Operationalising Human Rights Law in Australia - SSRN papers

Operationalising Human Rights Law in Australia: Establishing a Human Rights Culture in the New Canberra Prison and Transforming the Culture of Victoria Police Anita Mackay A power imbalance is present in both prisons and police interaction with the community. Human rights law seeks to provide protections to those who are vulnerable because of this power imbalance, but prisons and police are characterised by organisational factors which counter to this objective. 'This a rticle outlines those factors in examining how the culture in such organisations might be shifted towards a more human rights oriented one. Such a shift is necessary in order to comply with domestic human rights legislation (the Human R ights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)). The experience of the Alexander Maconochie Centre (AMC) in the Australian Cap ital Territory and of Victoria Police are used as case examp les because the AMC required a human rights culture from the outset, whereas Victoria Police had to change their culture when the Charter was introduced . Senior managers were interviewed to gain insight into how this was achieved. In both cases practical strategies were de veloped that may benefit other jurisdictions. The article shows that these strategies are supported by literature from jurisdictions with greater experience of applying human rights legislation in prison and policing contexts.

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I NTRODUCTION

Huma n rights law regulates human inter action using very broad terms - for example, by requiring 'humane treatment' and prohibiting 'degrading treatment' . This article con siders how legislation intended to protect hum an rights is operationalised in prison settings on the one hand, a nd the police a s an organisation, on t he other. These are organisations where a range offactors counteract the intention of human rights law; including, the power imbalance between prison and police officers and people in prison a n d police custody, a nd adherence to entrenched practices th at makes the culture difficult to change. There are also different public perceptions about the roles performed by police and prison officers which influence how valued t hey feel. The broad question about the cultures in closed environments, including factors that aid and hinder changes intended to make them more 261

HUMAN RIGHTS IN CLOSED ENVIRONMENTS

compliant with human rights legislation, is comprehensively dealt with by Stevens in this issue.! The scope of this article is more specific. I t seeks to analyse attempts to establish a human rights culture, or change existing culture towards a more human rights compliant one , in two specific contexts - one in each of the two Australian jurisdictions that h as enacted specific human rights legislation. The discussion of the way this occurred is informed by interviews with senior managers. The contexts are : the new prison in the Australian Capital Territory (ACT) - the Alexander Maconochie Centre (AMC) - which began operation after the enactment of the Human Rights Act 2004 (ACT) (Human Rights Act) and was therefore required to comply with this legislation from its inception; and 2. the police service in Victoria, which was required to change its existing culture in response to the enactment of the Charter of .. Human Rights and Responsibilities Act 2006 (Vic) (the Charter). The Charter was described as having the 'potential to act as a catalyst and a driver for cultural change' in Victoria Police' 1.

It should be noted at the outset that Victoria Police has a broad range of responsibilities beyond holding people in custody. These include crime prevention, forensic investigation, and road safety. While human rights in closed environments is the theme of this special issue, this article will deal with Victoria Police's responsibilities more broadly, because to understand the application of human rights law to police custody it is necessary to have a fuller understanding of police culture. The analysis of these two case examples offers guidance to similar organisations in other jurisdictions that face the challenge of operationalising human rights legislation in the future. This is particularly pertinent as Australia moves towards ratification of the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), which establishes both international and national level monitoring regimes to prevent torture and other cruel, inhuman or degrading treatment or punishment in closed environments under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment." It also has relevance 1

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Jem Stevens, 'Changing Culture in Closed Environments: What Works?' (2014) 31 Law in Context 228. David Barton and Susan Tait, 'Human Rights and Cultural Change in Policing' (paper presented at the Human Rights and Policing Conference, Me lbourne, 8·10 December 2008) 3. For more detail see Adam Fletcher, 'Australia and the OPCAT' (20 12) 37(4) Alternative Law Journal 233. The ACT. Northern Territory and Tasmania have introduced Bills that will allow the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to visit places of detention in these jurisdictions once the federal government ratifies Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment - Monitoring of Places of Detention (Optional Protocol to the Convention against Torture) Bill 2013 (ACT) introduced 21 March 2013; Monitoring of Places of Detention (Optional

ESTABLISHING A HUMAN RIGHTS CULTURE IN THE NEW CANBERRA PRISON

if additional States and Territories introduce statutory human rights protections in the future.'

A Overview The article begins in Part II by outlining the human rights legislation in the ACT, as well as the human rights contained in the corrections legislation that established the AMC . It then outlines the Victorian Charter and how it applies to Victoria Police. It was this legislation that gave r ise to the need for the AMC and Victoria Police to create a human rights culture - in the case of the AMC, from its inception, and in the case of Victoria Police from the commencement of the Charter. Part III considers what a human rights culture might entail in a general sense, as well as the broader characteristics of prison and police organisations that may pose challenges for achieving compliance with human rights legislation. Part IV delves into the analysis of the specific case examples with a discussion of the strategies that were common to both the AMC and Victoria Police as they sought to achieve a human rights culture (for example, the importance of strong leadership). Part V then considers some of the differences between the two. Some of these stem from the fact that the AMC h ad to create a human rights culture from the outset, whereas Victoria Police had to change their existing culture, but others are due to the differences between prison and police culture. Both of these parts a1'e informed by semi-structured in-depth interviews conducted with one senior manager from each of these organisations.' Senior managers were chosen because the importance of leadership in driving culture change in organisations is widely recognised.' It has to be acknowledged that to fully understand an organisation's culture the

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Protocol to the Convention against Torture) (National Uniform Legislation) Bill 2013 (NT) introduced 22 August 2013 and Monitoring of Places of Detention (Optional Protocol to the Convention against Torture) Bill 2013 (Tas) introduced 17 September 2013. Weste rn Australia and Tas mania have both conducted consultation processes about the adoption of hum an rights legislation, but in both cases the government rejected the recommendations that human rights legislation be introduced. See A WA Human Rights Act: Report of the Consultation Committee for a Proposed WA Human Rights Act (2007); Tasmania Law Reform Institute, A Charter of Rights for Tasmania, Report No 10 (2007). The interviews were with the Executive Director of ACT Corrective Services , Ms Bernadette Mitcherson (30 October 2012) and the then Manager of the Human Rights, Mental Health and Disability Unit in Victoria Police, Ms Mmaskepe Sejoe (21 November 2012). This research was approved on 17 September 2012 by the Monash University Human Research Ethics Committee, Approval No CF09/2202-200900 1276, fourth amendment. See, for exa mple, Edgar Schein, Organizational Culture and Leadership (4th ed, Jossey-Bass, 2010) and Roger Gill, 'Cha nge Management - Or Change Leadership?' (2003) 3(4) Journal of Change Management 307. In relation to closed environments specifically, see Jem Stevens, 'Changing Cultures in Closed Environments: What Works?' (2014) 31 Law in Context 228, 244-245.

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perspectives of employees at a range of levels is needed, and in closed environments the perspectives of those who human rights law aims to protect are also vital. However, given that achieving a human rights culture in closed environments is an area where there is limited research (particularly research that provides positive examples), the views of senior management who are both committed to, and actively working towards, a human rights-based culture provide a valuable contribution to the debate.

