United Nations Human Rights Committee Communication on Behalf
of Corey Brough v Australia: Case Facts and Summary of Findings
(Communication No. 1184/2003: Australia. 27/04/2006)
Corey Brough, a young 16-year-old Aboriginal man with a mild intellectual disability, was transferred from a youth detention centre to an adult correctional facility in 1999. The subsequent outline of events demonstrates why the United Nations (UN) Human Rights Committee determined in 2006 that the Australian government breached Brough's inherent dignity and his right to protection as a minor.
Kariong Juvenile Detention Centre
Corey was among a group of detainees who participated in a riot in an attempt to draw attention to the mistreatment and brutalisation of inmates by Kariong Juvenile Detention Centre staff. He, along with other boys involved in the protest, was charged with a number of offences. The charges against all the young rioters were later dropped. Following the event, the Ombudsman conducted an inquiry into the conditions at Kariong and recommended a complete set of changes for staff to implement.
Parklea Correctional Centre
On 21 March 1999, Corey and three other juveniles were transferred to Parklea Correctional Centre in Sydney, an adult correctional facility, pursuant to section 28(A)(3) of the Children (Detention Centres) Act 1987. Corey protested against the transfer and wanted to remain in the juvenile detention facility. The human rights violations that were condemned by the UN took place during Corey's extended confinement in an isolated cell at Parklea during the period between 1 April and 25 April 1999. Specific events are as follows:
1 April 1999 - Solitary confinement
On this day, Corey demonstrated the first inclinations of a self-destructive tendency, suggesting that he would commit suicide if he did not get out of his safe cell. After breaking a plate and shredding his mattress with a broken fragment, Corey was taken out of his segregation unit and placed into solitary confinement in a 'dry cell' at Parklea. The dry cell contained a metal bed, a steel toilet and two surveillance cameras. The officers report justifies the extended confinement of the young offender on the basis that Coreys association with other inmates constituted a threat to the safety and security of both prisoners and staff at the Correctional Centre.
7 April 1999 - Continued isolation; removal of clothes and blankets; continued exposure to artificial light
While still in the dry cell, Corey was observed to be obstructing the surveillance camera lens. A decision was made to remove all items from his cell that could be used to obscure the camera lenses. Corey states that a group of officers came to his cell and ordered him to take all his clothes off. Upon refusal, the young detainee says that they assaulted him below the rib area and proceeded to remove all his clothes except his underwear. After stripping him of his garments, Corey was confined to his cell for 72 hours alone and left to sleep on a steel bed with no mattress or blankets. Following the incident, it appears that the light in the cell was left on continually day and night. On 9 April, the pillow and blanket were returned to him.
13 April 1999 - Continued isolation; second removal of blanket
Leo Pottinger, a caseworker for the Aboriginal Deaths in Custody Watch Committee, visited Corey and observed that the young offender had no blankets and appeared to be anxious, nervous and had no garments to protect him from the cold.
15 April 1999 - Continued isolation; second removal of clothing; administered anti-psychotic medication without proper assessment
Corey's clothes were removed and again he was left in only his underwear. The young Aboriginal man was subsequently observed trying to hang himself using his undergarment. Officers entered the cell and, when Corey resisted, forcibly removed his underwear 'noose'. Corey was then disciplined for assault and confined to the cell for a further 48 hours. During this period, he was administered anti-psychotic medication; it is not evident whether a medical assessment was made to determine whether it should be prescribed to him or not. Corey was subsequently prescribed medication each day until which time he could be examined by a psychiatrist.
20 April 1999 - Continued removal of clothing and blankets
Leo Pottinger visited Corey again and acknowledged that the young Aboriginal was dressed only in a towel and was not properly protected from the cold.
25 April 1999 - Temporary permission to leave solitary confinement
Corey was finally allowed to vacate the dry cell, but only during daylight hours.
7 May 1999 - Solitary confinement concludes
Corey was moved out of the dry cell completely, at which point it is recorded that his behaviour improved significantly.
Corey's Position as a Vulnerable Person
In the circumstances, Corey'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 this clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position.
Corey has a mild intellectual disability. He has significant impairments in his adaptive behaviour as well as his cognitive functioning. His communication skills are severely impaired, largely because he is functionally illiterate. He was diagnosed with an Attention Deficit Disorder in 1993.
Corey's Aboriginal Status
The 1991 Report by the Royal Commission into Aboriginal Deaths in Custody demonstrates the extent to which Aboriginal people are over-represented in New South Wales prisons. Furthermore, segregation, isolation and restriction of movement within prisons have systemically had more deleterious effects on Aboriginals then on other inmates, given the importance they attach to a high degree of mobility and access to their family and community.
