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Product Details
| ISBN-13: | 9781742242828 |
|---|---|
| Publisher: | NewSouth |
| Publication date: | 09/13/2017 |
| Sold by: | INDEPENDENT PUB GROUP - EPUB - EBKS |
| Format: | eBook |
| Pages: | 232 |
| File size: | 365 KB |
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CHAPTER 1
AN ABSENCE OF HUMAN RIGHTS
On 25 July 2016, an episode of the television current affairs program Four Corners sparked national outrage. It was about the conditions experienced by children imprisoned at the Don Dale Youth Detention Centre, a maximum security prison for juvenile offenders in the Northern Territory. It began by showing CCTV footage of a 14-year-old boy named Jake Roper, who had been held in a solitary confinement cell for 23 and a half hours a day for 15 days straight. The cell was a small dark concrete room with no running water, except from the toilet. Jake had managed to break out of his cell and into the common area, where he began pacing the hall, making noise, and looking for ways to get out.
Soon the prison riot squad arrived, including a trained security dog from the adult jail. One officer suggested they let the boy come through: 'Let the f***er come through because while he's comin' through he'll be off balance. I'll pulverise, I'll pulverise the little f***er. Oh s**t, we're recording hey.' Another officer asked: 'Gas the lot of them?' The Northern Territory Commissioner of Correctional Services, who happened to be on the scene, answered him: 'Mate, I don't mind how much chemical you use.'
The guards sprayed tear gas into the common area and into each of the solitary confinement cells, even those where the children had stayed in their cells and done nothing wrong. One boy yelled out that he couldn't breathe. The guards then entered wearing gas masks, and cuffed all of the boys, took them outside, made them lie on the ground, and sprayed them with a fire hose. To justify these actions, the prison later falsely claimed that six young male prisoners between the ages of 14 and 17 years old had escaped their cells and armed themselves with glass from smashed windows and broken light fittings.
Later that episode, footage was shown of three prison guards entering the cell of a 13-year-old boy, Dylan Voller. The guards pinned Dylan to the floor, stripped him, took away his playing cards, and left him alone, naked and in tears. We were then shown a scene of a prison guard physically assaulting Dylan, kneeing him in the back and hitting him on the head, apparently because Dylan spent too long on the phone. Another scene, this one filmed at a different detention centre in Alice Springs, showed four guards strapping a now 17-year-old Dylan into a mechanical restraint chair, shackling him to the chair by his wrists, waist and ankles, and covering his head with a white bag known as a 'spit hood'. He was left that way for nearly two hours.
The public response was immediate. Newspapers across the country ran stories denouncing the harsh conditions in which the children were detained. They pointed to the lack of transparency in the system, noting that much of what happens within prison walls is hidden from the public. They questioned whether the pre-employment psychological testing of corrections officers was good enough. The federal government's response was equally swift. The morning after the episode aired, Prime Minister Malcolm Turnbull announced that a Royal Commission would be established to investigate the detention of children in the Northern Territory.
It would seem reasonable to assume that the treatment of these children at Don Dale was illegal. After all, surely no Australian law could authorise such brutal treatment, including the use of mechanical restraint devices on children. In fact, many of the actions taken at Don Dale, including the use of mechanical restraint devices, were specifically authorised by Northern Territory legislation. In a law passed in April 2016, an earlier provision which allowed prison staff to use 'handcuffs or a similar device' was replaced with a new provision allowing any mechanical device to be used, so long as it was pre-approved by the Commissioner of Correctional Services.
In introducing this Bill to the Northern Territory Legislative Assembly, the Minister of Correctional Services, John Elferink, explained that this change was needed so that 'modern mechanical devices of restraint or advancements in technology will adequately be provided for'. This was necessary, he explained, because 'in recent years we have seen children in custody being more violent, dangerous and irresponsible than we have seen before', and 'the current legislation blatantly exposes members of staff and the public to unacceptable levels of risk'.
However, since the story broke and the broader public learned of the existence of these devices, the Northern Territory Parliament has banned the use of mechanical restraint chairs in youth detention. The Territory's new Labor Government has also said that it is committed to closing Don Dale and building a new juvenile detention facility, but that this would wait until after the conclusion of the Royal Commission. That commission has since received video evidence of a prison guard entering the room of two boys and asking them for oral sex and, on another occasion, filming a boy using a urinal. While that guard no longer works at Don Dale, children continue to be held there.
It would be easy, even comforting, to treat the Don Dale issue as an isolated incident: a sad and disturbing blight, but one that is thankfully out of the ordinary. And yet, it has proven to be anything but.