II

LEGISLATIVE FRAMEWORK

This Part provides an overview of the human rights legislation in the ACT and Victoria, then details the human rights laws that apply in the AMC and to Victoria Police. This Part also r efers to the limited evidence about how this legislation is operating in practice. The ACT's Human Rights Act commenced on 1 July 2004, making the ACT the first jurisdiction in Australia to provide legislative protection for civil and political rights.' Victoria followed with the Charter, which commenced on 1 January 2007 8 These Acts incorporate some ofthe rights contained in the United Nations International Covenant on Civil and Political Rights (lCCPR) into domestic law.' Both the Human Rights Act and the Charter protect a number of rights, however, the rights of most specific relevance to people held in prison or police custody are: the right to life; 10 the right to security of the person; II a person can only be deprived ofliberty according to legal procedures; l2 protection from torture and cruel, inhuman or degrading treatment;13 the right to humane treatment when deprived of liberty; 14 and the right to be presumed innocent.lS Other rights that are also relevant include (but are not limited to): the right to equality before the law and not to be discriminated against; 16 7

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The ACT has since added the right to educa tion (8 27 A of the Human Rights Act 2004) which is from the United Nations International Covenant on Economic, Social and Cultural Rights, signed by Australia on 18 December 1972. Except for Divisions 3 and 4 of Part 3 which commenced on 1 January 2008. The International Covenant on Civil and Political Rights was ratified by Australia on 23 Nove mber 1980, however it is not expressly part of Australian law except to the extent provided for by specific legis lation, such as Commonwealth antidiscrimination legislation, the Human Rights Act and the Charter. Human Rights Act 2004 (HRA) s 9; Charter of Huma n Rights and Responsibilities Act 2006 (Charter) s 9. HRA s 18; Charter s 21. HRA , 18; Charter s 2l. HRA s 10; Charter s 10. HRA s 19; Charter s 22. HRA s 22(1); Charter s 25(1), HRA s 8; Charter s 8.

ESTABLlSHlNG A HUMAN RIGHTS CULTURE IN THE NEW CANBERRA PRISON

the the the the the

right to privacy;" right to prot ection of family and children;18 right to peaceful assembly and freedom of association' 1. right to freedom of thought, belief and religion;'· and' right to culture and religion. 21

The rights protected by the Charter and the Human Rights Act are not absolute . Limitations may be imposed by other legislation " For example, the Corrections Management Act 2007 (ACT) (Corrections Management Act) allows access to religious or cultural services in prison (Pursuant to the right to culture and religion) to be limited if it would 'undermine security or good order'." Other limitations were envisaged when the human rights legislation was drafted. For example, a person's right to liberty can be overridden if this is done in accordance with legal procedures." Notwithstanding these limitations, both the Charter and the Human Rights Act impose duties on public authorities, and 'public authorities' are defined to include the police, ministers and public officials (among others)." Relevantly to this article, Victoria Police, and the AMC as a publicly-operated prison, are both captured by this definition. The duty imposed on public authorities is two-fold: 1.

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it is unlawful for public authorities to act inconsistently with the human rights prescribed in the Charter and Human Rights Act; and whe n making decisions, consideration must be given to these rights."

The main exception to this duty is where it is not possible for the public authority to have made a different decision or acted in a different way because they wer e complying with different legislation that is not compatible with human rights - for example, Commonwealth legisla tion. 27 The question the n becomes what remedy does a person have if they consider that a public authority has breached this duty? The answer is different in the ACT a nd Victoria. In the ACT an action may be brought in the Supreme Court directly (or alongside another cause of action) .'" In Victoria, an action can only be brought if the pe rson has another cause of 17 18 19 20 21 22 23 24 25

26 27 28

HRA s 12; Charter s 13. HRA ss 11 and 12; Charter 58 13 and 17. HRA s 15; Charter s 16. HRA s 14; Charter s 14. HRA s 27; Charter s 19. HRA s 28; Charter s 7. Corrections Management Act 2007 (ACT) (CMA) s 55(3)(a). HRA s 18; Charter s 21. RRA 8 40; Charter 8 4. HRA s 40B; Charter s 38. RRA s 40B(2); Charter s 38(2). There is also an exception provided for religious bodies in Victoria which is not relevant to this discussion - see Charter s 38(1). HRA s 40C(2). 265


action,29 for example, in tort law or for judicial review of an administrative

decision.30 The court cannot award damages in either jurisdiction if the legislation is found to have been breached. 3l An additional way that human rights may be protected in both Victoria and the ACT is by the courts' power to either reinterpret legislation in a way that makes it compatible with human rights,32 or make a declaration that it is incompatible. 33 This avenue is of particular relevance in Victoria where action cannot be taken directly for an alleged breach of a human right by a public authority. Debeljak explains this as follows: Once the law is given a rights-compatible interpretation, the potential violation of human rights will be avoided. The rights-compatible interpretation, in effect, becomes your remedy - the law is re-interpreted to be rights·compatible, the public authority ha s obligations under s 38(1), and the s 38(2) exceptions to unlawfulness do not apply."

It is against this backdrop that the specmc human rights requirements that apply in the AMC and Victoria Police can be considered.

A Specific Human Rights Requirements in

the Alexander Maconochie Centre The AMC is the ACT's first and only prison. It commenced operations on 30 March 2009." The Corrections Management Act es tablished the prison and was drafted after the Human Rights Act was in operation. Accordingly, it had to be accompanied by a statement of human rights (in)compatibility when introduced in the ACT Legislative Assembly." These statements are required for all new legislation and they detail how the Bill is consistent with human rights, and if it is not, how it is inconsist· ent with human rights." The objects ofthe Corrections Management Act include a requirement tha t functions under the Act be exercised in a manner which ensures that 29 30 31 32 33

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Charter s 39(1). The second example is mentioned in s 39(2) of the Charter. HRA s 40C(4); Charter s 39(3). HRA s 30: Charter s 32. HRA s 32; Charter s 36. Such a declaration does not affect the validity or operation of the legislation - see s 32(3) of the HRA a nd s 36(5) of the Charter. It is then up to the responsible minister in Victoria and the Attorney-General in the ACT to respond to the declaration in Parliament (s 37 of the Charter; s 33 of the HRA). For a case example see Re an Application for Bail by Islam [2010) ACTSC 147. Julie Debeljak, 'Hum an Rights Responsibilities of Public Authorities Under the Charter of Rights' (P aper presented at the Law Ins titute of Victoria Charter of Rights Conference, Melbourne, 18 May 2007) 19. For a history of the developments and rationale that led to the ACT building a prison see Anita Mackay, 'The Road to the ACT's First Prison (the Alexander Maconochie Centre) was Paved with Rehabilitative Intentions' (2012) 11(1) Canberra Law Review 33. As required by HRA s 37. There is an equivalent requirement in Victoria under s 28 of the Charter.

