Review Essay
Human Rights in Closed Environments by Bronwyn
Naylor, Julie Debeljak and Anita Mackay (eds) (2014)
Federation Press, 304 pp, ISBN 9781862879652
Carolyn McKay
Abstract
Human Rights in Closed Environments examines the human rights of people
detained in ‘closed environments’; that is, non-public sites of segregation
including prisons, police cells, immigration detention centres, disability
facilities and psychiatric institutions. The inmates of such closed
environments are vulnerable to human rights violations given their isolation
from society and powerlessness. With reference to the author’s fieldwork in
the closed environment of correctional facilities, this essay reviews Human
Rights in Closed Environments and argues that there is a need for
governments and the broader community to interrogate the ideological basis
for detention. A human rights oriented discourse suggests that the loss of
liberty should not be exacerbated by further punitive and degrading measures;
rather, the emphasis needs to shift to a paradigm of transparency, dignified
care, responsibility and rehabilitation.
I
Introduction
With soaring rates of incarceration, the increasing privatisation of custodial
facilities, and unprecedented migration of refugees, there is an imperative in
responding to those in crisis. Through the media we catch glimpses of the plight of
people in need. We witness masses of displaced people willing to undertake
perilous journeys to flee war, atrocities and humanitarian disaster; we see the
negative impacts of the human warehousing of marginalised populations; and we
are aware that people with intellectual disabilities may be unnecessarily segregated
from the community. As a society, we cannot put our collective heads in the sand
to ignore this state of affairs,1 given these situations present conditions where
individuals are susceptible to harm. How should society respond to those who
breach our laws or borders? How should we treat those who legitimately seek
refuge or require mental health care? Does our society seek to heal, snub or exact
vengeance?

1
Lecturer, Faculty of Law, University of Sydney, Australia; PhD candidate (criminology) (Syd).
Richard Ackland, ‘IHMS Revelations Bolster the Legal and Political Case against the Detention of
Asylum Seekers’, The Guardian (online), 23 July 2015 <http://www.theguardian.com/australianews/2015/jul/23/ihms-revelations-bolster-the-legal-and-political-case-against-the-detention-ofasylum-seekers?CMP=soc_567>.
© 2015 Sydney Law Review and author.
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Within this context, Human Rights in Closed Environments,2 edited by
Bronwyn Naylor, Julie Debeljak and Anita Mackay, presents a timely contribution
to existing scholarship and prevailing social commentary. This comprehensive
publication, emerging from a Monash University Australian Research Council
(ARC) Linkage Grant and 2012 conference, is significant in furthering our
understanding of international human rights obligations and how these rights should
apply in circumstances where individuals are denied their liberty. Uncomfortable
realities are exposed as the authors delve into the invisible lives of inmates. The
book embraces international and Australian human rights perspectives to analyse
how society can improve the conditions of disempowered and vulnerable
individuals detained in closed environments. In Human Rights in Closed
Environments, ‘closed environments’ are defined to include places where persons
are deprived of their liberty and not permitted to leave at will; specifically, prisons,
police cells, psychiatric institutions, closed disability units and immigration
detention centres. As Naylor states, for people subject to a custodial sentence in the
criminal justice system, the punishment is the loss of liberty. That is, we do not
imprison for punishment, rather we imprison as punishment. The loss of liberty is,
in itself, a profound form of punishment. Understood from this perspective,
imprisonment and other forms of detention should not entail further punitive,
degrading or draconian measures; incarceration should not be compounded by
‘harsh conditions, humiliation or violence’.3
This review essay starts by providing the context of my own research in
closed environments and how that frames my argument that society needs to care
about these ‘unseen’ people who inhabit these ‘unseen’ sites. This argument is
premised on the notion that democratic societies have a responsibility to
rehabilitate and treat with dignity those people who transgress social and legal
norms. People who have lost their liberty should not be further punished through
harsh and degrading conditions. Within this context, in Part III I reflect on human
rights legislative, regulatory and monitoring frameworks and Australia’s piecemeal
response to international measures. Other jurisdictions including the United
Kingdom (‘UK’) and New Zealand (‘NZ’) provide examples of the synthesis of
human rights into the everyday practices of closed environments. In Part IV, the
meaning of ‘closed environments’ is examined — what this term encompasses and
how these sites inherently challenge human rights objectives. Part V focuses on
who is confined in closed environments as inmates, patients, immigrants, or as
individuals with a disability. Society often finds it difficult to treat with dignity, let
alone compassion, or assimilate such people who exhibit aberrant behaviour or
breach the laws of the land. The review essay concludes with an evaluation of why
we should care about people who are placed in detention, and how indifference to
humane treatment reflects on society as a whole.
2
3
Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments
(Federation Press, 2014).
Bronwyn Naylor, ‘Human Rights and Respect in Prisons: The Prisoners’ Perspective’ in Bronwyn
Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation
Press, 2014) 84.
2015]
II
REVIEW ESSAY
619
Approaches to Detention
A key index of democracy is how a government administers detention, yet
approaches to confined, vulnerable populations vary considerably.4 At one
extreme, there is the punitive and exclusionary approach based on amplifying
community fears of perceived social deviants, with the admonition of expressly
harsh punishments and oppressive, precautionary measures.5 Punitive laws and
policies suggest a ‘disregard for the rights or humanity of those being sanctioned’.6
Tabloid reporting and the charged political slogans of ‘zero tolerance’, ‘get tough
on crime’7 and ‘stop the boats’8 prey on community fears of the ‘other’, feeding
societal anger and insecurity. There is a correlation between ‘popular punitivism’9
and an increasingly risk adverse, retributive and less tolerant society.10 In this
context, seeking asylum is framed as illegal;11 ‘crimmigration’ refers to the
conflation of criminal laws and immigration policies.12 With the prevailing
‘carceral lexicon’ of ‘dangerousness and risk’ comes a focus on attaining the
complete banishment of perceived deviants from society13 — a paradigm of
exclusion.14 Pursuant to such a coercive and inherently uncaring discourse,
governments may seek to erode the civil rights and procedural safeguards that
would normally protect individuals from abuses of state power.15
The antithesis of this approach is one that expresses core values of
humanity and empathy; an approach that focuses on society’s responsibilities to
care for rather than punish those in need, and one that respects the rights of
4
5
6
7
8
9
10
11
12
13
14
15
Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary
Democracies (Cambridge University Press, 2008).
