OPINION
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
26 THE BULLETIN October 2020
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 illtreatment 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 NT4 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