Corey thus required special care by state officials due to his status as a minority in need of protection; this responsibility was not fulfilled by the state. As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and his attempt to commit suicide.
The UN's Determination That Corey's Human Rights had been Violated:
Under the UN's International Covenant on Civil and Political Rights, to which Australia is a signatory, the state was required to uphold Corey's fundamental human rights. The UN Human Rights Committee specifically concluded that Corey's treatment by the State party was in violation of Article 10, Paragraph 1 and 3, which requires the state to accord Corey with treatment that was appropriate to his age and legal status. These rights also correlate with Article 24, Paragraph 1 of the Covenant which additionally stipulates the need for protection of minors.
Article 2 of the Covenant creates a substantive right that can be relied upon independently of other Covenant rights. In principle, the Human Rights Committee found that judicial remedies were available in accordance with Article 2; given this finding, the Committee nonetheless recognized that it would have been futile for Corey to commence court proceedings given the circumstances of his case.
Unavailability Of An Effective Remedy
Given Corey's age, his intellectual disability and his particularly vulnerable position as an Aboriginal, the Committee concluded that he made reasonable efforts to avail himself of existing administrative remedies, to the extent that these remedies were known to him and insofar as they can be considered to have been effective.
Ombudsman - any finding of this body would have hortatory rather than binding effect so far as the authorities were concerned.
Minister for Corrective Services/Serious Offenders Review Council - Corey had not been informed about these review options.
Aboriginal Deaths in Custody Officer/Governor of the Correctional Centre - The Committee acknowledged that Corey had made several attempts to change conditions relating to his sentence by lodging complaints to his Aboriginal Deaths in Custody Officer, as well as to the Governor of the Correctional Centre, the latter of who discouraged lodging any more complaints.
Judicial remedies - most of the measures imposed on Corey were consistent with the relevant domestic law. Furthermore, the UN Human Rights Committee recognised that Australian courts would not interfere with administrative decisions of prison authorities if they were bona fide and reasonable.
Tort of Negligence - lack of evidence would pose a problem for filing a court action based on a breach of duty of care.
The Australian Government, despite being a signatory to the United Nations International Covenant on Civil and Political Rights, has refused to acknowledge the Committee's decision and are currently ignoring calls for an effective remedy for this vulnerable individual.
Australian Government's Response
The Australian government has since responded to the United Nations ruling on Corey's case. In an official communication concerning the case released by the Attorney General's office, the Australian government in no uncertain terms finds their actions in regards to Corey as reasonable to the situation.
The government finds that Corey "was dealt with in a manner appropriate to his age, indigenous status and intellectual disability." Accordingly, the government does not find that compensating or reducing Corey's jail time is appropriate. In regard to the United Nations call for changes in the Australian policy, the government cites that there have been changes in the system since the ruling. These changes include Reception Assessment for incoming inmates "to identify 'at risk' inmates and necessary arrangements for their safety." And the 'Two Ways Together' program which aims to focus on "early intervention, diversion and breaking the cycle of family violence to reduce the over-representation of Aboriginal people in the criminal justice system."
When Corey's case was brought up in NSW Parliament, DCS stated that "Australia does not recognise the covenant as binding and the committee cannot make any legal enforceable orders against the Commonwealth or New South Wales." DCS has also said that the measures invoked with Corey are still in practice currently. With such utter disregard for not only the United Nations, but for humanity dignity, it is a wonder how Australia can still tout itself as a multicultural and accepting society.
Brough and Beyond:
Corey's case cannot be viewed in isolation. Systemic reform needs to be implemented for child detainees at large. In 2006, approximately 4500 young people went through custodial services. New legislation, the Children (Detention Centres) Amendment Act 2006, now permits adult corrections officers to use attack dogs in juvenile detention centres, allows for indefinite segregation of a detainee and extends isolation of a detainee to 24-hours as a form of punishment. This legislation both offends international human rights standards and contravenes several recommendations of the Royal Commission into Aboriginal Deaths in Custody. Furthermore, unequivocal evidence suggests that Australian prison officials are administering drugs with dangerous side effects to prisoners to manage behaviour. Corey's incident demonstrates merely one example of a situation where an inmate has been sedated against his will without a proper diagnosis preceding the administration of harmful medication.
The human rights violations against Corey also suggest the need to combat the growing and disproportionate number of Aboriginals in prison, particularly among the youth.
