Getting the balance right: protecting human rights in
custodial settings
Paper presented at the Australian and New Zealand Society of Criminology
Conference, Canberra, November 26-28, 2008
Bronwyn Naylor (Senior Lecturer/Director Equity, Law School, Monash
University) and Inez Dussuyer (Principal Investigation Officer, Ombudsman
Victoria)
Abstract
How people are treated in custody reflects a society’s commitment to the universality
of human rights. Custodial settings epitomise the challenges of balancing security
and community safety with respect for and compliance with human rights. Human
rights principles are now being embodied in comprehensive domestic obligations in
Australia, such as the ACT Human Rights Act, and the Victorian Charter of Human
Rights and Responsibilities and will have significant implications for those providing
custodial services. The authors are members of a multidisciplinary team which has
obtained an ARC Linkage grant from 2008-2011 to work with external scrutiny
bodies, and custodial agencies, to develop practical strategies for addressing human
rights obligations in these challenging settings. This paper identifies sources of
human rights as they may be applied to custodial settings and discusses the scope for
innovative frameworks for facilitating their practical application.
1
BOX
An investigation into the use of excessive force at the Melbourne Custody
Centre1
On 13 June 2007 Mr A was arrested and brought to the Melbourne Custody Centre by
Victoria Police. He was taken to the strip search room to be searched, where he
alleges he was assaulted by MCC staff.
He said that he was tackled by two officers after he had shouted at them angrily about
the strip search. The officers said he raised his arms and frightened them. He said the
actions of the officers when they wrestled him to the ground were unprovoked and
unnecessary, and that a female office then joined them and twisted Mr A’s arms back,
‘smacked’ his head ‘into the ground’ resulting in bleeding.
The MCC is the main reception point for people arrested in Melbourne and has more
that 11,000 admissions per year. The custodial facility is located in the basement of
the Melbourne Magistrates’ Court, with no access to daylight or fresh air, and no
telephone access for detainees. It houses over a 100 prisoners during the day, and up
to 67 at night in 30 cells. It was designed initially as a day holding facility after
arrest. Prisoners are held there until remanded and transferred into the prison system
or bailed, before and after Magistrates’ Court appearances. Up until 2008, persons can
be detained there for up to 28 days2. The custodial facility is operated by GEO Group
Australia on behalf of Victoria Police
Mr A made a complaint to the Victorian Ombudsman, who investigated the
complaint. The Ombudsman took possession of a copy of the CCTV footage of the
incident (released as part of the report), and interviewed the officers involved, as well
as key witnesses and members of Victoria Police. He noted that there was no
evidence that Mr A had been physically aggressive and that he had been left bleeding,
with blood being visible on the search room floor. Other officers interviewed
commented that some officers ‘thrive on aggression’; ‘OK, you get the odd person
who’s going to play up … so everybody goes in’.3
The Ombudsman concluded that the officers had used excessive force on the detainee.
He was highly critical of the continuing use of the MCC as a place of detention, of the
lack of training of the officers, and of the poor supervision by the private contractor,
GEO. He noted the irony of such an event taking place in the centre of the Melbourne
CBD, ‘in the basement below the Melbourne Magistrates’ Court, an institution with a
mandate for providing justice for the people of Victoria’.4 He said
The Victorian community should be able to have confidence in what happens
behind the doors of a prison – that prisoners … are managed in a just and fair
way; that there are no abuses, or inhumane, cruel or unfair treatment, and that
proper accountability is in place. This is particularly relevant in the context of
Victoria’s Charter of Human Rights and Responsibilities. It is my view that
1
Ombudsman Victoria, Investigation into the use of excessive force at the Melbourne Custody
Centre (2007)
2
Following the Ombudsman’s report Conditions in custody July 2006, measures were taken in 2008 to
reduce the length of stay from 28 days to a maximum of 14 days.
3
Ombudsman 2007, p.19.
4
Ombudsman 2007, p. 8
2
the MCC will fail to meet its Charter obligations unless major reforms are
implemented.5
END BOX
Introduction
Correctional custodial settings are ‘total institutions’:6 they encompass a person’s
whole being, disregard their individuality, and subject them to a regimented pattern of
life that has little or nothing to do with their desires or inclinations. They are (by
definition) inescapable, with most aspects of a person’s life subject to control.
