Published 2 March 20233 March 2023 · Human rights / Prison Ending human rights abuses behind bars Monique Hurley, Jamie McConnachie and Damiya Hayden Australia is in the midst of a mass imprisonment crisis, in which governments permit human rights abuses to thrive in the darkness behind prison walls. People continue to be pipelined into prisons at alarming rates when the evidence is clear—prisons reproduce structural inequality and undermine community safety. Unfair laws funnel staggering numbers of unsentenced people into prisons and allow for children as young as ten to be caged in prison cells. Once they are locked away, overly broad laws permit people to be tortured in solitary confinement and be subjected to state-sanctioned sexual assault by means of routine strip searches. This is despite Australia having ratified in 1989 the Convention Against Torture and being required to prevent torture and other acts of cruel, inhuman or degrading treatment in all places of detention in accordance with the human rights treaty. The Optional Protocol to the anti-torture treaty (OPCAT)—ratified by Australia in 2017—focuses on prevention and provides a framework for stamping out mistreatment by requiring places where people are deprived of their liberty to be subject to scrutiny by outside eyes. This should take the form of independent bodies undertaking inspections at the national level and an international system of visits by experts including the United Nations Subcommittee on Prevention of Torture. Just last week, in another blight on Australia’s human rights record, the Subcommittee terminated its first visit here after being refused access to places of detention last year. In its fifteen years of operation, the torture prevention body has made over eighty visits to more than sixty countries and only taken such drastic action once before. This is set against the backdrop of Australia’s review by the United Nations Committee Against Torture—the body of independent experts that scrutinises compliance with the anti-torture treaty—late last year. The Committee’s concluding observations were delivered in December 2022, detailing significant failures by Australia to comply with the treaty and the Optional Protocol. Together, Change the Record, the National Aboriginal and Torres Strait Islander Legal Services and the Human Rights Law Centre briefed the anti-torture watchdog and called for governments to end mass imprisonment by urgently changing laws that drive people into prisons and more broadly by supporting people and communities instead of the country’s prison industrial complex. The coalition also called for an end to human rights abuses behind bars and sought to do this in a way consistent with what Gomeroi scholar Alison Whittaker characterises as ‘non-reformist reforms’ that challenge the legitimacy of prisons and promote decarceration. The approach recognises the social and political imperative of replacing structurally violent, carceral systems with antiracist ones focussed on care and building communities, holding higher ambitions than tinkering at the edges to make prisons and policing less overtly destructive. Ending mass incarceration The ongoing impacts of colonisation, discriminatory laws and racist policing continue to result in the mass incarceration of Aboriginal and Torres Strait Islander people, over 500 of whom have died in custody since the Royal Commission into Aboriginal Deaths in Custody handed down its final report in 1991. To paraphrase Darumbal and South Sea Islander scholar Amy McQuire, there cannot be this many victims and no perpetrators. Governments across Australia have failed to address this injustice and ignored the central finding of the Royal Commission’s report that the primary driver of Aboriginal deaths in custody was the mass imprisonment of Aboriginal people. The Committee ‘regret[ted]’ the lack of information provided in relation to deaths in custody, and rightly criticised Australia for increasing numbers of deaths in custody linked to the over-representation of Aboriginal and Torres Strait Islander people in prisons. The anti-torture watchdog backed calls for full implementation of the recommendations made by the Royal Commission into Aboriginal Deaths in Custody, as well as the need for independent investigations of deaths in custody. In response, the Australian government delegation acknowledged that ‘a transformational change is required,’ although this is yet to be forthcoming. Concerns were also raised about the shocking number of people locked away in pretrial detention. The number of unsentenced people warehoused in prisons has soared by more than 120 per cent over ten years and at this time over a third of the prison population have yet to be sentenced for what they were arrested for. Dangerous and discriminatory bail laws are needlessly driving people into prisons. This includes Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Marie Nelson, who died a preventable death in a Victorian prison after being arrested for minor offending and refused bail. The Coroner who oversaw the inquest into her death in custody recently confirmed the discriminatory impact of Victoria’s bail laws on Aboriginal and Torres Strait Islander people and found that Ms Nelson was subjected to ‘cruel and degrading’ treatment by prison staff. The Andrews government’s bail reforms in Victoria—enacted swiftly in response to a specific incident of horrific violence—echo a national trend towards harsher bail laws driven by ‘tough on crime’ politics. We now have criminal legal systems that turbo-charge inequality, and produce and reproduce trauma. Instead of being treated as ‘innocent until proven guilty’, reverse onus provisions increasingly mandate a presumption that, in certain cases, people must not be granted bail unless they satisfy the court otherwise. More children are caught by reverse onus bail provisions and pushed into prisons in places like Victoria, Queensland and the Northern Territory. This is exacerbating a national crisis in youth prisons where ill-treatment is rife. Everyday there are fresh reports of disturbing treatment. Children sexually abused in NSW and