SA’s proposed scheme to monitor places of detention needs to be improved

Associate Professor Laura Grenfell, Adelaide Law School

Those who are out of sight should not be out of mind. In recent years South Australia has seen failures in its systems designed to safeguard those who are in vulnerable situations and out of public sight– think of our child protection system and our older persons’ mental health system.

The failures identified by the Chloe Valentine and Oakden inquests revealed instances of abuse and neglect which could be fairly described as cruel, inhuman or degrading treatment. SA cannot afford to be complacent by devising schemes which are ill-conceived and the subject of little, to no, consultation.

An external mechanism to proactively monitor our state’s closed facilities is warranted given that systems can often fail to adequately uphold agreed-upon standards (or lack adequate standards) for those who are in care or detention. Every jurisdiction in Australia is currently in the process of establishing such a mechanism because, after abuses at the NT’s Don Dale Youth Detention Centre received international attention, the federal Coalition government ratified an international agreement, the Optional Protocol to the Convention against Torture (OPCAT), in late 2017. OPCAT is designed to complement our existing state mechanisms such as the Ombudsman SA which investigates, in a reactive manner, complaints made by those in detention. For the new scheme to benefit our state, it needs to work alongside our existing oversight bodies, to be fully independent (and perceived as such), and have clear power to access all relevant information and places of detention.

In mid-May this year, the South Australia government introduced a half-baked scheme to meet the state’s OPCAT obligations. It was one of a raft of amendments in SA’s Correctional Services (Accountability and Other Measures) Amendment Bill 2020 which passed the House of Assembly on 22 July and is currently in the Upper House. (The amendments are largely the same as those introduced into the SA Parliament by the then Labor government in late 2017 before Australia ratified OPCAT.)

It would not be surprising if you were unaware of this development: the introduction of this particular legislative response to OPCAT was not reported in the media. More critically, it was preceded by zero consultation with key stakeholders in the state despite the amendments being described in the second reading speech as “significant”.

This is in the face of the fact that for years these stakeholders have been tirelessly calling for a local OPCAT mechanism - known as a national preventive mechanism (NPM) - and contributing to national consultations headed by the Australian Human Rights Commission as well as the Commonwealth Ombudsman (who has been designated as the coordinator of the NPMs being established in each jurisdiction). These NPMs will work with the international monitoring body, the UN Subcommittee on the Prevention of Torture (SPT) which will conduct supervisory visits to each Australian jurisdiction every 4-8 years.

The proposed new monitoring scheme of “official visitors” will replace the state’s so-called “independent inspectors scheme” which has languished for more than a decade due to its poor design. The state’s proposed new OPCAT-style scheme has some strengths: it sets out that the Governor will appoint a diverse group of remunerated visitors including at least one legal practitioner, one woman and one Aboriginal or Torres Strait Islander person (it excludes only those persons who become a member of an Australian parliament, become a bankrupt or who is convicted for an offence or serving a prison sentence). Previously the inspectors were volunteers, most of whom are justices of the peace.  Since at least 2012 the government has been made aware, via an audit report of Ombudsman SA, that this scheme has been under-performing because the inspectors “are perceived to be identified with the department”.[i]

Under section 20D of the new scheme, the official visitors are to conduct visits and inspections of our correctional institutions (which covers adult prisons and “police prisons” but not prison transport vehicles etc). They are to “inquire into, investigate and provide advice to the Minister or the CE [Chief Executive of the Department of Correctional Services] on any matter relating to the management of the correctional institution, or the care, treatment of control of the prisoners”. This can be on their own initiative or on a referral by the Minister or the CE. Furthermore, they can make recommendations for the purposes of “promoting the high quality care, treatment and control of prisoners” in these institutions. They can speak with prisoners and consider information and materials “in private”. Section 20A (1) states: “an official visitor must act independently, impartially and in the public interest” and further that neither the Minister nor the CE can “control how an official visitor is to exercise” their “functions and powers” or “give any direction with respect to the content” of any visitor report.

The main problem with the design of the proposed new scheme is that it does not sufficiently guarantee the independence of the official visitors. This independence is seriously compromised by the fact that under s 20B of the Bill, the CE of the Department of Correctional Services (DCS) determines the “remuneration, allowances and expenses” of the official visitors while under s 20C the Minister “must provide” the visitors with “the resources reasonably required”. At this point it is worth remembering that the visitors’ role is to monitor how DCS does its job in terms of the treatment of those in detention. It is Public Law 101 to understand that an oversight body is not likely to be able to fulfil its functions if it is being resourced and remunerated by the same body it is tasked with monitoring.

Independence is the lynchpin of the OPCAT scheme. Under Article 18 of OPCAT, Australia has agreed to “guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel”. This means that the state NPM needs to enjoy “complete financial and operational autonomy”.[ii] In light of this, Western Australia has given the OPCAT monitoring role to its Ombudsman and its Office of the Inspector of Custodial Services, the latter of which is an independent statutory department receiving its budget direct from Treasury. In WA, both oversight bodies report directly to Parliament unlike SA’s proposed mechanism.

In terms of staffing and autonomy, the SPT has recommended that the NPM needs its own secretariat and staff and the ability to bring in external consultants with skills sets covering areas such as mental health and wellbeing. It has explained that ‘the State should ensure the independence of the NPM by not appointing to it members who hold positions which could raise questions of conflicts of interest’.[iii] In other words, official visitors should not include those who presently serve the government or government agencies. This clearly excludes from the NPM those who presently work in the criminal justice system (including DCS) or law enforcement or who are on short-term leave or secondment from these parts of government. In other words, the NPM requires full operational and financial autonomy with regard to its staff. Without this, it very difficult, if not impossible, for the mechanism to take a systematic and planned approach to preventing torture or treatment which is cruel, inhuman or degrading in our prisons.