The problems with Corey's situation arose both before and after his detention. Prior to the riot at Kariong, there should have been a system where prisoners and staff would be able to communicate their needs to each other without the risk of violence. The lack of adequate negotiation, listening and fair response only sets up a volatile environment, ripe for potentially violent disruptions. What needed to be in place after his detention at Parklea is a set of objectives or avenues to achieve a better suited criminal justice system which should include the following: binding guidelines to protect human rights of inmates, a community based strategy for providing support to young offenders (particularly Indigenous offenders), and the need for a comprehensive and independent review of the system for youth detention.
In 2005, an Aboriginal was 19 times more likely than a non-Aboriginal to be detained in a juvenile facility. More generally, Aboriginal individuals currently make up only 2.4 percent of the Australian population but represent 22 percent of prisoners nation-wide. Imprisonment rates for Aboriginals are steadily increasing, which is clearly a result of disadvantage, discrimination and poverty.
What This Campaign Aims To Achieve
Justice Action, together with their advocacy partnerships, is currently seeking to expand support for the already existing youth and prison reform activists working on this matter. Some of the objectives sought include:
- seeking acknowledgement from the Australian and NSW Governments that they have violated Corey's human rights
- seeking an effective remedy for Corey from those governments, including compensation, consideration of early release options, and a post-release support package for Corey and his family
- the need for a comprehensive and independent review of the system for youth detention
- creation of binding guidelines to protect human rights of inmates in all correctional facilities, supported by appropriate training and enforcement
- the need for an effective and community-based independent monitoring system of corrections facilities, including prisoners kept in isolation
- the need for an effective justice system within the prison systems (access to independent complaint review)
- Improved coordination with the Human Rights and Equal Opportunity Commission (HREOC), including public reporting together with enhanced investigation and recommendation-making powers for HREOC
- the failure to learn from the RCIADIC process - to treat Indigenous people in custody with respect
- the need for a broad community-based strategy for providing support to young offenders, particularly Aboriginal offenders (which is currently not found within the prison systems)
- the need to develop effective mechanisms for addressing domestic human rights issues (connecting international best practices with our own), requiring a whole of government approach, and
- empowering Indigenous communities to address violence and abuse.
OPCAT and Australia
OPCAT (Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment) is the addition to the United Nations Convention against torture, which establishes a system of inspection of detention centres around the world. Countries who have signed OPCAT include: Cambodia, Benin, United Kingdom, Croatia, Spain and New Zealand. As of now, Australia has yet to either sign or ratify this new protocol.
Is it at all surprising that a country who as recently been found to have robbed one of its prisoners of his human rights in the eyes of the United Nations refuses to have their detention centres inspected by the United Nations? Of course, this is relating to the case of Corey Brough whom the UN Human Rights Sub-Committee found in favour of in 2006. The Australian government refused to adhere to the ruling of the UN, which stipulated that changes must happen in the policies of segregation and Aboriginal inmates.
The links between Corey's case and OPCAT expectations are clear. Australia was found to have violated articles 10 and 24 of the International Covenant on Civil and Political Rights. Had Australia been a signatory to OPCAT these violations could have potentially not occurred. Australia's lack of concern for the human rights of its citizens has never been more apparent than in its utter disregard for United Nation policies and procedures. It is important to note that the annual meetings of OPCAT and their advisory board, the Geneva based group APT, will this year be held in Sydney the final week of September 2007.
How to Help:
Contact us at Justice Action
Susan Allan, 'Chronic Ill-Health in Australia's Aboriginal Prison Populations' (12 June 2006).
Council for Aboriginal Reconciliation, Reconciliation and Social Justice Library, 'Royal Commission on Aboriginal Deaths in Custody,' (28 April 1998). http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/rciadic/
Michelle Hannon, United Nations Human Rights Committee Communication on Behalf of Corey Brough v. Australia, (2003).
Parliament of New South Wales, Children (Detention Centres) Amendment Bill 2006, Explanatory Notes. http://www.austlii.edu.au/au/legis/nsw/bill_en/ccab2006350/ccab2006350.html
Parliament of New South Wales, General Purpose Standing Committee No. 3 Justice, Juvenile Justice, (28 Monday 2006).
The United Nations Human Rights Committee (2006), Communications No. 1184/2003.
The United Nations International Covenant on Civil and Political Rights, (7 July 1994).
Wynhausen, Elisabeth, 'Dangerous Drugs Used to Restrain Inmates,' The Australian, (15 September 2006).
United Nations International Covenant on Civil and Political Rights
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State