Legislating the Human Rights
of Prisoners:
The ACT Experience
Sean Costello
Human Rights Legal and Policy Adviser,
ACT Hum...
Heads and Tails
•Please stand up
•Answer the following questions by
placing your hands on your head
(Heads) or waist (Tail...
Heads and Tails
Q: Australia has a legislated Human
Rights Act/Bill of Rights
Heads: TRUE
Tails: FALSE
Answer: False (Tail...
Heads and Tails
Q: Victoria was the first jurisdiction in
Australia to enact human rights into
legislation?
Heads: TRUE
Ta...
Heads and Tails
Q: One of the most important human
rights principles of health care in a
prison environment, particularly ...
Heads and Tails
Q: When asked to nominate a performer
who sings about human rights, at least
one training participant in a...
Overview
1. What are human rights
2. Relevance to prison environment
3. The ACT (and Victorian) Experience
4. The Future: ...
The International Bill of Rights
•International Covenant on
Economic, Social and Cultural
Rights 1966 (ICESCR)
•Internatio...
• No national legislation (beyond anti-
discrimination laws).
• Victoria’s Charter of Rights and Responsibilities
2006
• A...
Rights protected in the HRA
• Humane treatment in detention
• Of children in criminal process
• Fair trial
• Rights in cri...
Key human rights for detainees
•Humane treatment when deprived of liberty
•Protection from torture and cruel, inhuman
or d...
•Freedom of thought, conscience,
religion and belief
•Recognition & equality before the law
•Life
Key human rights for sta...
Reasonable limitations
The Human Rights Act permits
reasonable limits to be placed on rights,
provided those limits are in...
Public Authorities’ Obligations in the ACT
• Take human rights into account in
decision making
• Act in accordance with hu...
Relevant Instruments & Guidelines
• Convention Against Torture
• Basic Principles for the Treatment of Prisoners
• Body of...
Human Rights and Health
a. Access to a doctor
b. Equivalence of care
c. Patient's consent and confidentiality
d. Preventiv...
Do HRs Make a Difference?
• IVF Treatment in Victoria (Castle’s)
• Treatment without consent (Brough)
• United Nations vie...
The ACT Human Rights Commission
Mary Durkin
Commissioner for Health Services
Commissioner for Disability &
Community Servi...
Maintaining HRs: The ACT Experience
• Human Rights Commission may ‘review
the effect of territory laws, including the
comm...
Maintaining Human Rights
1) Former Quamby Youth Detention Centre
2) Adult Remand Facilities
3) Psychiatric Services Unit
4...
2014 AMC Audit
•Daily average of 14 women in 2012-13,
compared with 252 men.
•Women detainees made up just 5.2% of the tot...
2014 AMC Audit: Health
•Health care provided by ACT Justice Health, part
of ACT Health Directorate (not ACTCS).
•Identifie...
2014 AMC Audit: Health
•Detainees generally positive about health
•Access hampered by staff shortages (Equivalence)
•Women...
2014 AMC Audit: Related Concerns
• Structured employment opportunities
• Operation of the Women’s and Children’s Policy.
•...
The Future: A Right To Health?
• UN Covenant on ESCR includes ‘right to
highest attainable standard of
healthcare’
• 2010 ...
Human Rights Commission (ACT) – see fact sheets in particular
www.hrc.act.gov.au
ACT Corrective Services – Alexander Macon...
ACT Human Rights Commission
Email: human.rights@act.gov.au
Web: www.hrc.act.gov.au
Tel: 02 6205 22 22
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Sean Costello - ACT Human Rights Commission - Legislating the Human Rights of Prisoners: The ACT Experience

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Sean Costello delivered the presentation at the 2014 Correctional Services Healthcare Conference.

The 2014 Correctional Services Healthcare Conference - addressing the gaps, promoting multidisciplinary care and improving the continuum of care into the community.

For more information about the event, please visit: http://bit.ly/correctionalsvs14

Published in: Health & Medicine
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Sean Costello - ACT Human Rights Commission - Legislating the Human Rights of Prisoners: The ACT Experience