ESTABLISIDNG A HUMAN RIGHTS CULTURE IN THE NEW CANBERRA PRISON

prison management 'respect and protect the detainee's human rights'" and promote 'the detainee's rehabilitation and reintegration into society'.'. The Corrections Management Act also repeats the prohibition of torture or cruel, inhuman or degrading treatment'Oand requirement for decent, humane and just treatment" found in the Human Rights Act." Section 12 is another key provision of the Corrections Management Act, which prescribes minimum living conditions for detainees that the Director-General 'mus t ensure, as far as practicable'." Examples include: 'suitable accommodation and bedding for sleeping in reasonable privacy and comfort';" 'reasonable access to the open air and exercise' (at least one hour per day);" reasonable opportunity to have visitors" and communication with a lawyer;" access to health services;" and opportunities for r eligious, spiritual and cultural observance .4 • The Corrections Management Act makes a distinction between these minim urn living conditions and privileges. Section 154 of the Corrections Management Act defines 'privileges' as 'any amenity, facility or opportunity the detainee may have the benefit of in detention'. That provision also gives examples that include 'participating in activities other than those forming part of a detainee's case management plan' and 'pursuing hobbies and crafts'. The importance of this distinction is that privileges can be removed for disciplinary purposes (for example, if an imprisoned person has committed a disciplinary breach, such as, a ssaulting someone"'), but the living conditions are designated to be 'entitlements'51 and therefore cannot be removed for disciplinary purposes. A unique feature of the Human Rights Act is that imprisoned people have a free-standing cause of action against corrective services (as a 'public authority') if they have acted inconsistently with their human rights 52 This provision was relied upon by Mr Eastman in an action concerning his 38 39 40 41 42 43

44 45 46 47 48 49 50 51 52

CMA 8 9(a). CMA 8 9(1). CMA 8 9(c). CMA 8 9(b) HRA 88 10 and 19. This section is to be rea d in conjullction with Chapter 6 of the Corrections Ma nagement Act which impose s concomitant requireme nts on the Director-General. CMA 88 12(d) and 43. CMA 88 12(e) and 45. CMA 88 12(g) and 49. CMA 88 12(h), 50 and 51. CMA 88 12(j), 53 and 54. CMA 88 12(k) and 55. 'Disciplinary breach' is defined in CMA s 152. CMA 8 154. HRA 8 40C.

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opportunity to work in the AMC (however, because it was an interlocutory application, a final decision was not made)." It is fair to conclude, therefore, that the ACT has the most comprehensive legislation protecting the human rights of imprisoned people of any Australian jurisdiction" It is more important, however, to consider how this legislation applies in practice. This question was considered by a review of the AMC conducted by Knowledge Consulting after one year of operation. The report made the following overall findings that are relevant to the human rights culture within the AMC: A strong basis has been set for a culture and a shared set of values at the A.M:C to deliver on commit m ents relating to the protection of detainees' Human Rights and the delivery of best practice rehabilitation programs. The AMC is unique in relation to other Australian prisons in the high level of attention paid to detainees' human rights. 60

The Knowledge Consulting report compared the AMC to other prisons in Australia. This arguably does not set the bar very high, given the documented conditions in prisons around the country that are inconsistent with human rights.'" Furthermore, the ACT Human Rights Commission has completed an inquiry into the treatment of women in the AMC. The report found that 'generally' 'women detainees at the AMC are treated humanely in custody, and that correctional staff and management are respectful ofthe particular needs and vulnerabilities of women'." The Commissioner went on to make 61 recommendations about ways to improve the treatment of, and services provided to, women in the AMC. 53

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Refshauge J held that Mr Eastman did not have a right to work in the AMC, although provision of an opportunity to work could arguab ly be required under s 19 of the Human Rights Act (the right to humane treatment when deprived of liberty). Refshauge J further held that Mr Eastman could not choose what type of work he did undertake if there is an opportunity to work - see Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010J ACTSC 4, [85]-[91] and [99]. The Corrections Act 1986 (Vic) has not been updated to incorporate rights of imprisoned people since th e Charter came into operation. However, s 47 of that Act does provide imprisoned people with some rights. These rights had not been successfully relied on in litigation until the decision in Castles v Secretary to the Department of Justice (2010) 28 VR 141 (discussed by Bronwyn Naylor, 'Human Rights a nd Respect in Prisons: The Prisoners' Perspective' (2014) 3 1 Law in Context 84, 105-106). As noted in the introduction to Part II, the Charter does not allow a direct right of action. Knowledge Consulting, Independent Review of Operations at the Ale.mnder Maconochie Centre: ACT Corrective Services (2011) 25. Including in Victoria, despite the Charter. See, for example, Ombudsman Tasmania, Risdon Prison Complex Tamar Unit and Behaviour Management Program Investigation Report June 2010 (2010); Victorian Ombudsman, Investigation into Deaths and Harms in Custody (2014); Ombudsman South Australia, Ombudsman Investigation into the Department of Correctional Services in Relation to the Restraining and Shackling of Prisoners in Hospitals (20 12). Australian Capital Territory Human Rights Commission, Human Rights Audit on the Conditions of Detention of Women at the Alexander Maconochie Centre: A Report by the ACT Human Rights and Discrimination Commissioner (2014) 5.

ESTABLISHTNG A HUMAN RIGHTS CULTURE IN THE NEW CANBERRA PRISON

B Specific Human Rights Requirements that Apply to Victoria Police The functions of police, in a broad sense, are to keep the peace a nd prevent the commission of criminal offences. 58 To facilitate these functions , police have a number of power s at both common law and under statute .'9 Examples of statutory powers include the power of search and seizure purs u ant to a warrant,60 and the powers to arrest61 and detain su spects. 62 Victoria Police, as a 'public authority' under s 4 of the Chart er, is

subject to the two-fold duty discussed in the introduction to this Part.63 This duty applies in relation to all the human rights outlined at the start of this Part. As Hopkins explained, this is additional to oth er police duties: The effect of this obligation will be to impose a new duty on police. Currently, police duties are to preserve the peace, prevent offences and discharge all legally imposed duties. The new duty will be to protect and promote human rights. 64

This is a requirement that permeates every action by every police officer . As Willia ms observed: Victoria Police, for example, will have day ·to-day responsibility for applying human rights in protecting the community from crime and safeguarding the rights of accused. They, like courts, will apply human rights in interpreting the laws that define their role and powers.65

This poses some practical dilemmas for police, because there a re numerous human rights that police duties may limit or override . Some examples include:'" arrest affects a person's right to liberty67 and freedom of movement;68 being questioned on the street results in a temporary loss of liberty and freedom of movement, and an invasion of privacy;'9 and searches by police involve a loss of security of the person and privacy, and may constitute degrading treatment." Human rights need to be balanced against the lawful exercise of police duties because human rights can be subject to limitations provided for in 58 59 60 61 62 63 64 65 66 67 68 69 70

Police Regulation Act 1958 (Vic) s 13 and Schedule 2. Police Regulation Act 1958 (Vic) s 11. Crimes Act 1958 (Vic) s 341. Crimes Act 1958 (Vic) 8S 458 and 459. Crimes Act 1958 (Vic) ss 464 and 464A. Charter s 38. Tamar Hopkins, 'Policing in an Era of Human Rights' (2007) 32(4) Alternative Law Journal 224, 225. George Williams, 'The Victorian Charter of Human Rights and Responsibilities: Origin and Scope' (2 006) 30 Melbourne University Law Review 880, 903-904. These examples are taken from Hopkins , above n 65, 224. Charter s 21. Charter s 12. Charter s 13. Charter 8 10.