Stephen Monterosso, ‘Punitive Criminal Justice and Policy in Contemporary Society’ (2009) 9(1)
Queensland University of Technology Law and Justice Journal 13; Jonathan Simon, ‘Punishment
and the Political Technologies of the Body’ in Jonathan Simon and Richard Sparks (eds) The SAGE
Handbook of Punishment and Society (SAGE Publications, 2013) 60.
David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford
University Press, 2001) 133; Sonja Snacken, ‘Punishment, Legitimate Policies and Values: Penal
Moderation, Dignity and Human Rights’ (2015) 17(3) Punishment & Society 397.
Gabrielle Upton, ‘New Study Shows NSW is Tough on Criminals’ (Media Release of the AttorneyGeneral (NSW), 27 May 2015) <http://www.justice.nsw.gov.au/Documents/Media%20Releases/
2015/MR15%20NEW%20STUDY%20SHOWS%20NSW%20IS%20TOUGH%20ON%20CRIMI
NALS.pdf>.
Alex Reilly, ‘The Boats May Have Stopped, but at What Cost to Australia?’ The Conversation
(online), 28 August 2014 <http://theconversation.com/the-boats-may-have-stopped-but-at-whatcost-to-australia-30455>.
Monterosso, above n 5.
Simon, above n 5; Elizabeth Grant and Yvonne Jewkes. ‘Finally Fit for Purpose The Evolution of
Australian Prison Architecture’ (2015) 95(2) The Prison Journal 223; Snacken, above n 6.
Bianca Hall, ‘Minister Wants Boat People Called Illegals’, The Sydney Morning Herald (online),
20 October 2013 <http://www.smh.com.au/federal-politics/political-news/minister-wants-boatpeople-called-illegals-20131019-2vtl0.html>.
Snacken, above n 6, 399.
Grant and Jewkes, above n 10, 233.
Zygmunt Bauman, ‘Social Uses of Law and Order’ in David Garland and Richard Sparks (eds),
Criminology and Social Theory (Clarendon Studies in Criminology, Oxford University Press,
2000); Linda Mulcahy ‘Putting the Defendant in Their Place: Why Do We Still Use the Dock in
Criminal Proceedings?’ (2013) 53(6) British Journal of Criminology 1139.
Monterosso, above n 5.
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individuals to be treated as fellow humans. Where there is injustice or suffering, it
is society’s responsibility to assist, heal or rehabilitate. The explicit goals are
reform and social inclusiveness instead of vengeance and, where possible,
reintegration into society rather than indefinite exile.16 A humane custodial
philosophy places importance on dignity and the avoidance of further
degradation.17 While there are ‘perpetual tensions’ between the responsibilities to
detain individuals in certain circumstances and the goal of rehabilitation, it is
possible to design facilities to be relatively open, rehabilitative and therapeutic in
order to ‘ease psychological pressures, mitigate conflict and minimize
interpersonal friction’.18 With a strong commitment to human rights, Scandinavian
countries are exemplars of the notion that institutions such as prisons should not be
pivotal in solving noxious social problems.19 It is within this context that the
human rights of detained individuals may be examined. Human rights stipulate the
dignity and worth of all humans, so that even detained people retain their human
rights, except for the obvious loss of liberty.20 Individuals who are deprived of
their freedom are to be treated with respect for their inherent dignity and with the
‘right to be free from torture, inhuman or degrading treatment’.21 A human rights
approach in closed environments therefore involves a shared understanding
between custodians and detainees regarding dignity, respect and humanity.22
From an Australian perspective, given contemporary political discourse that
challenges both notions of human rights and the ideological underpinnings of
incarceration and detention, there is a need to examine our international and
national rights and responsibilities. Current sentiment suggests that even discussing
human rights and closed environments together may appear surprising, if not
contradictory, to some sectors of Australian society. Why should we care about
what happens to ‘others’ in remote or inaccessible sites? It seems that society’s
rationales for confining people, and the manner in which we treat them, require a
contemporary (re)appraisal to ensure respect for humanity as well as transparency
and accountability in procedure. In particular, the application, implementation and
16
17
18
19
20
21
22
John Pratt and Thomas McLean, ‘Inspector Wallander’s Angst, Social Change and the
Reconfiguration of Swedish Exceptionalism’ (2015) 17(3) Punishment & Society 322;
Jessica Benko, ‘The Radical Humaneness of Norway’s Halden Prison’, The New York Times
(online), 26 March 2015 <http://www.nytimes.com/2015/03/29/magazine/the-radical-humanenessof-norways-halden-prison.html?_r=0>.
Snacken, above n 6.
Benko, above n 16.
Victor Lund Shammas, ‘The Pains of Freedom: Assessing the Ambiguity of Scandinavian Penal
Exceptionalism on Norway’s Prison Island’ (2014) 16(1) Punishment & Society 104, 105; Bauman
above n 14, 212.
UN Human Rights Committee (HRC), CCPR General Comment No 21: Article 10 (Humane
Treatment of Persons Deprived of Their Liberty), 44th sess, HRI/GEN/1/Rev.9 (Vol I) (10 April
1992) <http://www.refworld.org/docid/453883fb11.html> (‘CCPR General Comment No 21’);
Anita Mackay, ‘Operationalising Human Rights Law in Australia: Establishing a Human Rights
Culture in the New Canberra Prison and Transforming the Culture of Victoria Police’ in Bronwyn
Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation
Press, 2014) 261, 277.
Jem Stevens, ‘Changing Cultures in Closed Environments: What Works?’ in Bronwyn Naylor,
Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press,
2014) 228, 238.
Ibid 239.
2015]
REVIEW ESSAY
621
monitoring of human rights in closed environments should be considered and in
this regard, Human Rights in Closed Environments is a welcome contribution.
My response to this book is framed and informed by my own research in
closed environments, specifically correctional centres of the New South Wales
(NSW) criminal justice system. Through one-on-one semi-structured interviews
with 31 inmates, I have been researching the subjective experience of inmates who
use audio visual links from prison to ‘appear’ in court and to access legal advice.
