By Ned Zvekic
On 25 July, the ABC’s Four Corners programme revealed the use of mechanical restraints on prisoners in Northern Territory youth detention centres. These restraints, such as the restraint chair pictured, have been considered by the youth detention centres to be ‘reasonable’ to maintain the ‘discipline’ of prisoners. However, recent communications to the United Nations Human Rights Council have argued that subjecting prisoners with disabilities to these forms of mechanical restraints amounts to serious violations of fundamental human rights, including the right to be free from cruel, inhuman, or degrading treatment. Australia’s international agreements oblige the Federal Government to ensure such rights to the Australian people, pulling state and territory law into order if need be. The Northern Territory legislation which provides for the restraints should therefore be changed to ensure prisoners with intellectual disabilities of their human rights, and to conform territory law with Australia’s international obligations.
The legislation provides currently that prisoners can be subjected to ‘approved restraints’ to ‘maintain discipline’ if they threaten the ‘good order’ of the prison. For example, a prisoner who threatens violence on another person within the prison could be put in a restraint chair, which has been approved by the Commissioner of Correctional Services. The theory behind the use of restraint chairs is that a prisoner who is physically unable to move will have time to reflect on their behaviour and correct themself, ‘de-escalating’ the situation.
However, in the case of Mr M., an Indigenous man with a complex variety of intellectual disabilities which make it extremely difficult for him to control his behaviour or process emotion, being subjected to the restraint chair is punitive, rather than correctional. Unlike an able prisoner, Mr M.’s inability to process emotion renders him unable to learn good behaviour on his own, and as such, the disciplinary objective of the restraint chair procedure cannot be met.
If restraint chairs cannot serve the purpose of ‘de-escalating’ dangerous behaviour in relation to prisoners such as Mr M., then they should not be used. The United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has said that the use of mechanical restraints in such circumstances may constitute cruel, inhuman and degrading treatment in violation of international human rights law.
The Federal Government is obliged by international agreements to ensure that its citizens do not suffer such violations. Therefore, the Federal Government should ensure that the Northern Territory Government uses alternatives to restraint chairs, if the use of the restraints constitutes cruel, inhuman, or degrading treatment. One alternative would be to ensure that properly trained mental health care workers are available as required at correctional facilities. Such staff could deliver the individual instruction that prisoners with intellectual disabilities require in order to learn how to manage their behaviour, effectively managing breaches of ‘good order’.
The use of restraint chairs on prisoners with intellectual disabilities should be discontinued immediately. Although, the use of such devices may seem to be a reasonable response to a dangerous situation, international human rights law suggests that the use of restraint chairs in such situations is cruel and ineffective. If the use of restraint chairs does violate international human rights law, then the Northern Territory Government should seek alternative means of managing the behaviour of prisoners with intellectual disabilities. The Northern Territory legislation should be changed to accommodate these alternatives, if Australia is to have a humane criminal justice system.
Ned Zvekic is studying a Bachelor of Laws at La Trobe University and is currently undertaking placement at Australian Lawyers for Human Rights.