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Review Essay
Human Rights in Closed Environments by Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds) (2014) Federation Press, 304 pp, ISBN 9781862879652
Carolyn McKay[∗]
Abstract
Human Rights in Closed Environments examines the human rights of people detained in ‘closed environments’; that is, non-public sites of segregation including prisons, police cells, immigration detention centres, disability facilities and psychiatric institutions. The inmates of such closed environments are vulnerable to human rights violations given their isolation from society and powerlessness. With reference to the author’s fieldwork in the closed environment of correctional facilities, this essay reviews Human Rights in Closed Environments and argues that there is a need for governments and the broader community to interrogate the ideological basis for detention. A human rights oriented discourse suggests that the loss of liberty should not be exacerbated by further punitive and degrading measures; rather, the emphasis needs to shift to a paradigm of transparency, dignified care, responsibility and rehabilitation.
With soaring rates of incarceration, the increasing privatisation of custodial facilities, and unprecedented migration of refugees, there is an imperative in responding to those in crisis. Through the media we catch glimpses of the plight of people in need. We witness masses of displaced people willing to undertake perilous journeys to flee war, atrocities and humanitarian disaster; we see the negative impacts of the human warehousing of marginalised populations; and we are aware that people with intellectual disabilities may be unnecessarily segregated from the community. As a society, we cannot put our collective heads in the sand to ignore this state of affairs,[1] given these situations present conditions where individuals are susceptible to harm. How should society respond to those who breach our laws or borders? How should we treat those who legitimately seek refuge or require mental health care? Does our society seek to heal, snub or exact vengeance?
Within this context, Human Rights in Closed Environments,[2] edited by Bronwyn Naylor, Julie Debeljak and Anita Mackay, presents a timely contribution to existing scholarship and prevailing social commentary. This comprehensive publication, emerging from a Monash University Australian Research Council (ARC) Linkage Grant and 2012 conference, is significant in furthering our understanding of international human rights obligations and how these rights should apply in circumstances where individuals are denied their liberty. Uncomfortable realities are exposed as the authors delve into the invisible lives of inmates. The book embraces international and Australian human rights perspectives to analyse how society can improve the conditions of disempowered and vulnerable individuals detained in closed environments. In Human Rights in Closed Environments, ‘closed environments’ are defined to include places where persons are deprived of their liberty and not permitted to leave at will; specifically, prisons, police cells, psychiatric institutions, closed disability units and immigration detention centres. As Naylor states, for people subject to a custodial sentence in the criminal justice system, the punishment is the loss of liberty. That is, we do not imprison for punishment, rather we imprison as punishment. The loss of liberty is, in itself, a profound form of punishment. Understood from this perspective, imprisonment and other forms of detention should not entail further punitive, degrading or draconian measures; incarceration should not be compounded by ‘harsh conditions, humiliation or violence’.[3]
This review essay starts by providing the context of my own research in closed environments and how that frames my argument that society needs to care about these ‘unseen’ people who inhabit these ‘unseen’ sites. This argument is premised on the notion that democratic societies have a responsibility to rehabilitate and treat with dignity those people who transgress social and legal norms. People who have lost their liberty should not be further punished through harsh and degrading conditions. Within this context, in Part III I reflect on human rights legislative, regulatory and monitoring frameworks and Australia’s piecemeal response to international measures. Other jurisdictions including the United Kingdom (‘UK’) and New Zealand (‘NZ’) provide examples of the synthesis of human rights into the everyday practices of closed environments. In Part IV, the meaning of ‘closed environments’ is examined — what this term encompasses and how these sites inherently challenge human rights objectives. Part V focuses on who is confined in closed environments as inmates, patients, immigrants, or as individuals with a disability. Society often finds it difficult to treat with dignity, let alone compassion, or assimilate such people who exhibit aberrant behaviour or breach the laws of the land. The review essay concludes with an evaluation of why we should care about people who are placed in detention, and how indifference to humane treatment reflects on society as a whole.