Implicit in my research has been an interrogation of emergent communication
technologies and how these technologies impact prisoners’ experience of legal
procedure and access to justice. In particular, I examine the repercussions on
notions of due process, fairness and human dignity in this technological paradigm of
exclusion. I argue that audio visual link technologies generate a new and heightened
zone of demarcation in criminal justice by spatially containing prisoners in sites of
incarceration, remote from their legal representatives and isolated from impartial
courtroom space. Video link technologies effectively conflate the custody dock and
legal conferencing space with the space of prosecution and punishment,
compromising the perceived impartiality of proceedings.23 Notions of equality of
arms and neutrality are implicated when an incarcerated person appears on a screen
in a remote courtroom, locked within the space of state control and a regime of
punishment. As such, video links may be seen as technologies that are punitive,
harsh and degrading of the individual. Drawing on my prison fieldwork, I have
developed an understanding of how unseen these people and sites are to the general
community and how easy it may be for society to forget about its disadvantaged and
often despised members. Within a broader context of detention, in this review essay
I question the moral compass of a society that inflicts cruel, inhuman or degrading
treatment on people deprived of liberty.
III
International and National Human Rights Legislation
Human Rights in Closed Environments responds to a renewed interest in human
rights discourse and the raft of international treaties that seek to articulate
fundamental human values. While the editors provide that the ‘internationally
recognised suite of human rights guarantees is at the pinnacle’ of their regulatory
framework,24 they do not actually provide a definition of ‘humane’ values or
‘human rights’ measures. They do, however, refer to the core human rights
protections and measures for people deprived of liberty as including treatment with
‘humanity and with respect for the inherent dignity of the human person’, as well
as ‘freedom from torture and other cruel, inhuman and degrading treatment and
23
24
Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Routledge, 2011);
Anne Wallace and Emma Rowden, ‘Gateways to Justice: The Use of Videoconferencing
Technology to Take Evidence in Australian Courts’ in Proceedings of the 9th European Conference
on e-Government (Academic Conferences and Publishing International, 2009) 653–60.
Bronwyn Naylor, Julie Debeljak and Anita Mackay, ‘Introduction: Implementing Human Rights in
Closed Environments’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights
in Closed Environments (Federation Press, 2014) 1, 2.
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punishment, and rights to life, privacy and family’.25 These should be important
guarantees for people deprived of liberty.
My research was not founded on a human rights approach, yet throughout
my fieldwork, many prisoners spoke to me of the pains of isolation,
disempowerment and not being treated as a human being. During her video link
court appearance from prison, F05 said: ‘I felt like an alien … I’m out of the
picture, I’m just on the screen’. M04 was positive towards video links from prison
although he said:
You do kind of have a little bit of apprehension because you’re only a bunch
of pixels on a screen; if whether or not the judge is going to be able to look at
you and actually feel who you are, rather than just see you wearing green
[prison attire].
I gathered much data relating to the dehumanising impact of video technologies
in prison and how they contribute to prisoners’ sense of isolation from the
outside world.
International measures relevant to closed environments include the Optional
Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (‘OPCAT’).26 Pursuant to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’),27
OPCAT provides a monitoring mechanism at international and national levels.
Other relevant treaties include the International Covenant on Civil and Political
Rights (‘ICCPR’)28 and the Convention on the Rights of Persons with Disabilities
(‘CRPD’).29 However, while Australia has agreed to human rights treaties, the
book’s editors note that the process of actual ratification is incomplete, meaning that
Australia ‘falls far short of comprehensive domestic implementation’ of its human
rights responsibilities.30 So while human rights may be ‘ethically attractive’,31 there
are limited legal enforcement mechanisms. In the absence of a comprehensive and
uniform national approach to closed environments, the implementation and
enforcement of human rights is compromised.32 For example, at a state and territory
level, only the Australian Capital Territory (‘ACT’) and Victoria have enacted
domestic legislation to give effect to human rights for prisoners.33 Some of the
25
26
27
28
29
30
31
32
33
Ibid 3.
Opened for signature 4 February 2003 (entered into force on 22 June 2006)
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCAT.aspx>.
Opened for signature 10 December 1984 (entered into force on 26 June 1987)
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx>.
Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx>. The ICCPR was ratified by
Australia in 1980, but has not been made part of domestic law.
Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
<http://www.un.org/disabilities/convention/conventionfull.shtml>. The CRPD was ratified by
Australia in 2008, but existing domestic law falls short of obligations under the Convention.
Naylor, Debeljak and Mackay, above n 24, 3.
Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (Penguin Books,
3rd ed, 2008) 90.
Ibid.
Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic);
Mackay, above n 20, 261–94; Anita Mackay, ‘Women in Australian Prisons and Why They Need
2015]
REVIEW ESSAY
623
ICCPR provisions are reflected in Victoria’s Charter of the Human Rights and
Responsibilities Act 2006 (Vic).34 Although human rights conventions may not be
directly enforceable at a federal level,35 they still exert some influence in Australia.
For example, legislation should be consistent with international instruments, and the
High Court has considered that international human rights laws may influence the
common law.36 However, without a national strategy and only patchwork responses
to human rights, the operationalisation of human rights into the day-to-day
procedures in closed environments is impeded. To be effective, human rights
regulations require translation into the everyday practice of frontline personnel
working inside closed environments.37 Australia’s legislative situation has become
increasingly contentious. For example, in relation to Australia’s policy of
mandatory and indefinite offshore detention of asylum seekers, the President of the
Human Rights Commission, Professor Gillian Triggs stated:
Australia’s immigration laws are exceptional. No country in the world,
especially not comparable countries such as the UK, Canada, New Zealand
and the US, mandates the indefinite detention of children as the first policy
option and then denies them effective access to the courts to challenge the
necessity of their detention over months and even years.38
The atypical Australian approach results in tensions in domestic and
international political commentary. Focusing on whether immigration detention, as
a core function of the state, may be delegated to private contractors, Penovic
argues that the ‘ill-conceived and punitive detention regime’ undermines the
realisation of human rights in Australia.39 In terms of the criminal justice system,
Grossman identifies the over-representation of Indigenous Australians in prisons as
a major human rights issue.40 These issues manifest an indifference, at least at a
political level, to the human rights of detained people. How, then, can Australia
stand in judgment of other nations’ human rights violations?