Tasmania. Children detained in police watch houses in Queensland and South Australia. Children locked away in adult prisons in Western Australia and Victoria. Australia’s review was set against the backdrop of this and ongoing mistreatment of children in prisons—Banksia Hill in Western Australia, Don Dale in the Northern Territory and Ashley in Tasmania. These prisons must be shut down. The anti-torture watchdog raised particular alarm about the use of solitary confinement on children caged in these prisons, and also about Australia’s very low age of criminal responsibility. The Committee called for all governments to ban the barbaric use of solitary confinement on children, and joined the chorus of calls to raise the minimum age of criminal responsibility. Children belong in schools and playgrounds, never in prison and police cells. Working towards a future without youth prisons starts with raising the age, with no cops and no carve outs. While the Northern Territory is set to raise the age to twelve this year, international human rights standards, medical science and criminological evidence are clear that fourteen is the absolute minimum age at which children should be held criminally responsible. In line with this, the lead being taken in the ACT and advice from justice departments across the country, governments must raise the age to at least fourteen years old as a matter of priority. Preventing torture behind bars Prisons are hotbeds for human rights violations. They are brutal, unforgiving places where the closed environment and power imbalance between incarcerated people and prison staff mean that mistreatment can be frequent and unchecked. Particular concerns about arbitrary practices were raised during Australia’s review, including the use of solitary confinement, ‘abusive’ strip-searches, and the impact of such practices on Aboriginal and Torres Strait Islander people. The anti-torture watchdog reiterated that international human rights standards are clear that solitary confinement should only ever be used in exceptional circumstances, as a last resort, for as short a time as possible, and that people should never be routinely strip searched. Consistent with the ongoing advocacy of Latoya Rule—sibling of Wiradjuri, Kokatha and Wirangu man Wayne Fella Morrison who died in custody after being restrained in a spit hood—and the work of the Ban Spithoods Collective, the Committee also called for an end to the use of spit hoods ‘in all circumstances’. Australia’s review closely followed the Subcommittee being forced to suspend their (now terminated) visit to Australia after NSW and Queensland denied access to places of detention in a ‘a clear breach by Australia of its obligations under OPCAT’. The Committee raised serious concerns about this, and drew attention to the lack of progress made towards implementation of the protocol, despite January 2023 marking the (twice extended) deadline for compliance across the country. No Australian jurisdiction has committed to a completely OPCAT-compliant system of monitoring places of detention, and little to no progress has been made towards implementation in some places, notably Victoria, NSW and Queensland. This failure represents a dangerous disregard for the lives of people detained behind bars and is compounded by the Albanese government not stepping up to the plate and jointly funding implementation of the protocol, with the states blaming a funding stoush with the federal government as the reason for poor progress. Money is never, however, the real barrier to implementation of Australia’s human rights commitments. Governments pour billions of dollars into running and expanding prisons, regularly blowing out police and prison budgets while claiming fiscal constraints limit their ability to provide for an adequate welfare state. The vast sums of money pumped into maintaining and reproducing carceral systems could and should be diverted to supporting public and community-controlled housing and services that divert people away from the criminal legal system to begin with, alongside independent oversight of police and prisons. Next steps Australia’s review by the anti-torture watchdog has—again—shone the spotlight on the human rights abuses permitted in the darkness behind prison walls, and provides clear guidance on how governments across the country can prevent torture and mistreatment—and be held more accountable when they do not—in compliance with international human rights standards. These standards should set the floor rather than the ceiling when it comes to upholding and protecting human rights. None of the recommendations are new—the concluding observations add to years of community calls for change as well as mountains of evidence that governments have been sitting on for years; including the Royal Commission into Aboriginal Deaths in Custody, the Royal Commission into abuses at Don Dale in the Northern Territory and a recent Victorian inquiry that recommended an overhaul of the state’s criminal legal system in recognition of the fact that the current, punitive approach is ‘not reducing crime or improving community safety.’ Instead of building more prisons and propping up a system of cruelty, Australian governments at all levels need to act and show leadership to end mass incarceration and human rights abuses behind bars. This article was written on unceded Wadawurrung, Latji Latji and Wangal country. Image by Harshil Panchal. Monique Hurley Monique Hurley is a Managing Lawyer at the Human Rights Law Centre, a community legal centre focused on driving systemic change. More by Monique Hurley › Jamie McConnachie Jamie McConnachie is the Executive Officer at the National Aboriginal and Torres Strait Islander Legal Services, the peak body for Aboriginal Legal Services. More by Jamie McConnachie › Damiya Hayden Damiya Hayden is Policy Lead at Change the Record, Australia’s only national First Nations led justice coalition. More by Damiya Hayden › Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places. If you like this piece, or support Overland’s work in general, please subscribe or donate. 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