Human rights in action: the role of social workers in detention

Speech to Australian Association of Social Workers (AASW) Queensland State Social Work Conference
University of Queensland, St Lucia Campus – Lecture Theatre Room 234, Parnell Building
 

Acknowledgements:

• the traditional Aboriginal owners of the land, the Turrbal and Jagera people
• Australian Association of Social Workers and Professor Karen Healy AM (National President)

Introduction

My mum spent most of her career as a social worker. Sometimes, if my brothers and I were squabbling as kids, our mum would intervene. She’d start by reminding us to “respect each other’s boundaries” and then she’d encourage us to discuss with one another what was wrong, framing sentences along the lines of: “When you did X, I felt Y…”. If one of us strayed off course – usually bending the formula by saying something like, “When you ate all my dinner like a selfish brat whose ears stick out, I felt annoyed” – she would patiently bring us back to the more constructive approach.

As a device designed to make us listen more calmly to a sibling’s perspective, it worked pretty well. But as time went on, we became suspicious. Our eyes would narrow and one of us would ask, “Are you using your social work on us?” As if it were some kind of magic spell.

From the outside at least, there does seem to be something magic about social work. But it’s the same sort of magic wielded by other highly-skilled professionals, like surgeons, scientists and engineers. That is, behind a deceptively simple façade lies a huge amount of patient and persistent grunt work, based on empirically-supported technique, and a strong understanding of the people the social worker is trying to support or influence.

Social work and human rights

There are many links between social work, social justice and human rights. In its global definition of ‘social work’, the International Federation of Social Workers (IFSW) specifically adverts to “[p]rinciples of social justice, human rights, collective responsibility and respect for diversities” as being “central to social work”.[i]

Human rights – as a body of law, a set of principles and a way of seeing the world – are animated by one central concern: the protection of individual dignity. The idea of dignity can appear clinical and abstract. But it needn’t be.

We know what it looks like when a person’s dignity is threatened. As a lawyer, one of the most heart-breaking cases I participated in was an inquest into the death of a man by the name of Stephen Holcroft.

Stephen was a minimum-security prisoner who was being transported from one prison in regional New South Wales to another. While he was being transported in a prison van, Stephen started having a heart attack. Notwithstanding Stephen’s increasingly desperate screams and those of the other prisoners in the back of the van, the prison officers felt bound to follow protocol and they did not stop to seek medical attention,. Even when the officers stopped – at a hospital – to ask for directions, they did not seek medical attention. When they reached their destination, Stephen was dead.

For the majority of our lives, most of us need little help to protect our dignity. But there are times when we all do. If you have ever seen a parent or other loved one desperately ill in hospital, reliant on others for their most basic functions, you will know how even the dignity of a strong person can come under threat.

A human-rights-centred approach puts protecting and preserving people’s dignity at the absolute centre.

The AASW’s Code of Ethics describes the social work profession as ‘committed to the pursuit of and maintenance of human wellbeing. Social work aims to maximise the development of human potential and the fulfilment of human needs’.[ii]  This highlights that respect for human dignity and diversity are values at the core of social work and human rights. 

Social workers are at the coalface of human rights. You bear witness to the experiences of people whose rights have been violated and you work to prevent abuses, and to protect and empower your clients.

Social workers also have an advocacy role, not only in relation to the needs of individual clients but also with respect to systemic problems that you encounter, so that you can promote broader social change.

Social work and community legal centres

Prior to starting as Human Rights Commissioner three months ago, I worked at the Public Interest Advocacy Centre (PIAC) – one of Australia’s leading community legal centres. CLCs like PIAC have long recognised that many of the disadvantaged and vulnerable people they serve have complex, inter-related needs that go well beyond legal problems.

The only way to resolve a multifaceted problem is to address each of those facets. And so for several decades now, lawyers at CLCs have worked hand-in-glove with social workers. Take, for example, PIAC’s Homeless Persons’ Legal Service – and its sister services throughout Australia.

Social work, human rights and advocacy

Social workers and human rights lawyers tend to share a very important characteristic. We tend to be constructive irritants. (And I like to put particular emphasis on the word ‘constructive’.)

We have professional responsibilities that go beyond individual casework to improve the broader system. Our jobs also take us to places that government officials often find it very difficult to reach. While we are there, it is the most natural thing in the world to look critically at the environment and offer advice that could improve the overarching system.