All the authors in Human Rights in Closed Environments emphasise the
need for appropriate regulatory frameworks and independent monitoring
34
35
36
37
38
39
40
Human Rights Protections’ Regarding Rights (online), 4 October 2013 <http://asiapacific.anu.edu.au/
regarding-rights/2013/10/04/women-in-australian-prisons-and-why-they-need-human-rightsprotections/>.
Patsie Frawley and Bronwyn Naylor, ‘Human Rights and People with Disabilities in Closed
Environments’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in
Closed Environments (Federation Press, 2014) 48, 52, 55.
Bronwyn Naylor, ‘Researching Human Rights in Prisons’ (2015) 4(1) International Journal for
Crime, Justice and Social Democracy 79.
Naylor, above n 3, 93.
Naylor, Debeljak and Mackay, above n 24, 3.
Gillian Triggs, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention
2014’ (Speech delivered to mark the tabling in Australian Parliament of the Inquiry Report,
12 February 2015) <https://www.humanrights.gov.au/news/speeches/forgotten-children-nationalinquiry-children-immigration-detention-2014>.
Tania Penovic, ‘Privatised Immigration Detention Services: Challenges and Opportunities for
Implementing Human Rights’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human
Rights in Closed Environments (Federation Press, 2014) 10, 46.
Claudio Grossman ‘Implementing Human Rights in Closed Environments through the United
Nations Convention against Torture’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds),
Human Rights in Closed Environments (Federation Press, 2014) 125, 134.
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mechanisms. Negative, secret cultures can flourish in closed environments, so the
paradigm of opacity needs to be replaced by transparency.41 External monitoring of
closed environments ensures transparency and accountability, reinforces
overarching human rights objectives and compliance, and prevents systemic
mistreatment. Certainly, more ‘permeable’ institutions are ‘less prone to the
development of abusive practices due to the transparency of the organization’.42
Monitoring policies, such as unannounced visits by scrutineers and effective
reporting, safeguard rights of complaint and remedy. In my research, I examine
how, as a consequence of the expanding use of audio visual technologies for
prisoners’ access to legal advice, legal representatives such as Legal Aid lawyers
are physically visiting prisons less frequently. In turn, this affects the independent
scrutiny of prisons, prisoners and their conditions, making prisons increasingly
unknowable and isolated.
Entwined with the regulatory and monitoring mechanisms is the various
authors’ focus on the need for cultural change, both within closed environments
and in broader society. Throughout the book, strategies and organisational policies
are suggested to increase an awareness and advancement of human rights. The
challenges and positive experiences of closed environments in other jurisdictions
such as NZ and the UK, where human rights legislation has been implemented, are
examined. These provide compelling evidence of how human rights in closed
environments may flourish given appropriate monitoring mechanisms to prevent
cruel, inhuman or degrading treatment of detainees.
IV
What are Closed Environments?
In Human Rights in Closed Environments, ‘closed environments’ are defined as ‘any
place where persons are or may be deprived of their liberty by means of placement in
a public or private setting in which a person is not permitted to leave at will by order
of any judicial, administrative or other order’; specifically, ‘prisons; police cells;
forensic psychiatric institutions; closed mental health and disability units; and
immigration detention centres’.43 These are examples of what Goffman terms ‘total
institutions’; that is, enclosed places where blocks of ‘like-situated’ people reside and
lead formally structured lives, isolated from the broader community.44 An inmate’s
entire existence is regulated by the institution.45 Enforced spatial confinement effects
a straightforward solution to dealing with ‘the unassimilable, difficult to control, and
otherwise trouble-prone sector of society’.46 Such sites, as I found, are closed, that is,
non-public and breach-resistant with strict security protocols governing access and
egress. They are hidden sites that most members of society never step inside. Instead,
41
42
43
44
45
46
Stevens, above n 21, 253.
Alan Quirk, Paul Lelliott, and Clive Seale, ‘The Permeable Institution: An Ethnographic Study of
Three Acute Psychiatric Wards in London’ (2006) 63(8) Social Science & Medicine 2105, 2114.
Naylor, Debeljak and Mackay, above n 24, 1.
Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates
(Anchor Books, 1961) xiii, 7; Stevens, above n 21, 230.
Mackay, above n 20, 277.
Bauman, above n 14, 208.
2015]
REVIEW ESSAY
625
our ideas and understandings of these opaque places are abstractions, often
constructed through the media, film and television.
It is little wonder that the authors adopt the term ‘closed environments’47 to
refer to places of incarceration, detention and confinement. Once, prisons were
highly visible and ostentatious proclamations of punishment. Now contemporary
prisons seem camouflaged,48 their inner workings, and those of other closed
environments, are seldom revealed.49 In the criminal justice context, punishment
by imprisonment is increasingly the most concealed part of the system.50 Closed
environments are often on the fringe of urban areas or utterly isolated, as is the
case with Australia’s offshore detention centres on Manus Island and Nauru. The
remote, closed nature of these highly controlled and surveilled archipelagos51
expresses impenetrability and inviolability. But no system or environment can
remain entirely closed from interaction with its surroundings. Several scholars
suggest that the boundaries between the internal and external worlds of the
‘carceral habitus’ may be porous, and the institutions have interfaces between noncontiguous spaces, people and issues.52 Closed environments may be ‘somewhatless-than-total’ or ‘not-so-total’ due to a range of networked connections and
relationships.53 Stevens observes that closed environments ‘do not exist in a
vacuum’.54 In the context of my research, I posit that video links from prisons
increasingly act as a portal for prisoners’ interaction with the outside world. As
video links act as a conduit between conceptually linked but non-contiguous
locations, they may be seen as adding a layer of permeability to the space of the
prison, opening up opportunities for a greater level of human interaction.
However, recent Australian legislation seeks to restrict the flow of
information from immigration detention centres; provisions aim to gag an ‘entrusted
person’, such as a doctor, from disclosing conditions to the outside world.55 Such
legislation ensures that our detention centres are increasingly unknowable. These
closed environments are not only architecturally and geographically cordoned off,
but ideologically sealed as well. When society cannot see nor comprehend an
47
48
49
50
51
52
53
54
55
UNHRC, CCPR General Comment No 21, HRI/GEN/1/Rev.9 (Vol I).
Philip Hancock and Yvonne Jewkes ‘Architectures of Incarceration: The Spatial Pains of
Imprisonment’ (2011) 13(5) Punishment & Society 611, 618.
