Preventable death in custody highlights urgent need for oversight of places of detention

As published in The Age

A coroner's damning finding that the death of an Aboriginal man in police custody was "preventable", and resulted from "completely inadequate and unsatisfactory treatment", highlights the urgent need for all places of detention to be subject to independent monitoring and oversight.

Kwementyaye Briscoe died at the Alice Springs watch house in January 2012 after being detained for drunkenness. The coroner found that, while in custody, Mr Briscoe was denied basic and necessary medical treatment, dragged and treated with “undue vigour”. Another young Aboriginal man died in the same watch house in 2009.

The coroner’s finding that Mr Briscoe’s death resulted from ill-treatment and was preventable reaffirms the urgent need for Australia to ratify and implement the Optional Protocol to the Convention against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment.

The Optional Protocol aims to prevent ill-treatment and promote humane conditions of detention by requiring that all places of detention are subject to independent monitoring and inspection.

Overwhelming evidence and international experience show that external scrutiny of places of detention can prevent ill-treatment and ensure that detainees are treated with dignity and respect.

Australia signed the Optional Protocol in May 2009 but has still not taken the steps necessary to ratify and implement it. This is despite a joint parliamentary committee’s unanimous recommendation that it be ratified and implemented as a matter of priority. The joint committee was particularly critical of the major gaps that exist in the monitoring and oversight of police cells, such as those in which Mr Briscoe died.

The issue of ill-treatment in detention is not, however, confined to police cells or to the Northern Territory. In April 2011, an independent report tabled in Western Australia’s parliament described prison conditions in that state as “degrading, intolerable and inhumane”. Recent reports from Victoria’s Ombudsman have been similarly critical, describing conditions in youth detention facilities, police cells and the Melbourne Custody Centre as “appalling”, “disgraceful” and incompatible with human rights.

At the national level, the Optional Protocol requires that countries establish what is known as a “national preventative mechanism”, or NPM. An NPM is an independent body with a mandate to conduct both announced and unannounced visits to places of detention, to make recommendations to prevent ill treatment and improve conditions, and to report publicly on its findings and views. Australia does not currently have an NPM, despite repeated recommendations by experts such as the UN Human Rights Committee, the Australian Human Rights Commission and the Victorian Ombudsman that all places of detention – including police cells, prisons, immigration detention centres and psychiatric facilities – should be subject to independent oversight.

At the international level, the Optional Protocol establishes an independent committee of experts, the UN Sub-Committee on the Prevention of Torture, with a mandate to carry out country missions to monitor deprivations of liberty. In Australia, this requires that states and territories pass legislation to provide the Sub-Committee with visitation rights and inspection powers, something that governments have been slow to do, despite their rhetoric about transparency and accountability.

How many more preventable deaths must occur while the Commonwealth and states wrangle about the modest costs of detention oversight, and states and territories prevaricate about introducing laws to open up places of detention to scrutiny?

The Optional Protocol has already been ratified and successfully implemented in a number of comparable countries, such as New Zealand, Germany and the United Kingdom. Australia’s delay is inexcusable, particularly given the modest costs of detention oversight and the high costs associated with ill-treatment. As the joint parliamentary committee found, “In addition to the human rights benefits, monitoring has the potential to minimise the costs of addressing such instances [of torture and ill-treatment], including avoiding litigation costs and compensation payments.”

In New Zealand, the system of independent monitoring is estimated to have saved taxpayers up to $30 million by preventing cases of ill-treatment in detention. In Australia, by contrast, with our inadequate detention monitoring systems, taxpayers have forked out over $20 million in compensation for ill-treatment in immigration detention alone over the last decade.

The Commonwealth, state and territory governments should all prioritise ratification and implementation of the Optional Protocol. Any further delay in the prevention of ill-treatment in detention will continue to have intolerable human, social and economic costs.

Phil Lynch is Executive Director of the Human Rights Law Centre. He is on Twitter @PhilALynch