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other legislation. However, it is also clear that police practices had to be modified to ensure compliance with the Charter.7! The important question, now that the Charter has been in operation for a few years, is what practical implications has the Charter had for police operations? Until 10 February 2013 the Director of the Office of Police Integrity (OPI) was responsible for ensuring that police comply with the Charter'" Reports from tbat office demonstrate the challenges involved in drawing any conclusions about human rights compliance in such a large, complex organisation. Two examples will illustrate. The first is the OPl review of police 'stop and search' powers in May 2012. The review was conducted in light of human rights concerns that ha d been raised by similar police powers in the United Kingdom (UK), including arbitrary use of the powers and targeting of particular groups. On these points specifically: ' [t]he OPI review found little evidence to sugge~ t that concerns have been realised relating to arbitrary use of powers or the targeting of particular groups'." This r eport provides some verification of police compliance with the Charter." The second was the OPI review of conditions in police cells in June 2010. This report found a great deal of inconsistency in the treatment of people detained in police cells around Victoria, and some matters that indicate lack of compliance with the Charter - for example , the abse nce of minimum custody standards," physical conditions in some police stations meaning people in custody have no access to the outdoors or to natural light76 and lack of staffing limiting the ability for detainees to have visitors and make phone calls. 77 However, the OPI found a willingness to improve practices once problems were identified." Following this report the OPI also produced a toolkit for assessing standards in police cells to assist in ensuring human rights compliance .'9 71

Some of the ways in which practice needed to change are outlined in Barton and Tait, above n 2.

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75 76 77 78 79

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Police Integrity Act 2008 (Vic) s 8(I)(d). From 10 February 2013 the functions of the Office of Police Integrity were transferred to the Independent Broad-based Anti-corruption Commission. Victorian Office of Police Integrity, Re view of Vi ctoria Police use of 'Stop and Search' Powers (2012) 6. Although this finding is con tradicted by a reported admission by Victoria Police that racial profiling was used in the context of a se ttlement reached in a discrimination claim brought by a group of African-Australians - Peggy Giakoumelos, 'Victoria Police Has Settled a Civil Case Over Allege d Racial Profiling of AfricanAustralian Men' SBS (National), 19 February 2013. Victoria Police conducted a review following the settlement considering how they will combat racis m - Jeff Waters, 'Victorian Police Commissioner Ken Lay Acknowledges Police Guilty of Racial Profiling' ABC News (National), 31 December 2013. Victorian Office of Police Integrity, Update on Conditions in Vi ctorian Police Cells (2010) 22-23. Ibid, 23. Ibid. Ibid, 27. Victorian Office of Police Integrity, Policing and Human Rights. Standards for Police Cells (2008).

ESTABUSHING A HUMAN RIGHTS CULTURE IN THE NEW CANBERRA PRISON

C Summarising Remarks on the Legislative Framework This Part has outlined the specific rights relevant to the AMC and Victoria Police. It has been shown that despite positive developments since the enactment of the Human Rights Act and the Charter, there is still evidently cause for concern about the protection of human rights of people who come into contact with Victoria Police and the people imprisoned in the AMC . Despite the fact that the interview data discussed in Parts IV and V is predominantly positive, this should not lead to complacency. There is still work to be done to improve human rights compliance in these two organisations.

III

DEFINING CULTURE

ACT and Victorian human rights legislation imposes duties on police and publicly operated prisons as 'public authorities'. It is the way the legislation changes practice in organisations to achieve compliance that is of interest for the purposes of this article. One of the ways human rights legislation is operationalised is by striving towards a 'culture' that is respectful of human rights. This means an environment where human rights legislation is complied with in all interactions between people within the organisation, and in interactions employees have with people outside the organisation. This Pa.rt of the article defines a 'human rights culture', and then discusses elements of prison and police cultures which may pose challenges for operationalising human rights legislation in these particular organisational environments. The way the AMC and Victoria Police have dealt with these challenges is then discussed in Parts IV and V. It should be emphasised at the outset that the discussion in this Part is based on literature that describes prison and police culture in general, and in many cases this literature is from jurisdictions other than Australia. It should therefore not be assumed that all elements mentioned are necessarily present in the AMC and Victoria Police.

A Human Rights Culture There was some discussion about creating a human rights culture when human rights legislation was being considered in the ACT and Victoria. The Chair of the Victorian Human Rights Consultation Committee noted that in public submissions during consultations 'Victorians sought not just a new law, but something that could help build a society in which government, Parliam ent, the courts and the people themselves have an understanding of, and respect for, basic rights and responsibilities' ." The ACT Consultative Committee also wrote about the importance of cultural change as an objective of the Human Rights Act:

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Williams, above n 65, 892. 271


While a bill of rights has legal significance, its primary purpose should be to encourage the development of a human rights-respecting culture in ACT public life and in the community generally,S'

In the five year review of the operation of the Human Rights Act it was noted that the concept of a 'human rights culture' is used frequently, but seldom defined. The review team therefore proposed the following definition: A pattern of assumptions shared by government officers, and taught to new officers; that human rights must he considered and respected in carrying out all government functions and in developing new law and policy.82

The conclusion reached following the review was that a 'fledgling human rights culture' was present in the ACT, but there was still substantial room for improvement." This is quite likely to be because legislation alone is not sufficient to change culture. As Graeme Innes (Former Disability Discrimination Commissioner) put it: a Human Rights Act will not, alone , magically create a rights-aware, and rights -respecting, cul ture ... We'll also need a strong and ongoing national program of human rights education. B4

Australia cannot be described as having such a 'strong' human rights education program at present (although there are plans afoot as part of the national school curriculum)'" In addition to the lack of education about human rights that would help to achieve a human rights culture, part of the problem is that there is no definition of a 'human rights culture' that applies outside the public service. The definition proposed by the review team (above) relates to public servant s who are bound by the duty to consider human rights in decision making as 'public authori· ties' under the Human Rights Act and Charter. This definition cannot be easily transferred to other organisations. In particular, it is of limited usefulness for understanding what a human rights culture means for prisons and police. To understand the culture in these environments it is useful to begin with a broader conception of 'organisational culture'. A widely accepted definition of'organisational culture' is that provided by Schein, as follows: The culture of a group can now be defined as a pattern of shared basic assumptions learned by a group as it solved its problems of external aclaption and internal integration, which has worked well enough to be 81 82

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ACT Consultative Committee, Towards an ACT Human Rights Act (2003), 4l. ACT Human Rights Act Research Project, The Human Rights Act 2004 (ACT): The First Five Years of Operation. A R eport to the ACT Department of Justice and Community Safety (2009) 67. Ibid, 7 _The review of the Charter did not make any specific findings about a human rights culture in Victoria - see Scrutiny of Acts and Regulations Committee, Review of the Charter of Human Rights and Responsibilities Act 2006 (2011). Cited by Paula Gerbe r and Annie Pettitt. 'Human Rights Education in the Australian Curriculum' in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Hu man Rights Law in Australia (Lawbook Co, 2013) 531. Ibid.


considered valid and, therefore, to be taught to new me~bers as the correct way to perce ive, think, and feel in relation to those problems. 86

The core of this definition is how people are taught to interact and behave. As human rights la w aims to regulate behaviour (for example, by r equiring that people are treated humanely), any attempt to operationalise these laws will need to grapple with how they impact human interaction and behaviour in the particular organisation. Prisons and police have certain features that are very different to the types of organisations Schein is writing about - that is, large corporate offices' 7 These differences will be discussed next. This general background about the organisational cultures in prisons and police is useful for understanding the types of changes that need to be made to interpose a human rights culture, so that the organisations comply with the legislative requirements outlined in Part II.

