Legislating the Human Rights of Prisoners:

The ACT Experience

Sean Costello Human Rights Legal and Policy Adviser,

ACT Human Rights Commission

Correctional Services Healthcare Conference

Heads and Tails

•Please stand up •Answer the following questions by placing your hands on your head (Heads) or waist (Tails). •If you’re wrong, please sit down

Heads and Tails

Q: Australia has a legislated Human Rights Act/Bill of Rights Heads: TRUE Tails: FALSE

Answer: False (Tails)

Heads and Tails

Q: Victoria was the first jurisdiction in Australia to enact human rights into legislation? Heads: TRUE Tails: FALSE

Answer: False (Tails). ACT was the first.

Heads and Tails

Q: One of the most important human rights principles of health care in a prison environment, particularly in relation to the right to humane treatment, is that of ‘equivalence’. Heads: TRUE Tails: FALSE

Answer: True (Heads)

Heads and Tails

Q: When asked to nominate a performer who sings about human rights, at least one training participant in an Introduction to Human Rights course will nominate ‘Pink’. Heads: TRUE Tails: FALSE

Answer: True (Heads)

Overview

1. What are human rights

2. Relevance to prison environment

3. The ACT (and Victorian) Experience

4. The Future: The Right to Health?

The International Bill of Rights

•International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)

•International Covenant on Civil and Political Rights 1966 (ICCPR)

Universal Declaration of Human Rights 1948 (UDHR)

• No national legislation (beyond anti-discrimination laws).

• Victoria’s Charter of Rights and Responsibilities 2006

• ACT Human Rights Act 2004 • Both based on International Covenant on Civil

and Political Rights, with one exception.

Human Rights in Australia

Rights protected in the HRA

• Humane treatment in detention

• Of children in criminal process

• Fair trial

• Rights in criminal matters incl. Presumption of innocence

• Compensation for wrongful conviction

• Protection against trial or punishment more than once for the same crime

• Protection against retrospective laws

• Freedom from forced work

• Rights of ethnic, religious or linguistic minorities

• Right to education (limited)

• Recognition & equality before the law

• Life (from birth onwards)

• Protection from torture & cruel, inhuman or degrading treatment or punishment

• Protection of family and children

• Privacy and reputation

• Freedom of movement

• Freedom of thought, conscience, religion and belief

• Peaceful assembly and freedom of association

• Freedom of expression

• Right to take part in public life

• Liberty and security of the person

Key human rights for detainees

•Humane treatment when deprived of liberty •Protection from torture and cruel, inhuman

or degrading treatment •Consent to medical treatment •Right to life •Protection of the family and children •Recognition and equality before the law •Right to privacy and reputation).

•Freedom of thought, conscience, religion and belief •Recognition & equality before the law •Life

Key human rights for staff

Reasonable limitations

The Human Rights Act permits reasonable limits to be placed on rights, provided those limits are in legislation and that the limits are ‘demonstrably justifiable in a free and democratic society’.

Public Authorities’ Obligations in the ACT

• Take human rights into account in decision making

• Act in accordance with human rights.

Relevant Instruments & Guidelines

• Convention Against Torture

• Basic Principles for the Treatment of Prisoners

• Body of Principles for the Protection of All Persons under any

form of Detention or Imprisonment;

• Standard Minimum Rules for Prisoners;

• Specific rules for the protection of juveniles;

• The United Nations Rules for the Treatment of Women Prisoners (‘Bangkok rules’)

• Guidelines by NGO human rights organisations like the Red

Cross or Association for the Prevention of Torture.

• Standard Guidelines for Corrections in Australia and the

Royal Commission into Aboriginal Deaths in Custody

Human Rights and Health

a. Access to a doctor b. Equivalence of care c. Patient's consent and confidentiality d. Preventive health care e. Humanitarian assistance f. Professional independence g. Professional competence. European Committee for the Prevention of Torture

Do HRs Make a Difference?

• IVF Treatment in Victoria (Castle’s)

• Treatment without consent (Brough)

• United Nations views on Right to Life

• Mental Health Treatment (Edwards)

• TB Transmission and Equivalence (South

Africa)

The ACT Human Rights Commission

Mary Durkin

Commissioner for Health Services

Commissioner for Disability &

Community Services

Alasdair Roy

Commissioner for

Children & Young People

Dr. Helen Watchirs

Commissioner for Human Rights

& Discrimination

Maintaining HRs: The ACT Experience

• Human Rights Commission may ‘review the effect of territory laws, including the common law, on human rights’ and ‘report in writing to the Attorney-General on the results of the review.’

Maintaining Human Rights

1) Former Quamby Youth Detention Centre 2) Adult Remand Facilities 3) Psychiatric Services Unit 4) Youth Justice system, including Bimberi Youth

Justice Centre 5) 2014 Investigation into the mechanical

restraint of a prison detainee in a mental health facility

6) 2014 Review of the Treatment of Women Detainees at the Alexander Maconochie Centre (ACT’s only prison).

2014 AMC Audit

•Daily average of 14 women in 2012-13, compared with 252 men. •Women detainees made up just 5.2% of the total prison population in the ACT, compared to the Aust average for women detainees of 7.5%. •Average stay for most women detainees is around 100 days, including time on remand.

2014 AMC Audit: Health

•Health care provided by ACT Justice Health, part of ACT Health Directorate (not ACTCS). • Identified advantages with co-location at larger men’s prison including access to health and dental services.

2014 AMC Audit: Health

•Detainees generally positive about health •Access hampered by staff shortages (Equivalence) •Women in CSU for extended periods. •Recommended improvements to induction process for prescribed medication (Equivalence) •Repeated previous recommendations for NSP •Continue to examine the issue of bleach

2014 AMC Audit: Related Concerns

• Structured employment opportunities •Operation of the Women’s and Children’s Policy. • Transitional release facility outside the perimeter fence

for women, and a therapeutic environment like that which is available for the men. Both related to the Right to Equality.

• Government responded agreeing, agreeing-in-principle or noting all but seven of the recommendations. (accepted all relating to health).

The Future: A Right To Health?

• UN Covenant on ESCR includes ‘right to highest attainable standard of healthcare’

• 2010 ACT ESCR Report recommended a model bill including the Right to Health in the ACT HRA:

• “ESCR provide a coherent normative system to support the needs of the whole human being”

• ESC Rights being reviewed this year. • Already applied in the Commonwealth.

Human Rights Commission (ACT) – see fact sheets in particular www.hrc.act.gov.au ACT Corrective Services – Alexander Maconochie Centre http://www.cs.act.gov.au/home/custodial_operations/ Human Rights Law Centre – detainees’ rights http://www.hrlrc.org.au/html/s02_article/default.asp?nav_top_id=66&nav_cat_id=162

Australian Human Rights Commission – prisoners and human rights http://www.hreoc.gov.au/HUMAN_RIGHTS/prisoners/index.html European Committee for the Prevention of Torture (CPT) http://www.cpt.coe.int/en/ Origins of Heads and Tails / Coin Flipping http://en.wikipedia.org/wiki/Coin_flipping

Human rights and corrections: further resources

ACT Human Rights Commission

Email: human.rights@act.gov.au

Web: www.hrc.act.gov.au

Tel: 02 6205 22 22