.
23.
"Preface" to Meredith Wilkie, Aboriginal Justice Programs in Western Australia
(Research Report No. 5, Crime Research Centre, July 1991) page ix.
24.
Meredith Wilkie, Aboriginal Justice Programs in Western Australia (Research
Report No. 5, Crime Research Centre, July 1991), page 211.
25.
Chapter 25, section 6, paragraph 1.
26.
Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner,
Indigenous Deaths in Custody 1989 to 1996 (HREOC report prepared for ATSIC,
October 1996).
27.
Deaths in Custody Timeline at www.atsic.gov.au/default_ie2.asp
28.
Correspondence from Commissioner Chris Sidoti to Dr Leo Keliher dated
6 July 2000.
29.
For example, WA's only female prison, Bandyup, is maximum security.
30.
Women requiring crisis care in Queensland are reportedly transferred to
male prisons: Courier Mail (Saturday Extra) 9 September 2000, page 1.
Last
updated 1 December 2001