The basic aim in managing a custodial facility is to hold people who do not want to be
there, in a setting that is secure and safe for both prisoners and staff .Custodial
institutions epitomise the challenges of balancing security and community safety with
respect for human rights. For example, particular tensions have arisen recently with
the management of people accused of terrorist offences, where their custodial
conditions have been criticised and subjected to review by the judiciary and
investigated by monitoring agencies.7 To what extent, and in what ways are human
rights relevant and capable of recognition in custodial settings?
In this paper key issues are identified that need to be taken into account when
balancing security and control considerations with human rights obligations, and
some examples of problem areas are noted. The various sources of human rights
relevant to custodial settings are outlined as well as some of the issues relevant for the
monitoring and enforcement of human rights in these settings. Three case studies are
then presented demonstrating recent efforts to incorporate human rights in the practice
of Australian prisons. In conclusion, an outline is presented of an Australian
Research Council project in this area.
Practical problems - illustrations
Aspects of prison life which illustrate the need for engaging human rights and which
pose particular challenges include the use of force, prisoner transport ,
accommodation arrangements, visitor contact, access to lawyers, segregation and
disciplinary regimes.
Excessive use of force as a possible human rights abuse at the Victorian MCC was
highlighted by the Victorian Ombudsman report as described above.
Conditions of remand prisoners held in a high security prison unit and their transport
between the prison and the court are the focus of the following example. Twelve
prisoners charged with terrorism offences, had been held on remand for more than
two years in a maximum security prison outside Melbourne. Their daily routine has
been described as follows:
On court days, they were woken before 6am and offered breakfast, which some did
not eat. They were thoroughly strip-searched, handcuffed and shackled, and then
placed in a van. The trip to court usually took 65 to 80 minutes. The vans were
divided into small box-like steel compartments with padded steel seats, lit only by
artificial light. They were under video surveillance at all times. When court
5
Ombudsman 2007, p.8
See Erving Goffman Characterisitics of total institutions www.diligo.com/goffman.htm
7
UN Working Group on Arbitrary Detention, 2007
6
3
proceedings finished for the day, the applicants were transported back to Acacia by
the same method, returning between about 6pm and 7pm, and thoroughly stripsearched again.8
Justice Bongiorno, presiding over the trial in the Victorian Supreme Court, accepted
the defence argument that the trial would be unfair if the defendants continued to
experience these conditions every day for what was to be a long running trial. The
judge ordered that the prisoners be held closer to the court, not shackled, not strip
searched , and be given at least 10 hours out of cell (compared to the one hour per day
they were permitted previously.9
Prisoner accommodation has also been the subject of litigation here and
internationally, over such issues as double or multiple bunking,10 and access to and
privacy for toilet arrangements, as has severe restrictions on visits11 and on access to
lawyers.
Segregation, and disciplinary regimes, can also raise human rights issues including
abusive punishment, privacy breaches, and cruel methods of isolation.
Key rights of relevance to prisons
International and domestic human rights documents include a number of rights of
particular significance to prisons.

The right to life includes the obligation on the State holding the person to hold
them safely.12 A recent case against France under the European Convention
on Human Rights concluded that punishing a mentally ill prisoner recognised
as a suicide risk with the longest possible period of isolation – 45 days –
during which he committed suicide, breached the ‘right to life’ and also
constituted ‘inhuman and degrading treatment’.13

The right to be protected from torture and cruel, inhuman or degrading
treatment14 and the right to ‘humane treatment when deprived of liberty’15
may be breached by inappropriate use of restraint or force, by severe
overcrowding,16 and by failing to provide female prisoners with basic sanitary
requirements.17 The following conditions, among others, may violate these
rights: overcrowding, insufficient opportunity for outdoor exercise, inadequate
lighting, inadequate ventilation, insufficient or poor quality food, limited
access to natural light and insufficient sanitary conditions.18 The European
8
http://www.hrlrc.org.au/files/HUN5KEVYTV/Benbrika%20[2008].pdf
Benbrika [2008] VSC 80
10
Eg Collins v State of SA (1999) 74 SASR 200
11
Ferla v Poland [2008] ECHR 55470/00
12
See for example ICCPR art.6, European Convention on Human Rights art.2, ACT Human
Rights Act 2004, Victorian Charter of Rights and Responsibilities s.9.
13
Reynolde v France [2008] ECHR 5608/05
14
ICCPR art. 7; Vic Charter s.10; European Convention art.3.
15
Vic Charter s.22.
