: Human Rights in Closed Environments

Human Rights in Closed Environments

Emma Larking

Human rights in closed environments AltLJ 403 reviewBronwyn Naylor, Julie Debeljak and Anita Mackay (eds); The Federation Press, 2014; 294 pages; $59.59 (softcover).

According human rights in ‘closed’ environments — where individuals are detained against their will — is an inherently difficult enterprise, as this collection of essays powerfully demonstrates. The collection defines closed environments as those in which individuals are or may be deprived of their liberty because they are, by lawful authority, denied permission to leave at will. The environments considered include prisons, police cells, closed mental health and disability units, and immigration detention centres. The contributors come from academic and practice backgrounds, with many having experience on bodies with oversight responsibilities for particular closed environments. The editors propose a ‘three pronged strategic framework for implementing human rights in closed environments’ (page 2), which is developed in individual contributions and across the entire collection. The ‘three prongs’ include a regulatory regime that combines international human rights obligations, comprehensive national human rights legislation — noticeably absent in Australia — and ‘environment-specific legislation’ (page 3) translating general rights into rights, duties, and policies that are carefully targeted towards the closed environment in question. The other prongs are effective and independent external monitoring mechanisms, and ‘culture change’ — in other words, ensuring that formal commitments to rights recognition are translated into institutional cultures that are genuinely respectful of human rights.

This collection is timely given the steady increase in prison incarceration rates, and frequent spikes in the numbers of people held in immigration detention. The result is endemic overcrowding in both detention environments. Patsie Frawley and Bronwyn Naylor’s essay on ‘congregate facilities’, or large scale institutions where people with intellectual disabilities are housed, also provides a disturbing insight into a form of highly institutionalised care that some readers may be surprised to learn still exists in Australia.

According and respecting human rights in closed environments is obviously complicated by the fact that people detained are already deprived, with the law’s imprimatur, of one of their most fundamental rights: the right to liberty. The difficulty of according human rights in these environments relates more generally, though, to the power relations involved, with detainees subject to the control and authority of administrators across virtually all aspects of their lives. Cultures of cruelty and impunity can develop very quickly in detention settings in the absence of rigorous external scrutiny. This problem is exacerbated in the context of broader political cultures that are hostile to the rights of the detained, and which assume that a detention environment should be punitive. While formal deference is paid in Australia to the idea that people in closed environments, although deprived of their right to liberty, retain their other human rights, the mechanisms for ensuring this are extremely weak. A hostile political culture is also demonstrated by the fact that although oversight mechanisms often draw attention to gross abuses, these abuses are allowed to persist. This is the reality experienced by detainees across the range of closed environments considered in this book. One of the book’s strengths is in shining a light on this disturbing reality, and the distance between our stated commitments — if not explicitly to rights protection, then to protect the basic dignity of people in detention — and their experience, which is commonly of degradation, physical discomfort, and mental stress.

Another troubling issue that the book brings strongly to the fore is the particular vulnerability of people in closed environments. This vulnerability is not simply a consequence of detention; rather, it reflects the kinds of people most likely to be detained. Disproportionately, these are people who are already disempowered and stigmatised: the mentally ill, who are massively over-represented in the ordinary prison system; refugees and asylum seekers; people with intellectual disabilities; people with histories of brain trauma; and Indigenous people who are 15 times more likely to be imprisoned than non-Indigenous people (see Anita Mackay’s essay, page 274) and who form 40 per cent of the prison population in Western Australia, despite the fact that they represent only three per cent of the state’s general population (see Bronwyn Naylor’s essay, page 88).

Another of the book’s strengths is its focus on cultural change, and its recognition that enhanced regulatory regimes for the protection of rights in closed environments will be worthless in the absence of such change. This is particularly the case in the Australian context, where external detention monitoring mechanisms such as human rights commissions and ombudsmen offices have investigative and reporting but not enforcement powers. Ultimately, however, the sub-text that gives this book much of its power and urgency is that closed environments are inimical to human rights, and that an enlightened society would do well not only to focus on improving the realisation of human rights within closed environments, but on reducing the numbers of people we place in these environments in the first place.

EMMA LARKING is a researcher within the ANU College of Asia and the Pacific, with a particular interest in human rights and justice issues.

(2015) 40(3) AltLJ 216
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