Ben Crewe, The Prisoner Society: Power, Adaptation and Social Life in an English Prison
(Clarendon Studies in Criminology, Oxford University Press, 2009).
Michel Foucault, Discipline and Punish: The Birth of the Prison (Vintage Books, 1977) 9.
Ibid.
Judah Schept, ‘“A Lockdown Facility… with the Feel of a Small, Private College”: Liberal
Politics, Jail Expansion, and the Carceral Habitus’ (2013) 17(1) Theoretical Criminology 71;
Crewe, above n 49, 5.
Keith Farrington, ‘The Modern Prison as Total Institution? Public Perception versus Objective
Reality’ (1992) 38(1) Crime & Delinquency 6.
Stevens, above n 21, 236.
See the ‘Secrecy and disclosure provisions’ of the Australian Border Force Act 2015 (Cth) pt 6;
Sarah Whyte, ‘Doctors and Teachers Gagged under New Immigration Laws’, The Sydney Morning
Herald (online), 4 June 2015 <http://www.smh.com.au/federal-politics/political-news/doctors-andteachers-gagged-under-new-immigration-laws-20150603-ghft05.html>; Greg Barns and George
Newhouse, ‘Border Force Act: Detention Secrecy Just Got Worse’, The Drum (ABC) (online),
28 May 2015<http://www.abc.net.au/news/2015-05-28/barns-newhouse-detention-centre-secrecyjust-got-even-worse/6501086>.
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environment, the possibilities of scrutiny and resistance to state authority, and the
possibility of empathy and compassion, are compromised.
These closed sites are spawned by various statutory regimes: criminal, civil,
migration, state and federal jurisdictions, and entwined with other disciplines such
as medicine. The features of Australian closed environments vary depending on the
purpose of the detention and whether the facility is government- or privately-run.
They all pose profound challenges to the notion of human rights,56 as detained
individuals rely on the closed institution for all their basic needs.57 Stevens
examines the common features of closed environments: (1) their concern with the
management of people and the relationship between them; (2) the power imbalance
in the relationship between staff and detainees; (3) the closure of the environment
from the public scrutiny and potential to develop its own culture; and (4) their
administration by hierarchical public or private bodies.58 In a closed environment,
implementing dignity, humanity and a ‘moral climate’ may seem incompatible
with everyday operations.59
In her chapter, Penovic examines the outsourcing of Australian immigration
facilities to private concerns since 1998.60 Globally, the privatisation of closed
environments has seen the growing involvement of multinationals including Serco,
G4S and Transfield Services.61 Penovic draws attention to the inherent tensions
between profit-making concerns and human rights objectives. These privatised
sites are problematic and the harsh conditions of mandatory detention are
‘exacerbated by the far-flung and remote’ locations.62 The geographical distances
ensure difficulties in reporting disturbances, suicides, sexual assaults, self-harm
and harsh conditions to the outside world. Human rights measures, such as the
guarantee of freedom from cruel, inhuman and degrading treatment, are
particularly significant to immigration detention centres that may by-pass normal
considerations of due process.63
‘Congregate and segregated facilities’ for people with intellectual
disabilities are included in the research parameters of ‘closed environments’ by
Frawley and Naylor, as the individuals do not choose to reside there and cannot
leave at will.64 Most people with an intellectual disability live in community-based
residential facilities that can support a good standard of living. However, the
closed environments of congregate residential institutions are geographically
‘segregated from society … fenced off, and situated on the outskirts’ of urban
56
57
58
59
60
61
62
63
64
Grossman, above n 40, 125–53.
Stevens, above n 21, 228.
Ibid 231.
Alison Liebling, ‘Moral Performance, Inhuman and Degrading Treatment and Prison Pain’ (2011)
13(5) Punishment and Society 530, 533–4.
Penovic, above n 39.
Ibid 12–13, 18; Ben Butler, ‘Transfield Soars as $1.2b Detention Contract Win Gives Shares $80m
Lift’, The Sydney Morning Herald (online), 24 February 2014 <http://www.smh.com.au/business/
transfield-soars-as-12b-detention-contract-win-gives-shares-80m-lift-20140224-33bkf.html>.
Penovic, above n 39, 46.
Anne Owers, ‘Comparative Experiences of Implementing Human Rights in Closed Environments:
Monitoring for Rights Protection’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds),
Human Rights in Closed Environments (Federation Press, 2014) 209.
Frawley and Naylor, above n 34, 48, 70–1.
2015]
REVIEW ESSAY
627
areas.65 Siting these facilities on the fringe of society contributes to isolation. The
authors again question how fundamental human rights can operate in these
environments that embody a lack of respect for humanity.66
In terms of the criminal justice system, the ‘intentionally coercive and
punitive’ structure of prisons seems antithetical to a human rights approach. There
are inherent difficulties in reconciling ‘dignity’ and ‘humane treatment’ within the
operations of a dehumanising prison.67 By default, imprisonment is likely to be
‘cruel, inhuman and degrading’68 so that human rights protections for prisoners is
‘largely theoretical’.69 Yet Naylor argues that a respect for human dignity should
define the environment and everyday procedures within.70 Owers examines human
rights in prisons from the perspective of the UK’s National Preventive Mechanism
(‘NPM’) pursuant to OPCAT.71 She emphasises the importance of physically
seeing these sites of incarceration: ‘you cannot inspect custodial environments by
looking at papers … you need to “be there and smell the urine”’.72 Owers notes
that, as these facilities and their operations are non-public and hidden, they may
‘invent their own reality and norms’.73 Given the lack of public gaze and the
implicit power imbalances, she emphasises the need for independent monitoring
because closed environments can ‘go bad very quickly’ if the facility loses ‘its
moral purpose’.74
Mackay addresses how the raison d’être of prisons and police custody
conflicts with human rights objectives.75 She too examines the inherent power
imbalances in prisons and the challenges of operationalising human rights values to
protect incarcerated individuals in an environment that ‘counteract[s] the intention
of human rights law’.76 Her focus is particularly on the ACT’s Alexander
Maconochie Centre, a prison established with an express human rights agenda,
ensuring the ACT’s status as having the most comprehensive human rights
protection for prisoners in Australia.77 Nevertheless, there are question marks
regarding the success of the ACT’s implementation of human rights into prison as
it grapples with a skyrocketing inmate population, increasing costs and a lack of a
rehabilitation framework.78
65
66
67
68
69
70
71
72
73
74
75
76
77
78
Ibid 68, 72.