A key index of democracy is how a government administers detention, yet approaches to confined, vulnerable populations vary considerably.[4] At one extreme, there is the punitive and exclusionary approach based on amplifying community fears of perceived social deviants, with the admonition of expressly harsh punishments and oppressive, precautionary measures.[5] Punitive laws and policies suggest a ‘disregard for the rights or humanity of those being sanctioned’.[6] Tabloid reporting and the charged political slogans of ‘zero tolerance’, ‘get tough on crime’[7] and ‘stop the boats’[8] prey on community fears of the ‘other’, feeding societal anger and insecurity. There is a correlation between ‘popular punitivism’[9] and an increasingly risk adverse, retributive and less tolerant society.[10] In this context, seeking asylum is framed as illegal;[11] ‘crimmigration’ refers to the conflation of criminal laws and immigration policies.[12] With the prevailing ‘carceral lexicon’ of ‘dangerousness and risk’ comes a focus on attaining the complete banishment of perceived deviants from society[13] — a paradigm of exclusion.[14] Pursuant to such a coercive and inherently uncaring discourse, governments may seek to erode the civil rights and procedural safeguards that would normally protect individuals from abuses of state power.[15]
The antithesis of this approach is one that expresses core values of humanity and empathy; an approach that focuses on society’s responsibilities to care for rather than punish those in need, and one that respects the rights of individuals to be treated as fellow humans. Where there is injustice or suffering, it is society’s responsibility to assist, heal or rehabilitate. The explicit goals are reform and social inclusiveness instead of vengeance and, where possible, reintegration into society rather than indefinite exile.[16] A humane custodial philosophy places importance on dignity and the avoidance of further degradation.[17] While there are ‘perpetual tensions’ between the responsibilities to detain individuals in certain circumstances and the goal of rehabilitation, it is possible to design facilities to be relatively open, rehabilitative and therapeutic in order to ‘ease psychological pressures, mitigate conflict and minimize interpersonal friction’.[18] With a strong commitment to human rights, Scandinavian countries are exemplars of the notion that institutions such as prisons should not be pivotal in solving noxious social problems.[19] It is within this context that the human rights of detained individuals may be examined. Human rights stipulate the dignity and worth of all humans, so that even detained people retain their human rights, except for the obvious loss of liberty.[20] Individuals who are deprived of their freedom are to be treated with respect for their inherent dignity and with the ‘right to be free from torture, inhuman or degrading treatment’.[21] A human rights approach in closed environments therefore involves a shared understanding between custodians and detainees regarding dignity, respect and humanity.[22]
From an Australian perspective, given contemporary political discourse that challenges both notions of human rights and the ideological underpinnings of incarceration and detention, there is a need to examine our international and national rights and responsibilities. Current sentiment suggests that even discussing human rights and closed environments together may appear surprising, if not contradictory, to some sectors of Australian society. Why should we care about what happens to ‘others’ in remote or inaccessible sites? It seems that society’s rationales for confining people, and the manner in which we treat them, require a contemporary (re)appraisal to ensure respect for humanity as well as transparency and accountability in procedure. In particular, the application, implementation and monitoring of human rights in closed environments should be considered and in this regard, Human Rights in Closed Environments is a welcome contribution.
My response to this book is framed and informed by my own research in closed environments, specifically correctional centres of the New South Wales (NSW) criminal justice system. Through one-on-one semi-structured interviews with 31 inmates, I have been researching the subjective experience of inmates who use audio visual links from prison to ‘appear’ in court and to access legal advice. Implicit in my research has been an interrogation of emergent communication technologies and how these technologies impact prisoners’ experience of legal procedure and access to justice. In particular, I examine the repercussions on notions of due process, fairness and human dignity in this technological paradigm of exclusion. I argue that audio visual link technologies generate a new and heightened zone of demarcation in criminal justice by spatially containing prisoners in sites of incarceration, remote from their legal representatives and isolated from impartial courtroom space. Video link technologies effectively conflate the custody dock and legal conferencing space with the space of prosecution and punishment, compromising the perceived impartiality of proceedings.[23] Notions of equality of arms and neutrality are implicated when an incarcerated person appears on a screen in a remote courtroom, locked within the space of state control and a regime of punishment. As such, video links may be seen as technologies that are punitive, harsh and degrading of the individual. Drawing on my prison fieldwork, I have developed an understanding of how unseen these people and sites are to the general community and how easy it may be for society to forget about its disadvantaged and often despised members. Within a broader context of detention, in this review essay I question the moral compass of a society that inflicts cruel, inhuman or degrading treatment on people deprived of liberty.