B Characteristics of Prison and Police Culture The purpose of this section is to highlight some of the general elements of prison and police cultUl-e that pose challenges to the creation of a human rights culture . This section begins by considering some elements common to both prison a nd police culture, before considering some specific a spects of each . 1

Common Elements

The police and prison officers are largely dealing with the same segment of the population, which is a segment that displays multiple vulnerabilities. This is not a matter that was discussed during the interviews about achieving a huma n rights culture in the AMC or Victoria Police, but it is important t o provide this background to demonstrate the importance of human rights protections for this segment of the popula tion. Beginning with police, because they are the 'front end' of the criminal jus tice system, it is increasingly recognised that much of police work involves dealing with vulnerable people. This is reflected in the title of a recent Australian text: Policing Vulnerability_" This vulnerability includes: people wit h mental illness, who are involved in up to 30 per cent of police call outs in some jurisdictions_" One Victorian study of people in police custody found that 25 per cent had previously been admitted

86 87 88 89

Schein, above n 6, 18. Although he does give one case study of the United States Army Corp, ibid, 334. Isabelle Bartkowiak-Theron and Nicole Asquith, Policing Vulnerabilities (Federation Press, 2012). Victoria Herrington and Katrina Clifford, 'Policing Mental Illness: Examining the Police Role in Addressing Mental III He alth' in Bartkowiak-Theron a nd Asquith, ibid, 121. 273


to a psychiatric hospital and 75 per cent fulfilled the criteria for a 'diagnosable mental disorder';90 Indigenous people, who are '22 times more likely to be arrested or detained by police than non-Indigenous people';" people from certain ethnic group s who may be 'over-policed';" young people (particularly 15-19 year olds), who have the most contact with police out of a ny group in the population;" and people who are accused of crimes are statistically likely to have been victims of crimes themselves. 94 Statistics about the adult pr ison population paint a similar picture: There are high rates of mental illness amongst the prison population compared to the general population (the precise rates vary depending on the definition of mental illness used a nd the time at which it is measured, but estimates range from 30 per cent of the prison population being diagnosed with a mental illness 95 to 80 per cent having a psychiatric illness over a 12 month period""). Twenty per cent of the prison population has an intellectual disability.97 Depending on the definition used, as many as 80 per cent of people in prison have a history of brain tr auma '"' Indigenous people are 15 times more likely to be imprisoned than non-Indigenous people" and in the 10 year s between 1992 a nd 2009, the Indigenous prison population rose by 79 per cent.100

See Gennady Baks heev, Stuart Thomas and J ames Ogloff, 'Psychiatric Disorders and Unmet Needs in Australian Police Cells' (2010) 44(11) Australian and New Zealand Journal of Psychiatry 1043 . 91 Lorana Barte ls, 'Twenty Yea rs On: Indige nous Deaths in Police Custody and Lessons From the Frontline' in Ba rtkowiak·The ron and Asquith, above n 88, 181. 92 See, for example, Hopkins' discu ssion of comp laints by youn g people from Somalia, Sudan and Afghanis tan to the Flemington and Kensingto n Community Legal Centre: Hopkins, above n 64. 93 Kristina Murphy and Alana Gaylor, 'Policing Youth: Can Procedural Justice Nurture Youth Cooperation With Police?' (Alfred Deakin Resea rch Institute Working Paper No 6, 2010) 6. 94 See Derek Deadm an and Ziggy MacDonald, 'Offenders as Victims of Crime?: An Investigation into the Relationship Betwee n Criminal Behaviour and Victimization' (2004) 167 Journal of the Royal Statistical Society 53 . 95 Herrington and Clifford, above n 89, 117. 96 Tony Butler, Gavin Andre ws, Stephen Allnutt, Chika Sakashita, Nadine Smith and John Basson, 'Mental Disorders in Australian Prisoners: a Comparison with a Community Sample' (2006) 40 Australian and New Zealand Journal o{ Psychiatry 272. 97 Terese Henning, 'Vulnerable Suspec ts and Arrest and Investigative Processes' in Bartkowiak-Theron and Asquith, above n 88, 218. 98 James Huntley, 'Acquired Brain Injury and Vulnerability to the Criminal Justice System' in Herrington and Clifford, above n 89, 173. 99 Australian Bureau of Statistics, Prisoners in Australia, 2013 (13 June 2014). 100 Austra lian Institute of Criminology, Australian Crime: Facts and Figures 2010 90

(20 11) 114.

274


The number of women in Australian prisons is increasing rapidly!O! and women display high rates ofvictimisation lO2 and mental illness. lOS The characteristics of the population who come into contact with police most regularly, and make up the bulk ofthe prison population, make them particularly susceptible to risk. As Henning observes '[pJolice owe a higher duty of care to vulnerable people because their particular characteristics place them at greater risk than other people during the arrest process and in custodial situations'U)4 Examples of risks include tbat they may not fully comprehend what they are being accused of, or the processes they are being subjected to; they may be at risk of self-barm, or find contact witb police and the prison system more traumatising than other more resilient members of the community. Human rights law requires all people to be accorded equal protection by the law, and this may mean special provision needs to be made to cater for these vulnerabilities. This is a matter tbat came to prominence when the Royal Commission into Aboriginal Deaths in Custody was conducted. 105 In the context of prisons and police custody, an oversimplified summary of strategies includes: screening to establish tbe health (both physical and mental) status of the individual, if t hey are displaying signs of substance addiction and if they are at risk of self-harm; 106 providing additional medical treatment by trained health professionals (especially for mental illness); 107 additional monitoring if the person is at risk of self-harm or suicide.108 101

The Australian Bureau of Statistics reported that betwee n 2001 and 2011 the number of females imprisoned increased by 35 per cent while the number of males imprisoned increased 29 per ce nt - Australian Bureau of Statistics, Prisoners in Australia 2011(2012 ) 9. It should be noted that this incre ase is more pronounced in some jurisdictions than others. For example, the Northern Territory ra te rose from 61.7 per 100,000 in 2009 to 111.4 in September 2012. In contrast, t he ACT rate remained more stable , changing from 10.6 to 11.8 during the same period - Australian Bureau of Statistics , Correctiue Serv ices Australia (2012) 15.

102

103

104 105 106 107 108

87 per cent of females imprisoned in Victoria have been victims of sexual, physical or emotional abuse - Holly Johnson, 'Drugs and Crime: A Study of Incarcerated Female Offenders' (Au stralian Institute of Criminology Research and Public Policy Series No 63, 2004) xiv. For example , a study of females in South Australian prisons , which had an 81 per cent participation rate, found that all respondents had a psychiatric disor~ der - Claire O'Connor, 'Victims or Offenders? Mental Health Issues in Women's Prisons' (2007) 81 Precedent 26, 27. Henning, above n 97, 217. Royal Commission into Aboriginal Deaths in Custody, Na tiona l Report (1991). Her Majesty's Inspectorate of Prisons, The Mental Health of Prisoners. A Thematic Review of the Care and Support of Prisoners with Mental Health Needs (2007) 29. J ames Ogloff, 'Identifying and Accommodating the Needs of Mentally III People in Gaols and Prisons' (2002) 9(1) Psychiatry, Psychology and Law I , 9. Maurizio Pompili, David Lester, Marco Innamorati, Antonio Del Casale, Paolo Girardi, Stefano Ferracuti, Roberto Tatarelli, 'Preventing Suicide in Jails and Prisons: Suggestions From Experience with Psychiatric Inp atie nts' (2009) 54(5) Journal of Forensic Sciences 1155.