Ibid 82.
Stevens, above n 21, 239.
Naylor, above n 3, 92.
Naylor, above n 35, 81.
Naylor, above n 3, 86.
Owers, above n 63, 209–27.
Ibid 211.
Ibid 215.
Ibid 215–6.
Mackay, above n 20.
Ibid 261.
Ibid 268.
Lorana Bartels, ‘State of Imprisonment: Can ACT Achieve ‘Human Rights’ Prison?’, The
Conversation (online), 17 April 2015 <http://theconversation.com/state-of-imprisonment-can-actachieve-a-human-rights-prison-39119>; ACT Auditor-General, The Rehabilitation of Male
Detainees at the Alexander Maconochie Centre, Report No 2/2015 <http://www.audit.act.gov.au/
auditreports/reports2015/Report%20No.%202%20of%202015%20The%20Rehabilitation%20of%2
0male%20detainees%20at%20the%20Alexander%20Maconochie%20Centre.pdf>.
628
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Inmates, Patients, Prisoners and Detainees
This part focuses on the population that is confined in closed environments. Who
are these inmates, detainees, perceived outlaws, exiles or social transgressors?
Penovic observes that the detainees in mandatory immigration detention are
‘seeking protection’ and have been detained indefinitely without criminal charge or
conviction.79 Australia’s immigration facilities hold adults and children. As at 30
June 2015, there were 2,013 people in immigration detention, and 1,189 people in
community detention in Australia. Included in these figures were 127 children in
immigration detention facilities and 642 children in community detention.80
Other ‘inmates’ relevant to Human Rights in Closed Environments are
people with intellectual disabilities who have been placed in closed environments,
usually by administrative decision.81 Frawley and Naylor examine the plight of
these individuals, categorised as people who: (a) had always lived in a residential
institution; (b) had complex needs, challenging behaviour or impairments; or (c)
were incapacitated.82 Prison inmates are a clear example of people who inhabit
closed environments. Naylor, Owers and Mackay separately draw attention to the
rights of prisoners in both Australia and the UK. Incarcerated people have
‘multiple vulnerabilities’ that require recognition from their first encounter with
frontline police officers.83 Prisons have an over-representation of people who may
have mental health issues or intellectual disabilities, are Indigenous, young, from
‘over-policed’ communities, and may have been victims of crime themselves.84
These factors make such individuals vulnerable before the criminal justice system,
in addition to being ‘politically powerless, unpopular people’ who have been
exiled from society.85 This is a population that lacks voice,86 is often from areas of
entrenched disadvantage87 and may be indigent.88 Mackay suggests that these
vulnerabilities are the norm, underlining the importance of human rights
protections in closed environments.89 Prisoners are ‘juridically paradoxical
79
80
81
82
83
84
85
86
87
88
89
Penovic, above n 39, 46.
Australian Human Rights Commission, Immigration Detention Statistics (30 June 2015)
<https://www.humanrights.gov.au/immigration-detention-statistics>:
As a result of Australia’s system of third country processing for asylum seekers who
arrived by boat without a visa, as at 30 June 2015 there were:
 655 asylum seekers (including 88 children) in detention in Nauru;
 945 adult asylum seekers in detention on Manus Island, Papua New Guinea.
Frawley and Naylor, above n 34.
Ibid 67.
Mackay, above n 20, 273.
Ibid 274.
David C Fathi, ‘The Challenge of Prison Oversight’ (2011) 47(4) American Criminal Law Review
1453.
Naylor, above n 35.
Tony Vinson, Margot Rawsthorne, Adrian Beavis and Matthew Ericson Dropping Off the Edge:
The Distribution of Disadvantage in Australia 2015 (Jesuit Social Services/Catholic Social
Services Australia, 2015) <http://www.dote.org.au/findings/full-report/>.
Anne Grunseit, Suzie Forell and Emily McCarron, Taking Justice into Custody: The Legal Needs of
Prisoners (Law and Justice Foundation of New South Wales, 2008).
Mackay, above n 20, 276.
2015]
REVIEW ESSAY
629
being[s]’;90 having broken the tacit pact with society to obey the laws of the land,
they may be punished and banished from society. Yet prisoners remain citizens and
the purpose of imprisonment should be their ‘rehabilitation with a view to their
return, as positive and active members, of the broader society’.91 The notion of
rehabilitation seems somewhat lost at present in our risk-adverse and increasingly
punitive society.
VI
Human Rights Challenges
There are major challenges in making closed environments more compliant with
human rights approaches. While my own research focus has not been directly on
human rights abuses, the degradations of incarceration were narrated to me during
my prison fieldwork. For example, prisoners spoke of the indignity of invasive
strip searches that are required on entering, leaving and returning to prison. One
woman (F01) said:
When they strip search you, you’ve got to take everything off and turn around
naked and lift your feet so they see your soles, and … you know that’s quite
humiliating actually, yeah. I mean, God, I’m only a driving offender, I don’t
know why I have to go through all that stuff.
The strip search is part of the transition from civilian self to the institutionalised
self; a stripping of individual autonomy and a ‘personal defacement’.92 A positive
consequence of video link court appearance is that prisoners avoid the abasement
of strip searches.
Another degradation of incarceration is the prison uniform or ‘prison
greens’. My research interest centred on how inmates felt about their prison-clad
appearance during audio visual links from prison with remote courtrooms, as
compared with physically going to court and wearing civilian clothing. F12 told
me: ‘I hate appearing in prison greens, it’s horrible, I mean, like it’s the worse
possible way you could present yourself.’
Indeed, it is hard to contemplate a more demeaning and stigmatising outfit
for court matters. Prisoners were acutely aware of the demarcation created by their
remote and prison-clad appearance and that they were denied the opportunity to
make a good impression on the remote judge or magistrate. The prisoners I
interviewed spoke of their preference for wearing their civilian clothes that,
according to F16: ‘Make you look like a person, not just an inmate’.