A second problem is that the new proposed scheme pays insufficient attention to the careful design of the OPCAT system as a proactive and preventive mechanism which conducts regular and comprehensive visits, both announced and unannounced. The SA proposed mechanism muddles this careful design by requiring that official visitors double up on existing functions. For example, in addition to monitoring, they are to “receive and investigate any complaint of a prisoner in the correctional institution” and that they “act an as advocate for prisoners … to promote the proper resolution of issues”. Complaint handling role is a reactive role and is currently well covered by the Ombudsman SA. Advocacy is the territory of various non-governmental organisations such as OARS. The functions of monitoring, complaint handling and advocacy should not be mixed. The Ombudsman may conduct a brief inspection of a correctional institution to follow up a complaint of ill treatment. This contrasts with a lengthy, comprehensive and proactive OPCAT-style visit in order to make system-wide recommendations to Parliament as to how changes to policy or law could prevent or reduce the risk of cruel, inhuman and degrading treatment or torture. Unless amended, the new scheme will burden official visitors with too many functions, particularly already those covered by existing bodies, dilute their role and impede their ability to effectively monitor our correctional institutions.

A third problem is that the official visitors do not have adequate powers to fulfil their monitoring function. The proposed SA scheme sets out the functions of the official visitors but it does not explicitly articulate their powers. Under OPCAT, it an expected that visitors/monitors have the power to access all relevant data bases as well as all places of detention on an unannounced and immediate basis if they wish. This means they should be able to arrive at a correctional institution and, without delay, commence an inspection which includes all parts of the institution as well as its databases. Section 20E, entitled “provision of information to official visitor”, is clumsily drafted in providing that the official visitor must “by notice in writing” require the provision of information from a government or non-government organisation. This indicates an impractical approach which would give correctional institutions time to tidy up their territory before an inspection of documents or an institution takes place. This undermines one of the key aims of the OPCAT mechanism which is to increase transparency and reduce the cover-up culture which can thrive in our places of detention because they are out of public sight.

The Bill needs to be amended. It needs to ensure that both the remuneration and resources of the official visitors come from a budget directly allocated to them by Treasury or Parliament. It needs to ensure that official visitors are perceived as independent by ensuring they are ring-fenced away from DCS. It needs to separate the function of monitoring from other extraneous functions such as complaint handling and prisoner advocacy. It needs to clearly set out the powers of the official visitors so that these powers are not uncertain and impractical for effectively carrying out their functions. Furthermore, the proposed scheme needs to ensure the visibility of the state’s NPM as a key player in the prevention of ill-treatment and torture in our prisons. This visibility and transparency is important if the NPM is to enjoy both credibility and legitimacy.

Overall there is likely to be savings to government if it can get the design right from the start. We can see this by looking north: the many inadequacies in the Northern Territory’s youth justice detention system has led to much harm, expensive inquiries and avoidable costly litigation. In June the High Court found in Brindaris v NT[iv] that four youth detainees in the Don Dale Youth Detention Centre had been subjected to the use of tear gas and were entitled to damages on the basis that it constituted battery. The case, one of a series, indicates that the relevant NT authorities had unlawfully used weapons on youth detainees. The Court held that corporal punishment is not a permitted “use of force” under the NT youth justice legislation.

Such systemic problems in places of detention could be proactively identified via external monitoring by independent and qualified experts conducting regular visits with full powers of access. Leaving these systemic problems to be resourced by a Minister and their department which has other, sometimes competing, priorities can lead to personal harm, expensive litigation and potentially hefty damages. This year South Australia became the last Australian jurisdiction to end the use of spithoods in youth detention - it was slow to act even after a finding by the NT Supreme Court that placing a spithood on a youth detainee is an act of battery. Similarly, South Australia’s Department of Correctional Services has been slow to adopt soft shackles for prisoners in hospital, even for women in childbirth. South Australia needs to devise smarter methods of dealing with problematic behaviour, by finding methods that do not constitute cruel, inhuman and degrading treatment – or lead to expensive litigation and payouts. Resourcing this external monitoring and ensuring it is independent and rigorous will pay off.

It is a disservice to South Australians that the government chose not to undertake any consultation with key stakeholders on this important mechanism. The government has made insufficient effort to ensure that the mechanism is financially autonomous, that it will be perceived by all as independent, that it has adequate powers and clear, unimpeded monitoring functions. The Minister’s second reading speech for these “significant amendments” is all too brief and offers little transparency. It is as if the government did not want to draw attention to the new scheme even though, despite its inadequacies, it is a clear improvement on the existing broken scheme. Instead of allowing the government to ram through this half-baked scheme in the hope that problems can be corrected later, it is worth the Upper House giving this mechanism some proper attention so that the state does not introduce yet another inadequate scheme and then need to fund a string of inquiries as well as defend costly litigation.
[i] Ombudsman SA, An Audit of Prisoner Complaint Handling in the SA Department for Correctional Services (June 2012) p37.
[ii] Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Guidelines on National Preventive Mechanisms, (9 December 2010) UN Doc. CAT/OP/12/5, para 12.
[iii] As above, para 18.
[iv] [2020] HCA 22.