I should say that, on the whole, federal, state and territory governments have long been receptive to the feedback that we provide. They won’t always follow our advice, but that’s a different matter – it’s of course entirely appropriate for governments to exercise their independent judgment on matters within their responsibility

But in undertaking this broader work, it is important to tether our advocacy to our expertise. I think we dilute our voice if we become general commentators on everything that is of interest to us.

As Human Rights Commissioner, I approach all my areas of responsibility by asking the question: how does international human rights law help us to resolve this problem?

It would be handy if international human rights law lent itself to a sort of mathematical approach to problem solving: you put in the variables and the legal answer generator spits out a result – lawful or unlawful. There are some areas – eg, war crimes – where the law really is almost this black and white.

Inconveniently, however, those areas are rare. More often, international human rights law provides a guide in how we should accommodate competing rights and interests. It reflects that, because humans are social animals, what we do generally causes us to interact. And as soon as we interact we need to find ways to compromise so that our interactions don’t impinge more than is absolutely necessary on the basic dignity of those around us.

And so, generally, the advice that the Human Rights Commission can provide is about how to strike the right balance.

OPCAT

One of my major focus areas as Human Rights Commissioner is to promote humane conditions of detention. In particular, I’ve been working on the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (known as OPCAT in the United Nations’ universal acronym lingo).

Australia has been a party to the Convention Against Torture (known as CAT) for more than a quarter of a century. OPCAT is a separate, stand-alone treaty, which came into being in 1987. Interestingly, it doesn’t create any new rights beyond those already set out in the main treaty, CAT. Instead, it’s intended to facilitate process improvements to address problems in detention before they escalate.

Australia signed OPCAT in May 2009, but we haven’t yet taken the final steps that would make it operational in Australia – namely, ratifying the treaty and then implementing it in Australia. Doing those things would involve Australia establishing what is known as a National Preventative Mechanism – essentially a network of independent Australian monitoring bodies that proactively go into places of detention to identify practices that could be in breach of human rights, and work with Australian governments to fix them. It would also enable the UN to send a monitoring team to Australia – once every 5-10 years.

The horrifying images from the Don Dale Youth Detention Centre, broadcast on Four Corners, exemplify the need for more to be done to protect the basic rights of Australia’s most vulnerable detainees. By ratifying and implementing OPCAT, these sorts of practices are likely to be identified and dealt with before they metastasise.

For instance, an OPCAT monitoring body could identify the problems with using so-called ‘spit hoods’ on juvenile detainees. This would usually lead to a conversation with the detention authority to understand better what was the aim behind this practice. In this case, there was a very understandable aim (stopping the spread of disease among the young detainees and to staff), but the monitoring body could suggest alternative practical solutions to this problem that would not be so damaging to the human rights of the young people involved.

We at the Commission are advising the federal government primarily, as well as the states and territories, on OPCAT. We hope that the Australian Government will soon announce how it will proceed.

In a recent speech to mark the 10th anniversary of OPCAT’s entry into force, the Association for the Prevention of Torture’s Chief of Operations, Barbara Bernath, described OPCAT as ‘a story of change.’[iii] The monitoring bodies not only contribute to improvement in the areas we would expect – like conditions, procedures, safeguards, legislation and policy – but also, over time, to practices and cultures in places of detention.[iv]  

Many social workers are all too aware of the particular vulnerability of people – especially young people – in detention.

Places of detention are challenging environments. They are both places of punishment and rehabilitation. The tension between those aims can make it more difficult for human rights to be protected.

Secrecy provisions in the Border Force Act

From time to time, unnecessary barriers can be placed in the way of social workers and others in undertaking the broader systemic work that is so important.

An example is Part 6 of the Australian Border Force Act 2015 (Border Force Act), which makes it an offence for an ‘entrusted person’ to make record of or disclose information obtained in that person’s capacity as an entrusted person, punishable by up to two years’ imprisonment.[v] An ‘entrusted person’ includes a broad range of Immigration and Border Protection workers providing frontline services to people in immigration detention, including social workers.[vi]  There are some free speech and whistleblower protections, but they are relatively narrow in scope.

