Kenyon, Tony --- "President s page: Perils of detention" [2016] PrecedentAULA 57; (2016) 136 Precedent 3

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PERILS OF DETENTION

By Tony Kenyon

My first President’s Page was entitled ‘The fight for justice never ends’ and I am moved to reflect on these prophetic words, given events since then.

I refer to the ABC’s Four Corners report on juvenile detention in the Northern Territory (NT) and, in particular, the Don Dale Youth Detention Centre.

Extraordinary that it was filmed (and we might be forgiven for speculating what was not).

Commendably, the Prime Minister immediately initiated a Royal Commission. The ALA expressed its concerns regarding the initial appointment of a former NT Supreme Court Chief Justice, given he had no doubt sentenced some children to be detained in Don Dale. After consultation, new commissioners were appointed, including Indigenous advocate, Mick Gooda. The UN High Commissioner for Human Rights further urged the federal government to expand the scope of the investigation beyond the NT, as did the ALA.^[1]

Detention of children carries an enormous responsibility. We cannot allow uncontrolled solitary confinement, restraint chairs, masks and hoods, let alone chemical tear gas, to define us.

Unfortunately, detention issues didn’t stop there. On 10 August 2016, the Guardian reported on the Nauru Files containing details of alleged abuse of residents of Nauru’s immigration detention centre. The ALA was vocal in demanding that offences revealed in these Files be prosecuted by Comcare.

In the past this country was well-served with a bi-partisan approach to immigration, not a bi-partisan race to the depths of despair. Once there was compassion. We were the better for it.

No one wants to see people drown at sea. However, detaining refugees in this way is just cruel. We can’t allow this to be the benchmark. There has to be a better way.

Human rights and detention also have the potential to clash in the Commonwealth Attorney-General, George Brandis’s proposed Bill allowing for indefinite detention of people convicted of ‘serious’ terrorism offences.

I have no doubt the motivation is well-intended, to protect Australians. Yet I am not aware of any clear evidence to suggest that indefinite detention would be effective in reducing the risk of terrorism. This may in fact contribute to the very thing it is seeking to prevent. I have written to the Attorney-General expressing these concerns.

Indefinite detention for perceived future threats is a path fraught with danger and complex uncertainties. It demands scrutiny of the highest order for good reason. We need only remind ourselves that capital punishment was reserved for the ‘serious crimes’ and the sorrowful history that produced.

On access to justice, I had an opportunity to meet Mr Robert Hulls, former Victorian Attorney-General, now Director, RMIT Centre for Innovative Justice (CIJ), who as Attorney-General established Victoria’s first Charter of Human Rights.

My interest was the work of the CIJ in the area of access to justice through technology. Technological developments are providing direct and cost-effective legal services virtually to those who would never be able to afford such services, especially in the areas of family law, family violence, child custody issues and disputes. I recommend a visit to the CIJ website.

Financial services have been a regular cause for concern of late, and the ALA has responded by developing policy around this issue to ensure that vulnerable people are protected. I have recently been referred to various forms of advertising by the superannuation industry, exhorting their members not to waste money using a lawyer for TPD claims.

This is staggering, given the scandalous CommInsure tactics designed to deny claims, and the flawed claims assessments for police officers seeking workers’ compensation.

ALA has long argued for a Code of Practice to be implemented regulating the insurance industry.

ALA conferences continue to inspire. I was fortunate enough to attend the ALA Medical Law Conference on 29 July 2016 in Sydney. Member attendance was up 50 per cent, the speakers were exceptional and the conference an outstanding success.

Finally, I look forward to seeing as many of you as possible at the ALA National Conference from 19-22 October 2016 at Sheraton Mirage Port Douglas. The keynote address is to be delivered by Professor Gillian Triggs, President of the Australian Human Rights Commission.

Tony Kenyon is Northern Region Practice Group Leader (MVC/WC) with Slater + Gordon in Epping & Reservoir Victoria.

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^[1] Australian Lawyers Alliance, ‘ALA Welcomes Royal Commission announcement into children in detention’ (Press Release, 26 July 2016) http://www.lawyersalliance.com.au/news/ala-welcomes-royal-commission-announcement-into-children-in-detention.