In the juvenile detention system alone, other examples have now been found of conditions similar to those endured by Dylan and Jake and countless other children at Don Dale and in Alice Springs. In August 2016, images emerged of a boy serving a sentence at the Cleveland Youth Detention Centre in Townsville. Refusing to have a shower when told by the guards, he was handcuffed, ankle-cuffed, stripped naked and then left alone in isolation for more than an hour. And at the Brisbane Youth Detention Centre in December 2015, an 11-year-old boy was photographed with two black eyes and a bruised jaw. The boy and his family said he was restrained by three guards and 'bashed'. The authorities claimed that the guards had slipped on a wet surface and fallen on the boy, and then, in a different account, that it was the boy himself who had slipped and fallen on his face. Problems such as these particularly affect Indigenous youth, with a report in February 2017 finding that they are 24 times more likely to be detained than non-Indigenous youth.
More shockingly still, in August 2014, a 22-year-old Indigenous woman named Ms Dhu died while in police custody in Western Australia. She had been arrested for unpaid fines under a controversial law whereby fine defaulters can be jailed as a way to 'pay off' their debt. While in custody, Ms Dhu complained a number of times of pain in her chest, and was twice taken to hospital for an assessment, but each time she was sent back to the police station lock-up.
She continued to complain of pain after these two assessments. However, according to the coroner's report released in December 2016, the majority of the police officers on shift had by this stage formed the view that Ms Dhu was either 'exaggerating' or 'faking it'. On the day of her death, Ms Dhu again asked to be taken to hospital, and was told 'no'. As the morning went on she began to develop new symptoms, including vomiting, numbness in her lips, her hands turning blue and, eventually, collapsing to the floor in her cell. One officer tried to get her into a sitting position by pulling her arm, but she lost her grip and Ms Dhu fell backwards, hitting her head on the concrete floor.
The police finally did come to take her to hospital 20 minutes later. When they did, they handcuffed her first and then dragged her along the floor, before loading her seemingly unconscious body into the back of a police van. The coroner found that, even at this stage, only one of the police officers 'showed any display of urgency', while another officer 'was filmed walking at a normal pace'. Ms Dhu went into cardiac arrest outside the hospital and died less than an hour later.
It might be thought that problems concerning the detention of children and other young people would be found in the prison system alone. But in August 2016, it was discovered that a 13-year-old boy named Toby, who was a student at a private school in NSW, had been repeatedly locked in a fenced-off cubby house by his school teachers. The school marketed itself as being specially equipped to educate students with autism spectrum disorder. Toby was on the autism spectrum, and he would sometimes have what the teachers referred to as 'meltdowns'. When this occurred, he would be physically carried across the playground to the disused, boarded-up cubby house which was surrounded by a fence, and locked inside. Toby called this place 'the cage', and said he had tried to climb out. When Toby's mother gained access to her son's school records via her solicitor, she discovered that in one instance he had been locked up in the 'cage' six times in one day.
This was not the first time such a thing had happened in Australia. In March 2015, a school in Canberra's south paid $5195 for external contractors to build a two-by-two metre cage made of blue metal pool fencing within a room used for storing musical instruments. Over the following weeks, a 10-year-old boy on the autism spectrum was locked in the cage several times. On one occasion, he struggled so violently to get out that he broke the lock. Eventually, following a complaint by the ACT Human Rights Commission, the school was ordered to dismantle the cage, and the principal of the school was removed from her position. But more examples keep mounting: a document released by the NSW Department of Education in August 2016 outlined 64 cases of abuse and mistreatment of children with disabilities in state schools in less than two years. Only 20 per cent of the allegations resulted in any action being taken against the staff member.
Australia's record has been stained by incidents like these for many decades, since at least the Stolen Generations, where over 100 000 children were forcefully removed from their parents and taken into institutions to be raised. Many children suffered greatly at the hands of their new carers, even to the point of being sexually and physically abused. More recently, from 1999 to 2003, Australia held thousands of asylum seekers in a remote facility in South Australia known as the Woomera Detention Centre. Hundreds of these detainees were children, and many developed mental illness while behind bars.
According to the detention centre's medical records, one such child, a five-year-old boy named Shayan, experienced nightmares, sleep disturbance, bed wetting and anxiety. He would wake in the night, gripping his chest and saying, 'They are going to kill us'. Despite psychological assessments and recommendations by centre managers that Shayan be moved out of Woomera, it was several months before he and his family were moved to Villawood Detention Centre in Sydney. By this time, he had developed post-traumatic stress disorder. While Woomera has now shut permanently, other immigration detention centres have taken its place.
The elderly
The mistreatment of children is just one illustration of how Australia's human rights record has major blemishes when it comes to protecting vulnerable people – Indigenous peoples, the homeless and people with a mental illness, for example. There are many other such examples.
On the same evening that Four Corners aired its investigation into the Don Dale Youth Detention Centre, another ABC program, 7.30, showed footage of Corey, a 27-year-old nursing home worker in Adelaide, apparently attempting to suffocate an 89-year-old man named Clarence, who was suffering from advanced dementia. Prior to the incident, Clarence's daughter Noleen had become concerned about her father after noticing he had bruising and bloodshot eyes from crying. Dissatisfied with the nursing home's response to her inquiries, Noleen installed a hidden camera in her father's room.
