Right to humane treatment in detention

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to humane treatment in detention?

The right to humane treatment in detention requires that persons deprived of their liberty be treated humanely and with dignity.

The right to humane treatment in detention needs to be considered in all cases in which a person is detained, not only under the criminal justice process. It complements the prohibition on torture and cruel, inhuman or degrading treatment or punishment, but is engaged by a wider range of less serious mistreatment. In other words, mistreatment may amount to a violation of article 10 of the International Covenant on Civil and Political Rights (ICCPR) even if it does not rise to the level of torture or cruel, inhuman or degrading treatment or punishment. Numerous international instruments establish standards to be observed in the treatment of persons in detention.

Where does the right to humane treatment in detention come from?

Australia is a party to seven core international human rights treaties. The right to humane treatment in detention is contained in article 10 of the International Covenant on Civil and Political Rights (ICCPR).

See also article 5 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) , article 37 of the Convention on the Rights of the Child (CRC) and article 14 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the right to humane treatment in detention?

You will need to consider the right to humane treatment in detention when you are working on legislation, a policy or a program that:

  • enables or requires the detention of any person by either a public or private authority
  • relates to the conditions under which persons are detained, including in prisons, transportation arrangements, immigration detention facilities or for purposes such as national security, mental health or contagious disease
  • relates to the segregation of accused persons from convicted prisoners in places of detention
  • relates to the segregation of accused children from adults in places of detention
  • provides powers for officials in custodial facilities, for instance powers of search and seizure, or
  • provides assistance to strengthening detention capabilities of a foreign country.

This list should not be regarded as exhaustive.

The rights provided for in the ICCPR apply to individuals within the territory of the country and subject to its jurisdiction. The UN Human Rights Committee has stated that in some circumstances, a person outside a country's territory could be considered subject to its jurisdiction. Australia has accepted that there may be exceptional circumstances in which the rights provided for in the ICCPR may be relevant beyond the territory of a country. For instance, where members of the Australian Defence Force who are deployed overseas detain a person, the right to humane treatment in detention would be among the guarantees in the ICCPR that would potentially apply.

What is the scope of the right to humane treatment in detention?

Article 10 of the ICCPR requires that persons deprived of their liberty be treated humanely and with dignity. The right complements the prohibition on torture and cruel, inhuman or degrading treatment or punishment, but is engaged by a wider range of less serious mistreatment. Mistreatment may amount to a violation of article 10 even if it does not rise to the level of torture or cruel, inhuman or degrading treatment or punishment.

This right applies not only to those detained for criminal purposes (including when awaiting extradition), but also to those detained for other purposes under the authority of the government, such as mental health and immigration. It applies to anyone detained, regardless of age or citizenship. The right applies in all facilities within the jurisdiction of the country, even if operated by private contractors.

The right to humane treatment means that detainees should not be subject to any form of hardship or constraint in addition to those that are an unavoidable incident of detention in a closed environment. The Human Rights Committee has stated that the right has been violated in cases where the detainee was, for example:

  • refused necessary medical attention
  • unreasonably denied reading and radio facilities
  • confined to his or her cell for an unreasonably long period
  • subjected to unreasonable restrictions on correspondence with his/her family
  • held in 'incommunicado' detention with insufficient justification.

'Incommunicado detention' means that the detainee cannot communicate with anyone other than his or her captors and perhaps co-detainees. In other words, an incommunicado detainee is permitted no contact with the world and so cannot communicate with family, friends, independent lawyers or doctors.

International standards for the treatment of persons when deprived of liberty have been established in a number of instruments, which are listed under the 'Where can I read more about the right to humane treatment in detention?' section below. These instruments are not binding but provide useful guidance.

UN Subcommittee on Prevention of Torture

The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment establishes the UN Subcommittee on Prevention of Torture. It provides for visits by the Subcommittee to places of detention to ensure that relevant human rights standards are being observed. It also envisages visits by domestic authorities for this purpose. Australia signed the Optional Protocol on 19 May 2009 and is in the process of working towards ratification.

Non-refoulement

There is no non-refoulement obligation arising from article 10 of the ICCPR. That is, there is no prohibition on removal from Australia of a person who is at risk of being treated inhumanely in detention in the country to which the person is to be removed. However, should there be a risk that the treatment would constitute torture, or cruel, inhuman or degrading treatment or punishment, a non‑refoulement obligation would apply. It is important that the circumstances of each case be carefully considered.

Can the right to humane treatment in detention be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to humane treatment in detention'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may be taken only 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

However, if the treatment constitutes torture or cruel, inhuman or degrading treatment or punishment, no derogation or limitation under the ICCPR is permitted.

Armed conflict

During a time of armed conflict, international human rights law, including the right to humane treatment in detention, remains generally applicable. However, during armed conflict, international humanitarian law, as the body of law that applies specially to the circumstances of armed conflict, is the relevant standard under which compliance with the right to humane treatment in detention is assessed.

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Reservations

Article 10(2) of the ICCPR requires the segregation of accused persons from convicted prisoners and that they be treated in accordance with their status as persons who have not been convicted. Article 10(3) requires the segregation of accused juvenile persons from adults. There is no requirement that accused persons be housed in separate facilities or buildings, provided that contact with convicted prisoners is minimised.

Australia has a reservation to these provisions that reads:

In relation to paragraph 2(a) the principal of segregation is accepted as an objective to be achieved progressively. In relation to paragraphs 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.

There is a similar provision to article 10(2)(b) in the CRC, namely article 37(c):

Every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

Australia has a reservation to this provision that reads:

The obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia.

These reservations mean that Australia does not accept the obligations in article 10(2)(b) of the ICCPR and article 37(c) of CRC, and is not bound by them. Accordingly, Australia is not bound in all cases to separate children deprived of their liberty from adults.

During Australia's Universal Periodic Review in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties.

Which domestic laws relate to the right to humane treatment in detention?

Numerous laws govern the treatment of persons in detention in particular circumstances, including:

  • Part IC of the Crimes Act 1914, relating to the investigation of Commonwealth offences
  • Division 105 of the Criminal Code Act 1995, which enables the making of a preventative detention order to detain a person to prevent the commission of a terrorist act
  • Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 provides for the issuing of a 'questioning and detention warrant' authorising a person to be questioned by ASIO and detained by a police officer, where the issuing authority is satisfied that this will substantially assist the collection of intelligence important in relation to a terrorism offence.

Internal instructions of the Department of Immigration and Citizenship provide guidance regarding the treatment of persons in immigration detention under the Migration Act 1958.

What other rights and freedoms relate to the right to humane treatment in detention?

The right to humane treatment in detention may also be relevant to:

  • the prohibition on torture or cruel, inhuman or degrading treatment or punishment in article 7 of the ICCPR
  • the right to liberty in article 9 of the ICCPR
  • the right to freedom of movement in article 12 of the ICCPR
  • the right to freedom of expression in article 19 of the ICCPR
  • the right to freedom of assembly and association in articles 21 and 22 of the ICCPR
  • the right to take part in public affairs and elections in article 25 of the ICCPR
  • the right to privacy in article 17 of the ICCPR
  • certain rights in criminal proceedings in article 14 of the ICCPR
  • the protection of families and children in articles 23 and 24 of the ICCPR
  • the rights of children in the criminal justice system in the CRC
  • the rights of people with disability in the criminal justice system in the CRPD.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 10

  • All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
    1. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
    2. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
  • 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.

See also: CERD article 5; CAT article 2; CRC article 37; CRPD article 14.

Where can I read more about the right to humane treatment in detention?

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