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In the context of police investigation and questioning strategies may also include: spending more time explaining processes in basic language;lU9 reducing the length of interviews and having frequent breaks; llo and encouraging people to have legal representation or a support person present during police questioningyl There are no doubt resource considerations relevant to the introduction of the types of protections discussed above, especially in the current environment where prisons and police cells are becoming increasingly overcrowded. 112 However, it is essential for the human rights of vulnerable people to be protected when they come into contact with police officers and are incarcerated; and vulnerable people are, as the statistics demonstrate, the norm rather than the exception. Therefore the creation of a human rights culture in prisons and police organisations requires the incorporation of such protections. 2

Prison Culture

There are at least three aspects of prison culture that pose challenges for human rights implementation. The first is that prisons are 'total institutions', the second related feature is the strictly controlled routine in prisons, and the third is the closed nature of prisons 1l3 These will be discussed in turn. First, prisons operate 24 hours a day seven days per week, and the people held in them do not leave. This may sound like a trite observation, but it is important to recognise that it creates what Goffman termed a Suggested by Huntley in relation to people with acquired brain injury: Huntley, above n 98, 175. 110 Suggested by Roberts and Herrington in relation to suspects with psychological vulnerability: Karl Roberts and Victoria Herrington, 'Detention and Investigation of Vulnerable Suspects' in Bartkowiak-Theron and Asquith, above n 88, 207. See also Victoria Herrington and Karl Roberts, 'Addressing Psychological Vulnerability in the Police Suspect Interview' (2012) 6(2) Policing 177. 111 A support person is suggested by Huntley in relation to people with acquired brain injury: Huntley, above n 98, 175. An example of such a program is the Indep endent Third Persons service provided by the Victorian Office ofthe Public Advocate. 112 For example, in the Victorian context see Victorian Government, Prison Capacity Planning (2012) and Ombudsman Victoria and the Office of Police Integrity, Conditions for Persons in Custody. Report of Ombudsman Victoria and Office of Police Integrity (2006). In relation to the AMC see Christopher Knaus, 'Overcrowding at Prison "No Surprise"', Canberra Times (Canberra), 10 October 2013. 113 These factors are more relevant to the prison as an institution than to the culture amongst prison employees. This is because, in contrast to police officers, the culture amongst prison officers has been under-researched to date - Alison Liebling, David Price and Guy Shefer, The Prison Officer (2nd ed, Taylor and Francis , 2010) 154; Elaine Crawley and Peter Crawley, 'Understanding Prison Officers: Culture, Cohesion and Conflicts' in Jamie Bennett, Ben Crewe and Azrini Wahidin (eds), Understanding Prison Staff (Willan Publishing, 2008) 135. 109

276


'total institution'Il4 In a 'total institution' the institutional culture is not mer ely one aspect of people's life in the wayan office worker's work culture is simply one aspect of their life. Rather, the institutional culture regulates their entire existence. As Brooks has observed: Unlike most institutional cultures, the majority of the members of a prison culture spe nd all of their time within the culture. Prisons are considered 'tota l institutions' because they encompass the entire lives of the majority of their inhabitants. llfi

The second, a nd closely related point, is that custodians have a great deal of power over those who are detained. They have control over all the fundamental aspects of imprisoned people's lives, such as when and what they eat, when they can shower, in instances where there is no in-cell sanitation they decide when the detainee can use the toilet," 6 how often they change their clothes, when they can go outside and when they can access medical treatment. In addition to these fundamental aspects of life, there are other matters relevant to the human rights of the detainees in 'total institutions', such as, their ability to contact family members, friends, lawyers and organisations to make complaints (for example, Ombudsmen).' l7 This is a challenge for operationalising human rights because the strictly controlled environment of a prison may compromise various rights of imprisoned people, whereas at common law people do not lose any rights other tha n t hose unavoidably lost by virtue of their imprisonment (the 'residuum principle')ll8 There is a range of international court decisions that demonstrate how this is a challenge due to aspects of prison operation. " 9 For example, in the case of Edwards u United Kingdom Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (A nchor Books, 1961). 115 Justin Brooks, 'How Can We Sleep While the Beds arc Burning? The Tumultuous Prison Culture of Attica Flourishes in American Prisons Twenty-five Years Later' (1996) 47 Syracuse Law Review 159, 164. 116 There are prisons in developed countries that do not have in -ce ll sanitation, including Finland (see European Committee for the Prevention of Torture and Inhuma n or Degrading Treatme nt or Punis hment, Report to the Finnish Gouernment on the visit to Finland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 20 to 30 April 2008 (2009) [61) and [90)) a nd the UK (see National Council for Independent Monitoring Boards, 'Slopping out?' A Report on the Lack of in-cell Sanitation in Her Majesty's Prisons in England and Wales (2010». 117 For example, in the United Nations Hum an Rights Committee Views: Communication No 118/2003 , UN Doc CCPRlC/86/D/ 1184/2003 (17 March 2006) (Brough u Australia), Mr Brough was kept in solitary confinement for an exte nded period without the opportunity to communicate with people outside the prison. 118 Bronwyn Naylor, 'Protecting the Human Rights of Prisoners in Australia' in Paula Gerber an d Melissa Castan (eds) , Contemporary Perspectives on Human R ights Law in Australia (Lawbook Co, 2013) 396. This is consistent with Principle 5 of the United Nations Basic Principles for the Treatment of Prisoners (1990). 119 See, for examp le, the discuss ion in Andrew Coyle, 'The 'heatment of Prisoners: Internatio nal Standards and Case Law' (2008) 13 Legal and Criminological 114

Psychology 219. 277


the European Court of Human Rights considered the human rights infringed by a situation where an imprisoned person had been killed by his schizophrenic cell mate, who should not have been sharing a cell in the first place. I'. This example demonstrates that treatment that may be 'routine' poses a risk wher e people have the types of vulnerabilities that are common in the prison population. There are also Australian examples of this challenge. One is the complaint brought to the United Nations Human Rights Committee (the UN Committee) by Mr Brough,121 who as a 16-year-old Aboriginal male with a mild mental disability was transferred to an adult correctional facility where he was kept in a padded isolation cell. The UN Committee was of the view that his treatment violated art 10(1) and (3) of the ICCPR.I22 The UN Committee made the following comments: In the circumstances, the author's extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an

Aboriginal.l~ ~

Another is an ACT case involving the admissibility in court of a letter that had been seized from the accused's cell in the AMC. The accused sought to rely on his right to privacy under s 12 of the Human Rights Act (which provides a right 'not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily'). The ACT Supreme Court held that his right to privacy had not been breached and the search was conducted in accordance with the search and seizure provisions contained in the Corrections Management Act l24 which were held to be: targeted at inmates by virtue of their statuses as detainees or prisoners. As such, the search of the envelope found in the accused's cell, and the seizure of the letter found within the enveloped (sic), was not an arbitrary interference with any right enjoyed by the accused. '2fj