16
Eg Collins v State of SA (1999) 74 SASR 200
17
Assoc for Prevention of Torture Monitoring Places of Detention: A Practical Guide 2004, 148
18
http://www.hrlrc.org.au/files/VZEF6BQFAP/Andrey%20Frolov%20v%20Russia.pdf
9
4
Court has found that routine strip-searching violated art. 3 of the European
Convention, as it constituted cruel, inhuman or degrading treatment.19

The right to privacy, family, and correspondence 20 may be raised in relation
to such issues as the provision of toilets, strip searching, involuntary medical
treatment, and family visits.
These rights are not absolute The enabling legislation provides for waiver or
modification in certain circumstances, embodying the balancing exercise involved in
implementing human rights. For example, s.7 of the Victorian Charter provides that
s.7(2) A human right may be subject under law only to such reasonable limits as can
be demonstrably justified in a free and democratic society…
These exemptions will often be the focus of any litigation on alleged breaches.
Sources of rights
A range of international statutes, treaties and conventions contain human rights of
relevance to custody settings. Australia has ratified two important UN Conventions in
this area, the International Covenant on Civil and Political Rights 1966 (‘ICCPR’),
and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1987).
More specific UN documents of relevance are the UN Body of Principles for the
Protection of All Persons Under Any Form of Detention or Imprisonment (1988), the
UN Basic Principles for the Treatment of Prisoners (1990), and the UN Standard
Minimum Rules for the Treatment of Prisoners (1957).
None of the international conventions are incorporated into domestic law, and none
are therefore directly enforceable, though they may influence domestic decision
making (eg some court decisions) and provide limited individual complaint
procedures.21 Comprehensive translation of international human rights obligations
into domestic law has been lacking in Australia.
Only recently have some Australian jurisdictions established human rights obligations
within the domestic sphere. The ACT enacted a Human Rights Act in 2004,
embodying the rights articulated in the ICCPR. The Victorian Charter of Rights and
Responsibilities, which came into force in January 2008, similarly draws on the
ICCPR.
In 2007 the Tasmanian Law Reform Institute, on a reference from the Government,
recommended introduction of a Charter of Rights in that jurisdiction.22 During 2007,
the Western Australian Government conducted public consultation on the case for
human rights laws in the State and a committee of leading citizens reported to the
Attorney General in November and its report was released a month later.
19
Van der Ven v the Netherlands (2004) 38 EHRR 3, Lorse v the Netherlands (2004) 37 EHRR
3. The ACT Human Rights Commission observed in its Report 2007, p45 that routine strip-search
when random cell search conducted could violate HR Act (ACT) s.10(1)(b).
20
ICCPR art.17; European Convention art. 8; Vic Charter s.13
21
ICCPR – Optional Protocol permits complaint to the international Human Rights Committee.
22
http://www.law.utas.edu.au/reform/docs/Human_Rights_A4_Final_10_Oct_2007_revised.pdf
5
Federally, the recently elected Labour government made an ‘election commitment to
conduct an inquiry into the legal recognition and protection of human rights’ and
developments are under way for a Federal human rights charter.23
Monitoring and enforcement
Rights have little impact without a remedy. What are the mechanisms available for
protecting ‘rights’? A number of quasi-internal (under the control of the State) and
external mechanisms currently exist and are generally designed to provide a level of
independent scrutiny and assurance about the safe and proper delivery of services, and
that persons held in custody are treated decently and their human rights respected.
Internal mechanisms
At the state level there are monitoring bodies located within government departments
which also manage custodial facilities. In Victoria, the Office of Correctional
Services Review (prior to a restructure in August 2007 known as the Corrections
Inspectorate) conducts inspections, investigations and reviews. It reports directly to
the Secretary of the Department of Justice.24 It does not publish its reports. With the
exception of WA, which has an independent statutory based Inspectorate, other
Australian jurisdictions have similar arrangements as Victoria.
Official Prison Visitor schemes exist in most Australian jurisdictions, and enable
community volunteers to visit prisons to listen to and address prisoner complaints.
The schemes are generally the responsibility of departments managing the prison
systems. Exceptions are in Tasmania where the Ombudsman has responsibility and in
WA where the Prison Visitors scheme comes under the Inspector of Custodial
Services.
Contracts for private providers of outsourced prison services, such as medical care,
prison transport and custodial facilities provide leverage for setting up standards,
performance reporting and accountability requirements. Departmental units managing
and monitoring these contracts can and do impose penalties for non-compliance with
contract conditions.
External mechanisms
Independent from service providers are a number of external accountability
mechanisms which can monitor custodial facilities.