  1. 1. Legislating the Human Rights of Prisoners: The ACT Experience Sean Costello Human Rights Legal and Policy Adviser, ACT Human Rights Commission Correctional Services Healthcare Conference
  2. 2. Heads and Tails •Please stand up •Answer the following questions by placing your hands on your head (Heads) or waist (Tails). •If you’re wrong, please sit down
  3. 3. Heads and Tails Q: Australia has a legislated Human Rights Act/Bill of Rights Heads: TRUE Tails: FALSE Answer: False (Tails)
  4. 4. Heads and Tails Q: Victoria was the first jurisdiction in Australia to enact human rights into legislation? Heads: TRUE Tails: FALSE Answer: False (Tails). ACT was the first.
  5. 5. Heads and Tails Q: One of the most important human rights principles of health care in a prison environment, particularly in relation to the right to humane treatment, is that of ‘equivalence’. Heads: TRUE Tails: FALSE Answer: True (Heads)
  6. 6. Heads and Tails Q: When asked to nominate a performer who sings about human rights, at least one training participant in an Introduction to Human Rights course will nominate ‘Pink’. Heads: TRUE Tails: FALSE Answer: True (Heads)
  7. 7. Overview 1. What are human rights 2. Relevance to prison environment 3. The ACT (and Victorian) Experience 4. The Future: The Right to Health?
  8. 8. The International Bill of Rights •International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) •International Covenant on Civil and Political Rights 1966 (ICCPR) Universal Declaration of Human Rights 1948 (UDHR)
  9. 9. • No national legislation (beyond anti- discrimination laws). • Victoria’s Charter of Rights and Responsibilities 2006 • ACT Human Rights Act 2004 • Both based on International Covenant on Civil and Political Rights, with one exception. Human Rights in Australia
  10. 10. Rights protected in the HRA • Humane treatment in detention • Of children in criminal process • Fair trial • Rights in criminal matters incl. Presumption of innocence • Compensation for wrongful conviction • Protection against trial or punishment more than once for the same crime • Protection against retrospective laws • Freedom from forced work • Rights of ethnic, religious or linguistic minorities • Right to education (limited) • Recognition & equality before the law • Life (from birth onwards) • Protection from torture & cruel, inhuman or degrading treatment or punishment • Protection of family and children • Privacy and reputation • Freedom of movement • Freedom of thought, conscience, religion and belief • Peaceful assembly and freedom of association • Freedom of expression • Right to take part in public life • Liberty and security of the person
  11. 11. Key human rights for detainees •Humane treatment when deprived of liberty •Protection from torture and cruel, inhuman or degrading treatment •Consent to medical treatment •Right to life •Protection of the family and children •Recognition and equality before the law •Right to privacy and reputation).
  12. 12. •Freedom of thought, conscience, religion and belief •Recognition & equality before the law •Life Key human rights for staff
  13. 13. Reasonable limitations The Human Rights Act permits reasonable limits to be placed on rights, provided those limits are in legislation and that the limits are ‘demonstrably justifiable in a free and democratic society’.
  14. 14. Public Authorities’ Obligations in the ACT • Take human rights into account in decision making • Act in accordance with human rights.
  15. 15. Relevant Instruments & Guidelines • Convention Against Torture • Basic Principles for the Treatment of Prisoners • Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment; • Standard Minimum Rules for Prisoners; • Specific rules for the protection of juveniles; • The United Nations Rules for the Treatment of Women Prisoners (‘Bangkok rules’) • Guidelines by NGO human rights organisations like the Red Cross or Association for the Prevention of Torture. • Standard Guidelines for Corrections in Australia and the Royal Commission into Aboriginal Deaths in Custody
  16. 16. Human Rights and Health a. Access to a doctor b. Equivalence of care c. Patient's consent and confidentiality d. Preventive health care e. Humanitarian assistance f. Professional independence g. Professional competence. European Committee for the Prevention of Torture
  17. 17. Do HRs Make a Difference? • IVF Treatment in Victoria (Castle’s) • Treatment without consent (Brough) • United Nations views on Right to Life • Mental Health Treatment (Edwards) • TB Transmission and Equivalence (South Africa)
  18. 18. The ACT Human Rights Commission Mary Durkin Commissioner for Health Services Commissioner for Disability & Community Services Alasdair Roy Commissioner for Children & Young People Dr. Helen Watchirs Commissioner for Human Rights & Discrimination
  19. 19. Maintaining HRs: The ACT Experience • Human Rights Commission may ‘review the effect of territory laws, including the common law, on human rights’ and ‘report in writing to the Attorney-General on the results of the review.’
  20. 20. Maintaining Human Rights 1) Former Quamby Youth Detention Centre 2) Adult Remand Facilities 3) Psychiatric Services Unit 4) Youth Justice system, including Bimberi Youth Justice Centre 5) 2014 Investigation into the mechanical restraint of a prison detainee in a mental health facility 6) 2014 Review of the Treatment of Women Detainees at the Alexander Maconochie Centre (ACT’s only prison).
  21. 21. 2014 AMC Audit •Daily average of 14 women in 2012-13, compared with 252 men. •Women detainees made up just 5.2% of the total prison population in the ACT, compared to the Aust average for women detainees of 7.5%. •Average stay for most women detainees is around 100 days, including time on remand.
  22. 22. 2014 AMC Audit: Health •Health care provided by ACT Justice Health, part of ACT Health Directorate (not ACTCS). •Identified advantages with co-location at larger men’s prison including access to health and dental services.
  23. 23. 2014 AMC Audit: Health •Detainees generally positive about health •Access hampered by staff shortages (Equivalence) •Women in CSU for extended periods. •Recommended improvements to induction process for prescribed medication (Equivalence) •Repeated previous recommendations for NSP •Continue to examine the issue of bleach
  24. 24. 2014 AMC Audit: Related Concerns • Structured employment opportunities • Operation of the Women’s and Children’s Policy. • Transitional release facility outside the perimeter fence for women, and a therapeutic environment like that which is available for the men. Both related to the Right to Equality. • Government responded agreeing, agreeing-in-principle or noting all but seven of the recommendations. (accepted all relating to health).
  25. 25. The Future: A Right To Health? • UN Covenant on ESCR includes ‘right to highest attainable standard of healthcare’ • 2010 ACT ESCR Report recommended a model bill including the Right to Health in the ACT HRA: • “ESCR provide a coherent normative system to support the needs of the whole human being” • ESC Rights being reviewed this year. • Already applied in the Commonwealth.
  26. 26. Human Rights Commission (ACT) – see fact sheets in particular www.hrc.act.gov.au ACT Corrective Services – Alexander Maconochie Centre http://www.cs.act.gov.au/home/custodial_operations/ Human Rights Law Centre – detainees’ rights http://www.hrlrc.org.au/html/s02_article/default.asp?nav_top_id=66&nav_cat_id=162 Australian Human Rights Commission – prisoners and human rights http://www.hreoc.gov.au/HUMAN_RIGHTS/prisoners/index.html European Committee for the Prevention of Torture (CPT) http://www.cpt.coe.int/en/ Origins of Heads and Tails / Coin Flipping http://en.wikipedia.org/wiki/Coin_flipping Human rights and corrections: further resources
  27. 27. ACT Human Rights Commission Email: human.rights@act.gov.au Web: www.hrc.act.gov.au Tel: 02 6205 22 22

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