Reviewing detention from prison architecture to the grounds for incarceration

If I was AG I would initiate a review of Australia’s detention laws and systems, covering everything from the design of our prisons to finding a solution for those in indefinite detention.  I would ask, “Are there persons that have been detained because they are unpopular with certain parts of our society?” Is detention really necessary, what are the alternatives? As Winston Churchill said, “Nothing can be more abhorrent to democracy than to imprison a person or keep him in prison because he is unpopular. This is really the test of civilization.” The right to liberty is one of the most fundamental human rights. People should only be deprived of their liberty as an absolute last resort.

Security of the community is the key reason advanced for deprivation of an individual’s liberty but to quote Anthony Burke, a lecturer in Politics at the University of Adelaide:

“Security is a simple, reassuring word, but behind its door lies a long and terrible corridor; the despair of the asylum seeker, the suicide attempts, the riots, the self-mutilation, the protest, the voicelessness, and the lack of understanding.”

These issues take us to the heart of what human rights are about, a sense of fairness, of social justice. As Australia’s leading law officer it would be my role to lead on this issue and I would put it on the agenda of the new Standing Council of Law and Justice.

Broadly speaking people are detained inAustraliaunder laws dealing with crime, immigration, mental health, and contagious diseases. Australia has not codified the requirements for deprivation of a person’s liberty as the UK has in Article 5 of the Human Rights Act, where the six defined exceptions to a person’s right to liberty have provided a vital framework against which to test its laws. These principles provide a good starting point.

High on my priority list for attention would be those that are incarcerated because they are:

• declared unfit to stand trial due to intellectual disability. I note the case of Marlon Noble in WA who has been held in prison for almost a decade on this basis.
• detained indefinitely on the basis of a mental disorder
• asylum seekers subject to prolonged detention. I would seek to return at least to the max limit of detention being 273 days as it was prior to 1994.
• asylum seekers who are in indefinite detention because they are either considered ‘stateless’ or denied a fair hearing on their security risk profile due to the state’s refusal to provide them with details of the facts that have led to an adverse security finding.
• children of asylum seekers
• young offenders

This does not mean that others subject to prolonged detention such as those convicted of terrorism offences, violent and sexual offenders subject to indefinite detention, or the criminally insane should not also be closely examined to see what alternatives exist for their liberty but the cases above stand out as matters that could be realistically tackled.

As Justice Michael Kirby said in the High Court case of Al-Kateb, that declared that the federal government can detain rejected asylum seekers indefinitely, the majority view had “grave implications for the liberty of the individual in this country which this court should not endorse”.

Legislative and judicial support for indefinite detention is a recent phenomenon inAustraliabut is fundamentally unfair and contrary to many human rights instruments notably Article 9 of the ICCPR as being ‘arbitrary’ if it is unduly prolonged or not subject to periodic review.

Whilst it is difficult to judge whether a person is dangerous to the community this needs to be carefully balanced against the harms of indefinite detention – for example, loss of employment and family contact, loss of dignity and self-esteem, institutionalisation and mental illness.

In the criminal law over the past 20 years we have witnessed the winding-back of the rights of accused persons, the tightening of bail laws, the creation of unique anti-terrorism offences and orders, mandatory sentencing laws, and the parliamentary fettering of the judicial sentencing discretion, all increasing state power over the liberty of the individual and leading to greater prison populations.

The cost of running prisons has become a significant issue for the States and Territories and the cost of detention centres a significant issue for the Commonwealth. This economic paradigm provides a new opportunity for a ‘roots and branch’ review of our approach to detention inAustralia.

As AG I would aim to work with the States to agree on best practice for Australian prisons and use this to drive reform. Best practice should address employment, health, recreation and exercise, sanitation and security.

I would seek to expand, develop and implement as many as possible alternatives to detention and support programs where the emphasis is on the long term welfare of the detainee (many of whom have mental illnesses), rehabilitation of prisoners rather than punishment.  I would seek to expand custodial diversionary programs and embed restorative justice in the criminal justice system. I would insist on clear time limits for due process in all mental health legislation.

And last but not least I would engage Australian architect Glen Murcutt to design an inspired Australian prison or detention centre with adequate space, light and ambience.  A well-designed modern construction can create a positive atmosphere both for detainees and staff, important not only for those on remand but to assist detainees to leave the institution at the end of their time prepared mentally for the challenge of resuming life outside.  Such a project could really help to change mindsets and culture.

Australia started as a penal colony and the culture of punishment has lived on in large parts of the community particularly in our treatment of Aboriginal people.

We have quite a way to go to develop a more tolerant society and as AG a full scale review of detention laws in an international human rights framework would be my starting point.

John Corker is the Director of the National Pro Bono Resource Centre