On 30 September 2016, the Australian Government amended the definition of an Immigration and Border Protection worker to exclude health practitioners, removing them from the operation of the secrecy provisions in the Border Force Act.[vii] 

This is an important change and we commend the Government for doing so. However, social workers still appear to fall within the scope of people prohibited from disclosing this information.

In October 2016, the United Nations Special Rapporteur on the situation of human rights defenders, Michel Forst, visited Australia. His end of mission statement described the Border Force Act as ‘stifling’. He noted that no person had been charged under these provisions but raised concerns that the Act’s existence and the actions of the Australian Government toward asylum seeker advocates has had a ‘chilling effect on the disclosure of information about violations in off-shore processing’.[viii] 
He urged the Australian Government to review the secrecy provisions in the Act and ensure the effective protection of whistleblowers.[ix]  

Social work is about more than casework; it also involves advocacy. This can be seen in the work of AASW in voicing its concerns about the health and wellbeing of children in immigration detention.[x]  Social workers are uniquely placed to shed light on the experiences and needs of people deprived of their liberty.

I believe it’s important that your voices are heard when you might be able to improve the systems in which you operate. Stories of human rights in practice are vital to informing appropriate and effective policy and legislative reform.

Conclusion

Australia, much more than many countries, coheres around good, positive ideas – like the fair go. While we tend not to use readily the language of human rights, this might be partly a function of how our system has evolved.

Australia has no national bill of rights in our Constitution or in ordinary legislation. We have some specific legislation dealing with specific human rights – especially in the anti-discrimination area – but on the whole our human rights protections are ‘baked in’ to other laws.

While I see merit in considering more comprehensive human rights law protection in Australia, on the whole, the key to a society that respects human rights is not primarily in its laws. As many opponents of a bill of rights point out, there are many countries – like Zimbabwe, the Soviet Union and others – that have wonderful-sounding bills of rights, but which nevertheless have had significant human rights problems.

Part of the problem is that, after a person’s basic human rights have been violated, no legal remedy is particularly effective at addressing the affront to that person’s dignity.

And so the strongest and most enduring human rights protection lies in something less tangible: our open, welcoming culture; the respect we show to the people we encounter; and our shared commitment to protect the dignity of everyone in the community – especially those who are most vulnerable.

Footnotes

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1. International Federation of Social Workers, ‘Global Definition of Social Work’ at http://ifsw.org/get-involved/global-definition-of-social-work/ (viewed 21 November 2016).
2.   Australian Association of Social Workers, Code of Ethics (2010) 7. At http://www.aasw.asn.au/document/item/1201 (viewed 21 November 2016).
3.   Barbara Bernath, ‘Five stories to illustrate the first ten years of the OPCAT’ (Speech delivered at the 10th Anniversary Event for Optional Protocol to the Convention Against Torture, 18 November 2016). At http://www.apt.ch/en/news_on_prevention/five-stories-to-illustrate-the-first-ten-years-of-the-opcat-speech/#.WDKLGdW9vmF (viewed 21 November 2016).
4.   Barbara Bernath, ‘Five stories to illustrate the first ten years of the OPCAT’ (Speech delivered at the 10th Anniversary Event for Optional Protocol to the Convention Against Torture, 18 November 2016). At http://www.apt.ch/en/news_on_prevention/five-stories-to-illustrate-the-first-ten-years-of-the-opcat-speech/#.WDKLGdW9vmF (viewed 21 November 2016).
5.   Australian Border Force Act 2015 (Cth) ss 4, 42.
6.   Australian Border Force Act 2015 (Cth) s 4
7.   Secretary of the Department of Immigration and Border Protection, Determination of Immigration and Border Protection Workers – Amendment No. 1, 30 September 2016. At https://www.border.gov.au/AccessandAccountability/Documents/determination-workers-c.pdf (viewed 21 November 2016).
8.   Michel Forst, End of mission statement by Michel Forst, United National Special Rapporteur on the situation of human rights defenders, 18 October 2016. At http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E (viewed 21 November 2016).
9.   Michel Forst, End of mission statement by Michel Forst, United National Special Rapporteur on the situation of human rights defenders, 18 October 2016. At http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20689&LangID=E (viewed 21 November 2016).
10.   See Australian Association of Social Workers, Briefing Paper: Children in Immigration Detention (2016). At https://www.aasw.asn.au/document/item/8745 (viewed 21 November 2016).