F14 felt that wearing greens generated a negative impression and she felt ‘a
lot more comfortable and, umm, just a little bit more human’ wearing her own
clothes for court. The prison uniform is ‘synonymous with culpability’93 and
another violation of the self. Prison attire is an ‘embodiment of punishment’94 and
90
91
92
93
94
Foucault, above n 50.
Graeme Orr, ‘Ballotless and Behind Bars: the Denial of the Franchise to Prisoners’ (1998) 26(1)
Federal Law Review 55, 61.
Goffman, above n 44, 14–20.
Grunseit, Forell and McCarron, above n 88, 253–4.
Juliet Ash, Dress behind Bars: Prison Clothing as Criminality (IB Tauris, 2009).
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‘raiments of shame’.95 Prisoners are thereby ‘othered’ and excluded from society
through wearing signs of their spatial estrangement.96 These are issues that
highlight some of the tensions implicit in achieving humane treatment in closed
environments and satisfying the ideals of human rights discourse.
The enforcement of human rights obligations is complicated when costcutting measures are implemented, and when private companies assume what has
been traditionally a state responsibility for the care of vulnerable individuals.
Should corporations be enabled to profit from incarceration?97 Penovic argues that
the Australian Government remains ‘responsible under international law for the
conduct of the non-government entities’ that manage detention in the offshore
locations.98 Even where a private company operates a detention centre, the
Government has a duty of care towards the detainees that is ‘non-derogable’.99
Privately-run facilities must be administered in a manner that acknowledges the
profound significance of the loss of personal liberty. Yet, successive Australian
governments have sought to distance themselves from the immigration detention
centres and ‘have failed to implement effective monitoring and oversight
mechanisms’.100 Penovic concludes that the involvement of profit-making
enterprises in closed environments is ‘inherently inconsistent with human rights
and intrinsically abusive’.101 The outsourcing of immigration detention and the
privatisation of prisons to profit-making entities are controversial and ideologically
problematic for a number of reasons. First, the delegation of a core state role to a
private operator compromises democratic values as well as legal process. Second,
the notion of profit-making from human suffering may be considered morally
repugnant. There is an inherent conflict of interest between a public desire to
decrease levels of incarceration, and a private operator’s business strategies aimed
at maximising an incarcerated population.102
In terms of people with intellectual disabilities, their fundamental rights
should be consistent with the general community — respect, autonomy and
dignity, and equality before the law.103 Yet, Frawley and Naylor’s research
indicated higher risks of human rights abuse for people in closed, institutional
care.104 The human rights of this population are frequently contested or not
recognised.105 Complexities especially arise when individuals’ behaviour has
brought them into contact with the criminal justice system. Physical restraint, loss
95
96
97
98
99
100
101
102
103
104
105
Yvonne Jewkes, ‘Book Review: Dress Behind Bars: Prison Clothing as Criminality by Juliet Ash’
(2010) 6(1) Crime, Media, Culture 118.
Bauman, above n 14, 208.
Penovic, above n 39, 18.
Ibid 17.
Ackland, above n 1.
Penovic, above n 39, 46.
Ibid 47.
Allan Brown, ‘Economic Aspects of Prison Privatisation: The Queensland Experience’ in David
Biles and Julia Vernon (eds) Private Sector and Community Involvement in the Criminal Justice
System: Proceedings of a Conference Held 30 November–2 December 1992, Wellington, New
Zealand (Australian Institute of Criminology, 1994) <http://www.aic.gov.au/media_library/
publications/proceedings/23/brown.pdf>.
Frawley and Naylor, above n 34, 50, 81; CRPD art 12.
Frawley and Naylor, above n 34, 67.
Ibid 70.
2015]
REVIEW ESSAY
631
of liberty and medicalised chemical restraint may be imposed, challenging a
human rights approach.106 Ultimately, the authors conclude that the human rights
of people with intellectual disabilities must be considered in terms of: first, what
are their rights in a closed environment; and second, the right to not be contained at
all.107 Within a discourse of risk, control and harm minimisation, people with
intellectual disabilities face continuing challenges in realising fundamental rights
such as liberty, privacy and freedom from involuntary medication.
Overcrowding represents a human rights challenge in Australian prisons
where the national prison population is growing significantly. Overcrowding of
facilities translates into psychological pains, a lack of space and privacy, increased
tensions, compromised sanitary conditions and safety risks for both prisoners and
staff.108 Recognising that Australian prisoners do not suffer ‘civil death’,109
prisoners retain their rights of citizenship, other than the obvious loss of liberty.110
Naylor investigates how these rights can be protected in the coercive situation of
incarceration. She concludes that a fundamental concern for prisoners is to be
recognised as a fellow human being and to be accorded respect.111 Owers examines
the synthesis of human rights into UK prisons and argues that this not only protects
against abuses of power, but also enables a rehabilitative strategy.112 Unlike
Australia, the UK has implemented a National Preventive Mechanism pursuant to
OPCAT. In this context, Owers argues for approaches that emphasise ‘ethics,
values and desistance’ and to treat prisoners as humans rather than ‘as collections
of criminogenic factors’.113 Following this argument, prisons need to offer
purposeful activities for prisoners. Punishment by incarceration should be used
sparingly; furthermore, prisons need to offer real opportunities for positive change
and self-development for prisoners.114
The over-representation of Indigenous Australians in prison is a significant,
if not urgent, human rights issue mentioned briefly in Human Rights in Closed
Environments. Aboriginal and Torres Strait Islander adults are 15 times more
likely to be incarcerated than non-Indigenous adults. The figures for juvenile
justice are worse still, with Aboriginal and Torres Strait Islander youths 24 times
more likely to be incarcerated than non-Indigenous youths.115 The rate of
imprisonment of Indigenous women is particularly disturbing, with approximately
one-third of female prisoners being Indigenous, while they account for only 2% of
the general population.116 The ripple effects of over-representation, as both
106
107
108
109
110
111
112
113
114
115
116
Ibid 78.
Ibid 81.
Naylor, above n 3, 96–7.
Ibid 84.
Mackay, above n 20, 277.
Naylor, above n 3, 123.
Owers, above n 63, 222–3.
Ibid.
Ibid 226.
Jessica Kidd, ‘Over-representation of Indigenous Australians in Prison a Catastrophe, Says Mick
Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner’ (2014) ABC News
(online), 5 December 2014 <http://www.abc.net.au/news/2014-12-04/number-of-indigenousaustralians-in-prison-a-’catastrophe’/5945504>.
Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators (2014)
<http://www.pc.gov.au/research/ongoing/overcoming-indigenous-disadvantage/key-indicators-
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offenders and victims, and the high rates of recidivism are felt by the broader
community, creating intergenerational disadvantage, family deprivations, the loss
of leaders and parents, and grave social rupture.
Human rights instruments, however, are not a panacea for cruelties or
degrading treatment. While there have been many significant human rights
developments throughout the world, Grossman states that ‘it cannot be affirmed that
torture has decreased in the world’.117 Furthermore, detention conditions remain
generally disgraceful.118 There are failures in the implementation of human rights
strategies and grievance procedures, and governments continue to act with impunity.
Despite these shortcomings, Grossman strongly advocates for a continuing aspiration
to protect individuals in closed environments. The goal of dignity, humanity and
freedom from cruel, inhuman or degrading treatment is a worthy struggle.119 In this
regard, OPCAT is described as a positive ‘groundbreaking’ mechanism for
implementing human rights in closed environments, and Pierce examines the benefits
that have flowed to NZ in ratifying this instrument and effecting preventative
mechanisms.120 The implementation of NPMs has furthered transparency and
accountability, and improved custodial conditions in NZ.121 Challenges remain in NZ
in terms of resource allocations and the need to strengthen monitoring expertise.
Pierce reflects on the much debated process of ratification of OPCAT in Australia
and provides a non-exhaustive list of academic and advocacy work surrounding the
ratification of OPCAT in Australia.122 The benefits perceived by advocates include a
national monitoring system that would encompass prisons, juvenile justice,
immigration detention and psychiatric facilities. In 2012, the (then) Attorney-General
Nicola Roxon stated that the ratification of OPCAT would reinforce that torture is
inconsistent with the Government’s responsibility to ‘protect the rights and dignity of
all individuals’ and would demonstrate Australia’s commitment to human rights
obligations.123 OPCAT remains unratified.
In addition to the ratification and implementation of legal instruments,
positive cultural shifts are required inside facilities that are responsible for the
deprivation of liberty. However, cultural change in closed environments is a
complex task given their non-public nature and the negative values that commonly
arise in such institutions. Stevens interrogates organisational culture as referring to
‘shared assumptions and values that guide behaviour within an organisation’.124
Closed environments may exhibit a self-referential125 culture that is ‘closed and
117
118
119
120
121
122
123
124
125
2014>; Debra Jopson, ‘Aboriginal Future Locked up by Spiralling Incarceration Figures’, The
Saturday Paper (online), 23 May 2015 <https://www.thesaturdaypaper.com.au/news/lawcrime/2015/05/23/aboriginal-future-locked-spiralling-incarceration-figures/14323032001910>.
Grossman, above 40, 151.
Ibid.
Ibid 153.
Natalie Pierce, ‘Implementing Human Rights in Closed Environments: The OPCAT Framework
and the New Zealand Experience’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds),
Human Rights in Closed Environments (Federation Press, 2014) 154, 207.
Ibid 204.
Ibid 164, 204–5.
Ibid 165.
Stevens, above n 21, 231.
Owers, above n 63, 213.
2015]
REVIEW ESSAY
633
uncritical’, dehumanising and violent, and one that reflects the binary opposition of
‘us and them’, institutionalised racism, and a culture of impunity.126 These closed
environments are a function of an increasingly punitive paradigm in which
pragmatism is preferred to human rights ideals.
VII Conclusion
The strength of Human Rights in Closed Environments is in revealing how
individuals within closed environments are susceptible to human rights violations
due to the non-public nature of these sites and their inherent power imbalances,
and the resulting individuals’ own disempowerment and lack of voice.127 The book
does not shirk from exposing the vulnerabilities of detained people. Clearly,
punitive forms of detention are intrinsically detrimental to the reform and
betterment of those deprived of liberty and, I would argue, to society as a whole.
The book comprehensively addresses how societal and cultural discourses impact
the operations of closed environments,128 and how facilities must engage and
operate with human rights to ensure public trust, legitimacy, civility, and moral
authority.129 Throughout the various chapters, recommendations are made, with the
aim of shifting the paradigm from ‘closed’ to one of greater transparency. Such a
shift implicates the physical environments, monitoring policies and accountability
procedures, dedicated resources, training and specialised staff, and strong
leadership to effect cultural and organisational change.130
I argue that cultural shifts implicate the broader society and several
questions require further examination. Why should society care to engage with
human rights reform in relation to closed environments?131 Given the prevailing
climate of punitivism, is there a way for human rights ideals to be absorbed into
society’s consciousness as core values? Articulating answers to these questions
involves interrogating the purposes of detention, as well as a profound reflection
on the type of society we aspire to inhabit. Without doubt, opening sightlines into
these opaque institutions would facilitate a comprehension of how society treats its
‘others’. When the vulnerabilities of detained people are understood, as the book
details, perhaps society can reflect on the responsibility to assist, rather than the
desire to punish.132 As Naylor posits in a separate publication, would a more
human rights oriented approach to detention be achieved by having ‘a better‐
informed and less punitive community’ or ‘a more human rights‐aware
community’?133 Either way, a society may be judged by how its most
disadvantaged and despised members are treated: ‘The degree of civilization in a
society can be judged by entering its prisons’.134 Australia currently falls short on
126
127
128
129
130
131
132
133
134
Stevens, above n 21, 232–3, 240–43.
Naylor, Debeljak and Mackay, above n 24, 8–9.
Stevens, above n 21, 237.
Penovic, above n 39, 19.
Stevens, above n 21, 252.
Ibid 258; Mackay, above n 20, 281–3.
Bauman, above n 14, 212.
Naylor, above n 35, 91.
Attributed to Fyodor Dostoevsky (1821–81).
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empathy and compassion: ‘The practice of locking up children taints all of us and
is contrary to those values we admire in the Australian spirit; a generous hearted
welcome to those needing our protection and a fair go.’135 By ignoring the human
rights of those in closed environments, by shrouding the treatment of vulnerable
people in secrecy, there is a cost to Australia’s international reputation and its
democracy.136 A lack of humanity in closed environments demeans us all.
135
136
Triggs, above n 38.
Reilly, above n 8.