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 (Chloe Valentine) and our older persons mental health system (Bob Sprigg at Oakden).
These failures led to 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.
Unfortunately this is the case with the government’s proposed new monitoring scheme for our state’s prisons.
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 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.
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, various stakeholders have been tirelessly calling for a local OPCAT mechanism (known as a national preventive mechanism (NPM).
The proposed new monitoring scheme of ‘official visitors’ for our correctional institutions will replace the state’s so-called ‘independent inspectors scheme’ whereby unpaid inspectors, mostly justices of the peace, visit our prisons, equipped with little monitoring criteria or standards to guide their inspections. 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’.
The Bill’s OPCAT-style scheme has some strengths: firstly, it provides for a group of remunerated and relatively qualified monitors to make visits to our prisons so as to report to the Minister and the Department of Correctional Services on the current quality of treatment and to make recommendations on how it could be improved. To conduct this monitoring, under OPCAT these monitors need the power to make visits to all our prisons, announced or unannounced, to speak with prisoners privately and to access all relevant information.
The Bill needs to be amended.
The first problem is that the Bill does not sufficiently guarantee the independence of the official visitors, as it gives the Department of Correctional Services the responsibility of determining their remuneration and the Minister the responsibility for allocating their resources. This puts the inspectors in the invidious position of performing oversight of the same department from which it receives remuneration and resources. Western Australia has avoided this problem by giving 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.
Second, the Bill needs to separate the function of monitoring from other extraneous functions such as complaint handling and prisoner advocacy which are already undertaken by other bodies and will detract from, and dilute, the monitoring function.
Third, 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. Presently it requires inspectors to apply in writing when they require information. This clumsy requirement impedes the making of unannounced visits to prisons and the accessing of all databases on arrival.
It gives more scope for a cover-up culture to thrive in our prisons which are out of public sight.
Finally, 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. Resourcing this external monitoring and ensuring it is independent, focused 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.
Instead of allowing the government to push 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.
Laura Grenfell is Associate Professor, Adelaide Law School
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