Independent statutory prison Inspectorates exist in Ireland, South Africa, Norway, the
UK, Canada and, in Australia, WA. The Inspectorates generally report directly to
Parliament. Their influence and impact depends on their authority and credibility;
they do not have power to enforce their recommendations.
Ombudsman offices exist at state and federal level and have the power to inquire into
prisoner complaints. It has been noted25 that the Ombudsman jurisdiction can be slow
and reactive – it can involve delays before the complaint is resolved; internal prison
complaint processes may need to be used first and a prison complaint may provoke
undesirable consequences for the complainant. While Ombudsman offices generally
focus on individual complaints, some have been proactive in investigating systemic
23
HRLRC Bulletin November 2008, p.10.
http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb4df04418ddea8/OrgC
har28Oct2008.pdf
25
Harding, R. ‘Inspecting prisons’ in O’Toole and Eyland (eds) Corrections Criminology (2005)
Hawkins Press, Annandale, N.S.W.
24
6
issues 26 Ombudsman offices, however, have no power to enforce their
recommendations.
Domestic courts have traditionally preferred to reinforce the status of the prison as a
self-governing body. In UK cases, for example, ‘analogies drawn were between the
governor and the commanding officer or sea captain (Fraser v Mudge 1975) … or the
manager (Ex parte King 1984)’.27 It has been noted ‘the imprisoning authority
possesses non-enforceable obligations. These may seem to be reasonably
comprehensive…but they are not legally binding in the sense of giving prisoners a
right of action against prison authorities in a court of law.’28
When international rights have been raised in recent years – eg the ICCPR in Collins
case in relation to conditions of accommodation – courts have routinely noted the
unenforceability of these treaties. By contrast, in the UK the European Convention of
Human Rights and the enacting domestic legislation, the Human Rights Act 2000, has
enabled prisoners’ voting rights to be protected.
With the advent of the Victorian Charter some courts have begun referring to the
Charter rights, at least as part of the context for the decision. For example, in
Benbrika Bongiorno J noted the Charter’s right to fair trial, although he did not rely
on it in that instance.
UN bodies may be accessible for individual complaint too, for example, the Human
Rights Committee, under the Optional Protocol to the ICCPR. The force of any
findings again depends on the government of the day. The previous Federal
Government explicitly disregarded UN bodies and reports.
A different mechanism may be developed under the Optional Protocol to the
Convention against Torture, discussed further below.
Making human rights work: three examples
Three ways in which human rights can be operationalised into custodial practice are
discussed below:
The ACT Human Rights Commission
The ACT Human Rights Commission (HRC) tabled a report of a human rights audit
of Quamby Youth Detention Centre in the ACT Legislative Assembly in 2005.
Building on that work, it carried out a major audit of the Correctional facilities of the
Territory in 2007, drawing on the ACT Human Rights Act, and identifying areas
which were found to breach rights under the Act.29
The HRC examined relevant documentation including Standing Orders, and
conducted interviews with detainees, custodial officers and other staff, and health
professionals. Detainees were asked questions about such issues as the induction
process, relations with staff, violence amongst detainees, discipline, searches, food,
clothing, health, visits and access to lawyers.
26
27
See http://www.ombudsman.vic.gov.au/www/html/46-media-and-publications.asp
Quinn, P. ‘Adjudications in Prison: Custody, Care and a Little Less Justice?’ (1993) 32/3
Howard Journal 191-202, 193
28
Harding, R. op cit p6. See also see Bekink v The Queen, [1999] WASCA 160.
ACT HRC, Human Rights Audit on the Operation of ACT Correctional Facilities under
Corrections Legislation 2007.
29
7
Frequent issues raised included lack of privacy (eg lack of shower screens, CCTV
monitoring providing no toilet privacy), strip searching, drug testing, lack of
information about rights on induction, and problems receiving phone messages from
their lawyers.30
As each issue was examined in the Report, the relevant human rights were identified.
For example, overcrowding and poor accommodation were noted as engaging the
ACT HR Act s.12 privacy; ICESCR Art 11 right to adequate housing; and various
SMRs, eg 9, 10 (space), 11 (lighting), 12 (sanitation), 13 (bathing and hygiene) ,19
(separate bed, bedding).
The HRC made wide ranging recommendations, some quite specific. As an
illustration, many detainees raised concerns about urine testing to identify drug use.
