Indigenous Law Bulletin
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by Ray Jackson, Samantha Joseph and Charmaine Smith
In March 2006, the United Nations (‘UN’) Human Rights Committee condemned Australia for violating the human rights of a young Aboriginal man with a mild intellectual disability who was held in an adult correctional centre.[1] This is one of a number of occasions where Australia has been found to have breached the human rights of people living in Australia.
Following the decision, a number of key children’s rights organisations, legal services and community groups collaborated to consider ways of making Australian governments more accountable in relation to human rights abuses, particularly relating to young people. The circumstances of this case have formed the backdrop to a campaign that demonstrates the importance of ensuring governments that are signatories to international treaties uphold and protect international human rights, particularly for societies’ most vulnerable members.
Corey Brough (‘Mr Brough’) was 16-years-old when he participated in a riot in early 1999 at Kariong Juvenile Detention Centre (‘Kariong’) in New South Wales (‘NSW’), to draw attention to the alleged mistreatment and brutalisation of detainees by Kariong staff.[2] As a result of his involvement in the riot, Mr Brough was transferred from Kariong to an adult prison, Parklea Correctional Centre (‘Parklea’). At Parklea, Mr Brough was segregated from other inmates and placed in a safe cell for his own safety and to protect him from other prisoners.
Mr Brough experienced difficulty coping with conditions in the safe cell. He was subject to segregation, exposed to artificial lights for excessive periods and at times left without appropriate clothing and blankets. These claims were validated by a caseworker from the Aboriginal Deaths in Custody Watch Committee who visited Mr Brough in March and April of 1999. During this period, Mr Brough said to a prison officer: ‘If I don’t get out of here, there will be another black death.’[3] This was the first reported incident relating to self-harm.
Over the next couple of weeks Mr Brough’s behaviour became increasingly destructive. He engaged in a number of self-harming and other destructive acts including breaking a plate and using a broken fragment to shred his mattress, scratching surveillance camera lenses, breaking cell lights and attempting suicide by hanging himself with a noose made out of his underwear. In relation to the latter incident, Mr Brough was charged with failing to comply with a reasonable order and was sentenced to his cell for 48 hours. Following his attempted suicide, Parklea’s general practitioner prescribed Largactical[4] to Mr Brough on a temporary basis until a psychiatrist could assess him.
On 4 March 2003, Mr Brough complained to the Human Rights Committee of the United Nations about the treatment he experienced as a prisoner in the NSW corrections system. Mr Brough claimed that his placement into a safe cell was incompatible with his age, disability and status as an Aboriginal inmate. Mr Brough further claimed his human rights were violated under articles 2(3), 7, 10 and 24(1) of the International Covenant on Civil and Political Rights[5] and articles 2, 3 and 5(2)(b) of the Optional Protocol to the International Covenant on Civil and Political Rights,[6] which recognise and promote the civil and political rights of all human beings.
The Human Rights Committee found that Mr Brough’s rights were violated as he was deprived of all liberty, subjected to inhumane treatment and treated in a way that is inappropriate for a 16-year-old.
The Committee said:
In the circumstances, the author’s extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal. As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and his suicide attempt.[7]
The Committee stated that Mr Brough was entitled to an effective remedy, including compensation, and declared that Australia has a responsibility to ensure that similar violations did not occur in the future.[8]
James McDougall, the Director of the National Children’s and Youth Law Centre, believes the decision is highly significant:
It puts Australian governments and in particular the NSW Government on notice that prisoners have rights. Locking people away does not mean putting their rights on hold. If we are serious about rehabilitating offenders and reintegrating them into society upon release, we must be more careful about the treatment that offenders particularly ‘young offenders’ receive while in detention.