The footage showed Corey repeatedly force-feeding Clarence, hitting his head, sneezing on his face, and attempting to suffocate him with a napkin. Noleen reported this to the police and Corey was convicted of two counts of aggravated assault. For this he served only three weeks in prison. Clarence's nursing home, the Mitcham Residential Care Facility, initially offered Noleen counselling, but then sent her a letter saying she had breached the Privacy Act 1988, the Aged Care Act 1997 and the Surveillance Devices Act 2016. She was told that if she tried to put a camera in her father's room again it would be confiscated and the police called.
Clarence's story is also not an isolated example. Elder abuse has become such a major problem that in February 2016 the federal Attorney-General George Brandis announced an Australian Law Reform Commission inquiry into the issue. A survey of residential aged care facility nurses in NSW in 2016 showed that 47 per cent of nurses witnessed 'resident-to-resident' abuse (that is, hitting, pushing, kicking or verbal abuse between residents) at least once a month. Many incidents were never reported by staff, because under the Aged Care Act an incident was only 'reportable' if it involved 'unlawful sexual contact, unreasonable use of force, or assault'. Other types of abuse, such as neglect, emotional abuse, psychological abuse and financial forms of abuse, are not considered reportable under the law. As many of these types of abuse do not rise to the level of criminal conduct, the police are unlikely to get involved in these cases as they did in Clarence's case.
Residents suffering serious abuse (and their families) always have the option of making a complaint to the Aged Care Complaints Commissioner. In the first six months of 2016, the Commissioner received over 2150 complaints, mostly relating to poor quality care, problems with the administration of medication and continence management. However, only 231 complaints were referred to external agencies for action. This was because most complaints were deemed able to be resolved by taking no action at all, or through regular scheduled site visits, or by raising the issue directly with the offending service provider and asking them to investigate it.
The problems in nursing homes are not confined to physical acts of violence, but also include widespread neglect. For instance, a media investigation in early 2017 found that nursing home residents with mental illness are frequently being denied treatment. The investigation, which wasbacked up by audits conducted by the University of Sydney and Deakin University, found that less than 2 per cent of residents suffering depression have received the standard psychological treatments for this illness, such as cognitive behaviour therapy. According to the report, the reason for this is a rule under the Better Access Medicare program whereby nursing homes are not required to provide treatment to mentally ill patients, as such patients are deemed to be 'in the community'. As Rod McKay, a director of the NSW Institute of Psychiatry, stated: 'I'd estimate conservatively that over 30 000 nursing home residents experiencing depression, for whom psychological therapy should be available as a first-line treatment option, are being denied access to psychologists and allied mental health professionals.'
The neglect is not confined to patients with depression. For example, Ronda Gordon, an 87-year-old resident from Adelaide suffering from a non-progressive motor neurone disease, has been denied Medicare-funded treatments because of the rule. Despite the high rates of illness in nursing homes, the Turnbull Government decided to re-affirm this rule late in 2016.
The result is that neglect is dangerously rife in the aged care industry. One nurse told the following story in a submission to the Australian Law Reform Commission's elder abuse inquiry:
On my last shift before quitting I was the RN [registered nurse] in charge for 120 residents, a pill load, a schedule 8 round across three buildings and not enough staff to manage the secure unit. At the same time I had two very serious falls and one inexperienced new graduate RN. I rang the General Manager and said she is going to have a coroner's case on her hands if she doesn't sort something out. I left after being routinely stuck with dangerous staffing levels shift after shift. It was downright reckless and shameful as I knew residents were at risk due to poor staffing. The residents stay in faeces longer than is acceptable, had delayed assessments and sat on toilets waiting for help [for] inhumane lengths of time night after night. I couldn't be part of that anymore. I lost sleep over it and felt my soul was being destroyed by being part of such an industry.
Human rights
Each of these stories represents a failing of a government, or of an organisation, or of an individual. However they also represent a failing of our legal system to guarantee people their basic dignity and human rights. The boys at Don Dale and other correctional facilities have been denied the right to be treated with humanity and respect. The neglected and abused residents of Australia's nursing homes have been denied the right to good quality health care. It is not enough to say that blame should lie with the staff members and the perpetrators: the problem is also that our legal system allows such acts to take place without consequences.
(Continues…)
Excerpted from "A Charter of Rights for Australia"
by .
Copyright © 2017 George Williams and Daniel Reynolds.
Excerpted by permission of University of New South Wales Press Ltd.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Preface,
1 | An absence of human rights,
2 | Australia's human rights record,
3 | Our rights under the law,
4 | Why doesn't Australia have a charter of rights?,
5 | Is Australia's new human rights framework a success?,
6 | Charters of rights in the states and territories,
7 | An Australian charter of human rights and responsibilities,
Appendix: Arguments for and against a charter of rights,
Bibliography,
Index,