These cases demonstrate that there are a number of relevant considera tions in addition to the human rights of imprisoned people. These include the rights of fellow imprisoned people, the safety of everyone in the prison environment (including staff) and the need to maintain security. Third, the power custodians hold over imprisoned people is compounded by the fact that they are shut off from the rest of the world. If they are 120 Edwards u United Kingdom (46477/99). 121 Brough u Australia, UN Doc CCPRlC/861D11184/2003. 122 The requirement for treatment with humanity and respect for human dignity, and the requireme nt for rehabilitation. 123 Brough u Australia, UN Doc CCPRlC/861D11184/2003, 9.4. The Australian government response to this decision was that they did not accept that there had been a violation of arts 10 and 24(1) of the ICCPR in this case. See Response of the Australian Gouernment to the Views of the Committee in Communication No 1184 12003 Brough uAustralia. 124 Sections 122 and 128. 125 R u Gringle [201 3] ACTSC 34, [12]. 278

ESTABLISHING A HUMAN RIGHTS CULTURE IN THE NEW CANB ERRA PRISON

mis treated by those in a position of powe r, t hey may find it difficult to access an impartial person to seek assistance from , or complain to. As Fa thi h as observed, 'the closed nature of the prison environment and the fact that prisons house politically powerless, unpopular people - creates a significant risk of mistrea tment and abuse' I" This is very different to people working in an office who are not confined 24 hours seven days per week, a nd indeed have a degree of choice as to whether they continue to work in a n organisation if they decide they do not like the culture. The fa ct that prisons ar e closed off from t he outside community is a ch a llen ge for the huma n rights law principle that there should be accountability and monitoring of places of detention to ensure human rights compliance. 127 OPCAT establishes a dual level monitoring r egime. However, even in the absence of ratification of OPCAT, existing mechanism s pr ovide for imprisoned people to ma ke complaints to organisations such as the Ombudsman , Official Visitor or huma n right s commission in their jurisdiction. '28 They also provide for inspections or systemic r eview to be carried out by such bodies to ascertain whether human r ights ar e being violated, but the question is whether these happen in practice. F or example, the ACT Huma n Rights Commission h as not been provided with the r esources to conduct a human rights focused audit of the AMC since it opened in 2009'29 The way that a human rights culture may counter the three elements discussed in this sect ion (pris ons a s 'tota l institutions', the strictly controlled routine in prisons a nd the closed nature of prisons) are discussed in P ar ts IV and V.

126 David Fathi, 'The Challenge of Prison Oversight' (2011 ) 47 American Criminal Law Review 1453, 1453. 127 Agnieszka Martynowicz, 'Oversigh t of Prison Conditions and Investigations of Deaths in Custody: International Human Rights Standards and the Practice in Irela nd' (2011) 91(1) Prison Journa l 81 , 85·86. The importance of external monitoring to human rights compliance in closed environments is discussed in more detail by Owers (see 211) and Pierce (see 156) in this issue. 128 Naylor, above n 118, 412. Western Australia also has the Office of the Inspector of Custodial Services and Ne w South Wales has rece ntly appointed an Inspector of Custodial Services under the Inspector of Custodial Services Act 201 2 (NSW) - Greg S mith Attorney Ge nera l and l\1inister for Justice, 'Inspector of Custodial Services Appointed' (Media Release, 18 September 201 3). 129 ACT Human Rights Commission, A nnual Report 2011 112 (2012) 13. There was a ge neral review of operations in the Al\tIC carried out by Knowledge Consulting in 2011 which touched on some human rights issues (see Knowledge Consulting, above n 55), but the type of audit the Human Rights Commission would carry out is like ly to be similar to the comp re hensive audit of youth dete ntion - Alasdair Roy and Helen Watchirs, The ACT Youth Justice System 2011: A Report to the ACT Legislative Assembly by the ACT Human Rights Commission (201 1). The Commission is, however, involved in monthly Oversight Committee meetings with ACT Corrective Services, outlined in Part VB. 279


3

Police Culture

There is a considerable body of literature about police culture,!"" including debates about the usefulness of an understanding of this culture for explaining police actions.!'! It is not the intention of this article to enter into these debates. The purpose of the discussion in this section is to provide some theor etical background to the challenges faced by Victoria Police in shifting the organisational culture towards a human rights culture. Therefore, for the present pUl'pOSe, the following three characteristics of police culture should be highlighted: (1) police organisations are generally hierarchical in a way that requires deference by subordinates to senior officers; (2) they are generally role-based,!32 and (3) there are entrenched practices, entailing both a tendency fo r officers to distance themselves from citizens, and to be somewhat resistant to change.!33 The result of the combination of these elements is that police officers may see any harm that is caused to members of the public as 'part of the job' or as an unavoidable consequence of 'just following orders'I34 The role-based nature of police culture and the hierarchical organisational structure will be discussed together. In a role-based hierarchical organisation, an individual does not make decisions purely based on their own assessment of the costs and benefits of the outcomes of that decision. They will be acting in accordance with their understanding that obedience to superiors is compulsory at all times, and that any harmful outcomes of the decision can be justified as a necessary part of their role (instead of being a result of their own decision). 13' As Brown has observed, '[a] patrolman is not free to act solely on the basis of his personal beliefs ... they are ... enmeshed in a system of hierarchical controls and work -group pressures', 136 This type of behaviour potentially counter acts a human rights culture because it means that action that is not respectful of the human rights of community members may be seen as required hy the job, unavoidable; or justified because the officer was following orders, as opposed to being free to make their own decision about how to respond. This type of thinking may justify a range of rights infringing action, including unjustified use 130

131

132 133 134 135 136

280

See, for example, Tom Cockcroft, Police Culture (Routledge, 2013); Bethan Loftus , Police Culture in a Changing World (Oxford University Press, 2009); Janet Chao, Changing Police Culture: Policing in a Multicultural Society (Cambridge University Press, 1997). See , for example , Waddington, who believes such a link should not be made Peter Waddington, 'Police (Canteen) Sub-culture. An Appreciation' (1999) 39(2) British Journal of CrimilWlogy 287. Barbara Armacost, 'Organizational Culture and Police Misconduct' (2004) 72 George Washington Law Review 453, 509. Ralph Crens haw, Stuart Cullen and Tom Williamson, Human Rights and Policing (Martinus Nijhoff Publishers, 2nd ed, 2007) 38G. Armacos t, above n 132, 509. Ibid. Michael Brown, Working the Street: Police Discretion and the Dilemmas of Reform (Russell Sage Foundation, 1981), cited by ibid, 510.


afforce, coercive arrest techniques or unlawful invasion of privacy during police investigations. The other element of police culture that poses challenges for operationalising human rights is the tendency to follow entrenched practices, and a reluctance to change that stems from this. One traditional characteristic of police culture is intense loyalty to other officers, and a social division being created between officers ('us') versus citizens ('them').l3' This largely arises because of the dual features of ,danger' and 'authority' that Skolnick identified in defining police 'working personality'. 138 That is, police are invested with authority that has to be used to resolve 'the unpredictable outcome of encounters with other people',I39 however dangerous. I' o This can lead to a view that all citizens are dangerous, and only fellow officers can be trusted. I' 1 Terrill et aI's study of police officers showed that officers who adhered to this traditional view were more likely to use coercion towards citizens. However, the study also found that many officers did not adhere to these traditional views, 142 which demonstrates the risks that can be involved in making generalisations about the influence of police culture on the behaviour of individual police officers. l43

C Summarising Remarks on Defining Culture This Part has outlined some of the challenges that certain characteristics of police and prison culture pose to creating a human rights culture. These (among others) are the ch allenges managers may have to face in implementing human rights legislation amongst police and in prisons. The way they have been dealt with in the two specific settings - the AMC and Victoria Police - are considered in the next two Parts of the article . These case examples provide evidence that the challenges may be overcome.