The importance of keeping a person’s humanity and dignity in mind is a responsibility of the state. It is even more important when the person is young. The community expects the prison system to release people who can participate in society not people who are even more broken, angry and disillusioned than before they went to prison.[9]
Terry Chenery, the Executive Officer of the NSW Aboriginal Justice Advisory Council says:
This case highlights the need to review existing policies, legislation and practices regarding corrective and juvenile justice services. It also offers an opportunity to consider other campaigns and initiatives addressing the criminal justice system such as the Aboriginal Justice Plan and Two Ways Together strategy.[10]
A number of leading children’s rights and legal services organisations have applauded the decision of the United Nations Human Rights Committee including the Council of Social Services of NSW, National Children’s and Youth Law Centre, Youth Justice Coalition, Justice Action, Indigenous Social Justice Association, Public Interest Advocacy Centre and NSW Aboriginal Justice Advisory Council.
Collectively these organisations have called for:
1. Acknowledgment from the Commonwealth and New South Wales Governments that Mr Brough's human rights have been violated by the State.
2. The implementation of effective and systemic remedies for Mr Brough (and any others that should be identified now and in the future) which include compensation and a post-release support package for those whose rights have been violated, and their families.
3. The establishment of a comprehensive and independent review of the system for youth detention.
4. Community-based assistance for prisoners in crisis.
5. The creation of effective investigative and reporting powers for the Human Rights and Equal Opportunity Commission. Powers which are appropriately resourced.
6. The establishment of management guidelines for human rights compliance by correctional services with appropriate training and enforcement.
7. Acknowledgment of the failure to effectively implement the Royal Commission into Aboriginal Deaths in Custody recommendations[11] and a reaffirmation of a commitment to treat Indigenous people in custody with respect.
8. The development of a broad community-based strategy for providing support to young offenders, particularly Indigenous offenders.
9. The development of effective mechanisms for addressing domestic human rights issues requiring a whole-of-government approach.
10. Empowerment of Indigenous communities to address violence and abuse.[12]
Brett Collins, Coordinator of Justice Action, a criminal justice advocacy organisation which provides prisoner/defendant support and promotes reform in the prison system says that ‘Australia has a record of 10 human rights violations in the 26 years after ratification of the covenant and has largely ignored the judgments [of the UN Human Rights Committee].’[13]
In this year which marks the 15th anniversary of the Report of the Royal Commission into Aboriginal Deaths in Custody,[14] it is hoped that Australian governments will undertake a comprehensive review of best practice in the treatment of young offenders and adopt the recommendations set out above. Mr Brough remains in an adult correctional facility and receives ongoing support from his legal representatives and other community based organisations who have been working to create pathways for a successful release.
Ray Jackson is the President of Indigenous Social Justice Association Inc.
Samantha Joseph is a Policy Officer at the NSW Aboriginal Justice Advisory Council.
Charmaine Smith is the Solicitor on the Indigenous Justice Project at the Public Interest Advocacy Centre.
[1] United Nations Human Rights Committee, Communication No 1184/2003, UN doc CCPR/C/86/D/1184/2003.
[2] Ibid [2.2].
[3] Ibid [2.6].
[4] An anti-psychotic medication used to treat a number of problems including severe depression or disturbed behaviour. It is available by doctor’s prescription only.
[5] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into force 23 March 1976). Australia became a signatory on 18 December 1972. The Federal Government is responsible for ensuring that all levels of government uphold the covenant.
[6] Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into force 23 March 1976).
[7] United Nations Human Rights Committee, above n 1 [9.4].
[8] Ibid [11].
[9] National Children’s and Youth Law Centre and Justice Action, ‘Out of Sight is Out of Mind – Australian Government Record on Young Prisoners Wanting’, (Press Release, 15 May 2006).
[10] Personal communication received by the authors from Terry Chenery, Executive Officer of AJAC, 27 November 2006.
[11] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 5, Recommendations (1991) <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/> at 29 November 2006.
[12] Letter from collective organisations under the name of ‘Youth Detention Advocacy Group’ to NSW and Commonwealth Ministers, 18 August 2006.
[13] Personal communication received by the authors from Brett Collins, Coordinator of Justice Action, 27 November 2006.
[14] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) <http://www.austlii.edu.au/au/other/IndigLRes/toc-N.html> at 29 November 2006.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2006/59.html