During strip searches, the prisoner had been required to be totally naked, and then
required to urinate in front of two officers to provide a testing sample. Prisoners found
it difficult to produce a sample in these conditions and often felt humiliated by the
process. Changes prior to the audit in strip search procedure allowed prisoners to take
off their upper clothing first, and then replace them before removing the lower
clothes. The HRC recommended that, since a prisoner at that stage had just been
strip-searched, they should be allowed to go into a room alone for (under camera
surveillance) to provide a urine sample.31
The WA Office of the Inspector of Custodial Services
HM Inspectorate of Prisons in the UK has been an important source of independent
monitoring for many years and a model for other inspectorates with the purpose of
providing ‘independent scrutiny of the conditions for and treatment of prisoners and
other detainees’. 32
Derived from the UK model, the Office of the Inspector of Custodial Services (OICS)
commenced operation in WA in 2000, reports directly to Parliament and operates
under the Inspector of Custodial Services Act (2003) as ‘an independent statutory
body that provides external scrutiny to the standards and operational practices of
custodial services in Western Australia.’33
The OICS is required to inspect and report on every correctional facility at least every
three years, and can carry out both announced and unannounced inspections. Its
Inspection reports can have a powerful impact; whilst formally reporting to
Parliament, the Office also publishes its report on the internet and can gain significant
exposure for its findings and recommendations.
The OICS has developed a Code of Inspection Standards (2007) drawing on the
international treaties, the Standard Guidelines for Corrections in Australia (which
themselves draw on the UN’s Standard Minimum Rules for the Treatment of
Prisoners), and also on the UK Inspectorate’s standards.34
The first Inspector, Professor Richard Harding, observed in the introduction to the
2007 Standards,
30
31
32
33
34
ACT HRC Report 2007, p.20.
Rec 2.3.1 Report 2007, p.47.
http://inspectorates.homeoffice.gov.uk/hmiprisons/about-us/
http://www.custodialinspector.wa.gov.au/go/about-us
http://www.custodialinspector.wa.gov.au/go/publications-and-resources
8
Prisons are by nature closed institutions often far from the public eye where one
group of people has considerable power over another group, and the potential for
abuse is always present. Consequently, there is an elevated need for accountability
and transparency in the way that prisons and prisoners are managed to ensure human
rights and the prevention of abuse.35
Most recently, the Office has published new Inspection Standards for Aboriginal
Prisoners (2008).
Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment
The Convention against Torture uses a broad definition of ‘torture’ which would
cover a range of human rights abuses in prisons:
Art 1. …"torture" means any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for an act he or a
third person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to
lawful sanctions.
The Optional Protocol came into force in 2006, and establishes two levels of
monitoring of the use of torture:

The international overseeing body, the Subcommittee on Prevention of
Torture, and

The National Preventive Mechanisms (NPMs) which are national visiting and
investigating bodies, designated by States parties. The OPCAT outlines some
of the basic powers and protections necessary for an NPM to be effective.
These international and national bodies will be authorised to conduct regular visits to
all ‘places of detention’ and to make recommendations and observations to the
government and relevant authorities to improve the situation of detainees.
Australia is one of the few countries that has not ratified OPCAT. However, the
federal government announced in August 2008 that it would begin the process of
ratification.36 The process of scoping the range of places where people are ‘deprived
of liberty’, and identifying all existing monitoring mechanisms is currently underway.
Bodies such as the Ombudsman offices and the WA OICS may be defined as NPMs.
It will be a prerequisite of ratification that the required range of NPMs exists or has
been established.
The ARC-funded research: Applying Human Rights Legislation In Closed
Environments: A Strategic Framework For Managing Compliance
The authors, with colleagues and industry partners, have been funded by the ARC for
three years to identify sources of human rights in Australia, to ascertain current
approaches for incorporating, managing and monitoring the application of human
35
Code of Inspection Standards, p.iii.
36
‘Government takes hard line against torture’ Age 9/8/08.
9
rights in closed environments in Australia, and to propose a ‘Strategic Framework For
Managing Compliance’. The project includes, but is not limited to, an examination of
human rights in prisons.
The project investigators are Professor Arie Freiberg, Dr Bronwyn Naylor, Dr Julie
Debeljak, Dr Stuart Thomas (Monash University) and Dr Inez Dussuyer (Ombudsman
Victoria). The partner organisations are the Victorian and Commonwealth
Ombudsman Offices, the Victorian Equal Opportunity and Human Rights
Commission, Office of the Public Advocate and Office of Police Integrity, and the
WA Office of the Inspector of Custodial Services.
Email contact details are: Bronwyn.naylor@law.monash.edu.au.
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