IV

ACHIEVING A HUMAN RIGHTS CULTURE: COMMON ELEMENTS

The discussion will now shift from prisons and police in general to the specific case examples of the AMC and Victoria Police. This P art considers the common elements required for achieving a culture change that emerge from these examples. These are the importance of leadership, and ensuring staff act in a manner consistent with human rights (for example, by 137 William Terrill, Eugene Paoline III and Peter Manning, 'Police Culture and Coercion' (2003) 41 (4) Criminology 1003, 1006. See also Jem Stevens, 'Changing Cultures in Closed Environme nts: What Works?' (2014) 31 Law in Context 228, 240. 138 Jerome Skolnick, Justice Without Trial: Law Enforcement in a Democratic Society (John Wiley and Sons , 1966). 139 Reiner cited by Liebling, Price and Shefer, above n 113, 157. 140 Ibid. 141 Terrill et aI, above n 137, 1006. 142 Ibid, 1003. 143 Ibid, 1029. 281


providing appropriate education and training). Following a discu ssion of the common elements to the approach taken by both organisations, some observations will be made a bout what each may be able to learn from the other. The material in this Part, and P art V, was predominantly gained via interviews with the current Executive Director of ACT Corrective Services, Ms Bernadette Mitcherson ,.. and the then Manager of the Human Rights, Mental Health and Disability Unit in Victoria Police, Ms Mmaskepe Sejoe . '"

A Leadership The importance of leadership has been stressed for a ny type of organisation to change its culture; therefore it is not surprising that leadership is vital for achieving a human rights culture within the AMC and Victoria Police. In the prison context this requires going beyond leaders making statements a bout the importance of human rights. Rather, t heir active involvement is required. As Coyle from the International Centre for Prison Studies writes: '[t]he prisons with the most humane atmosphere, with the most positive culture, are likely to be those with the most visible leadership'. " 6 In the ACT context, this leadership comes from the Executive Director , a nd the General Manager Custodial Operations. The Executive Director of ACT Corrective Services is only responsible for one pr ison, which is in the same city as her office, a nd sh e is therefore able to spend time at the prison on a regular basis. This enables her to communicate her expectations to staff about human rights and r esponsibilities. Clearly communicated expectations are important because if staff understand what is expected of them, they are more likely to meet these expectations. As Coyle has noted: '[t]he best managed prison systems are likely to be those which have a clear understanding of their objectives, mission and values ... Crucial to all of this is a good communication system, which goes up and down a nd across the organisation'. '" As mentioned in Part II, the Charter requires police, as a public a uthority, to act in a ma nner that is compatible with human rights and consider human rights in decision making. "s Management were therefor e legally required to ens ure that all police officers acted consistently with this requirement. Victoria Police senior management showed a commitment to change from the introduction ofthe Charter. For example, Victoria Police's Assistant Commissioner , Luke Cornelius, publicly expressed commitment 144 The interview was conducted on 30 October 201 2. 145 The interview was conducted on 21 November 2012. 146 Andrew Coyle, Managing Prisons in a Time of Change (International Ce ntre for Prison Studies, 2002), 72. 147 Andrew Coyle, 'Change Management in Prisons' in Bennett, Crewe and Wahidin, above n 113, 243-244. 148 Charter 83 8.

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to safeguarding human rights and the Charter upon the launch of the Charter l " The Chief Commissioner also participated in the Victorian Human Rights Leadership Forum , which was an intergovernmental committee providing leadership and coordination for implementation of the Charter by public authorities. When an initial education program was conducted within the organisation to raise awareness of the Charter requirements, staff at all levels were involved l 50 They all attended in plain clothes, so that rank became less visible and open discussion was encouraged during the sessions. This was one way of sending the message that staff at all levels of the organisation are responsible for acting in a way that respects human rights. This approach helped to overcome the hierarchical nature of the organisation. Victoria Police also organised an international conference on human righ ts and policing in December 2008 which allowed information s haring between Victorian leaders and leaders from other countries with more experience with human rights legislation. 151 Similarly to prisons, this kind of active involvement of senior officers is crucial to achieving cultural change. As Armacost writes 'organizational change - the kind that is necessary to alter entrenched patterns of thinking and conduct - will require top-down pressure , including strong police leadership at the highest level'152

B Ensuring Staff Act Consistently with

Human Rights Obligations 1

Alexander Maconochie Centre

The extent to which the AMC is a 'total institution', with routines that limit via legislation human rights that people otherwise enjoy in the comm unity, relies very much on the staff. That is, staff who are conscious of people's human rights have the power to ensure that those rights are respected. As Coyle has observed: '[o]n a day to day basis what makes prison life either tolerable or unbearable for prisoners is their relationship with staff. Any attempt to change the culture of a prison or of a prison system has to recognise this fact'. 153 From its inception there was an intention to create a human rights culture in the AMC. This was reflected in a speech made by the former Executive Director of Corrective Services in October 2010 when he said: I have often spoken to our officers about culture. I have reminded them that what we have set in place and are now consolidating will endure. 149

Luke Cornelius, 'Remarks at the Launch of the Victorian Charter' as cited in Victoria Police, National Human Rights Consultation Victoria Police Submission (2009) 6. ]50 During the 2007·2008 financial year over 700 employees attended seminars and they continued during 2008 - Victoria Police, Annual Report 2007- 08 (2008) 46. 151 Ibid. 152 Armacost, above n 132, 52l. 153 Coyle, above n 146, 76.

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Indeed it will be difficult to change and therefore brings with it considerable responsibility to get it right at the out:;;et. 154

When establishing a new organisation it is important to r ecruit people who are sympathetic to the goals ofthe organisation and to support them when they commence in their roles. As Leggett emphasises, '[t]he culture can be managed by effective recruitment strategies to ensure that the right staff are selected'.'ss In the case of the AMC, this means recruiting staff who are committed to the welfare of the imprisoned people , consistent with the goal of the AMC to rehabilitate people while they are imprisoned. 156 The AMC had three different categories of prison officers when it opened: staff who transferred from the Belconnen Remand Centre, which had a very different operating environment that had been found by the ACT Human Rights Commission to be inconsistent with human rights;157 2. staff who had worked in prisons in other jurisdictions, such as New South Wales, which does not have human rights legislation; and 3. new staff who had not worked in places of detention before. 1.

The majority of staff fell into the third category. The Knowledge Consulting report noted that 'this was a deliberate soundly based decision to facilitate having staff attitudes conducive to the new rehabilitative culture being sought rather than a "guarding" culture'. lOS Support and training is provided to staff tha t includes a human rights component. Bailey notes that this training occurred 'well ahead' of the AMC opening 'in order to put its human rights-respecting orientation into effect from the start' .'59 Staff are also required to complete a Certificate III in Correctional Practice during their first 12 months of employment at the AMC. This involves approximately 360 hours of training, comprising 10 core units (such as, 'communicate effectively', 'maintain security' and 'conduct searches') and six elective units from a possible 23 (examples include 'manage conflict through negotiation', 'work effectively with diversity' and 'respond to offenders influenced by drugs or alcohol') .I6