Human Rights in Closed Environments responds to a renewed interest in human rights discourse and the raft of international treaties that seek to articulate fundamental human values. While the editors provide that the ‘internationally recognised suite of human rights guarantees is at the pinnacle’ of their regulatory framework,[24] they do not actually provide a definition of ‘humane’ values or ‘human rights’ measures. They do, however, refer to the core human rights protections and measures for people deprived of liberty as including treatment with ‘humanity and with respect for the inherent dignity of the human person’, as well as ‘freedom from torture and other cruel, inhuman and degrading treatment and punishment, and rights to life, privacy and family’.[25] These should be important guarantees for people deprived of liberty.
My research was not founded on a human rights approach, yet throughout my fieldwork, many prisoners spoke to me of the pains of isolation, disempowerment and not being treated as a human being. During her video link court appearance from prison, F05 said: ‘I felt like an alien ... I’m out of the picture, I’m just on the screen’. M04 was positive towards video links from prison although he said:
You do kind of have a little bit of apprehension because you’re only a bunch of pixels on a screen; if whether or not the judge is going to be able to look at you and actually feel who you are, rather than just see you wearing green [prison attire].
I gathered much data relating to the dehumanising impact of video technologies in prison and how they contribute to prisoners’ sense of isolation from the outside world.
International measures relevant to closed environments include the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (‘OPCAT’).[26] Pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’),[27] OPCAT provides a monitoring mechanism at international and national levels. Other relevant treaties include the International Covenant on Civil and Political Rights (‘ICCPR’)[28] and the Convention on the Rights of Persons with Disabilities (‘CRPD’).[29] However, while Australia has agreed to human rights treaties, the book’s editors note that the process of actual ratification is incomplete, meaning that Australia ‘falls far short of comprehensive domestic implementation’ of its human rights responsibilities.[30] So while human rights may be ‘ethically attractive’,[31] there are limited legal enforcement mechanisms. In the absence of a comprehensive and uniform national approach to closed environments, the implementation and enforcement of human rights is compromised.[32] For example, at a state and territory level, only the Australian Capital Territory (‘ACT’) and Victoria have enacted domestic legislation to give effect to human rights for prisoners.[33] Some of the ICCPR provisions are reflected in Victoria’s Charter of the Human Rights and Responsibilities Act 2006 (Vic).[34] Although human rights conventions may not be directly enforceable at a federal level,[35] they still exert some influence in Australia. For example, legislation should be consistent with international instruments, and the High Court has considered that international human rights laws may influence the common law.[36] However, without a national strategy and only patchwork responses to human rights, the operationalisation of human rights into the day-to-day procedures in closed environments is impeded. To be effective, human rights regulations require translation into the everyday practice of frontline personnel working inside closed environments.[37] Australia’s legislative situation has become increasingly contentious. For example, in relation to Australia’s policy of mandatory and indefinite offshore detention of asylum seekers, the President of the Human Rights Commission, Professor Gillian Triggs stated:
Australia’s immigration laws are exceptional. No country in the world, especially not comparable countries such as the UK, Canada, New Zealand and the US, mandates the indefinite detention of children as the first policy option and then denies them effective access to the courts to challenge the necessity of their detention over months and even years.[38]
The atypical Australian approach results in tensions in domestic and international political commentary. Focusing on whether immigration detention, as a core function of the state, may be delegated to private contractors, Penovic argues that the ‘ill-conceived and punitive detention regime’ undermines the realisation of human rights in Australia.[39] In terms of the criminal justice system, Grossman identifies the over-representation of Indigenous Australians in prisons as a major human rights issue.[40] These issues manifest an indifference, at least at a political level, to the human rights of detained people. How, then, can Australia stand in judgment of other nations’ human rights violations?
All the authors in Human Rights in Closed Environments emphasise the need for appropriate regulatory frameworks and independent monitoring mechanisms. Negative, secret cultures can flourish in closed environments, so the paradigm of opacity needs to be replaced by transparency.[41] External monitoring of closed environments ensures transparency and accountability, reinforces overarching human rights objectives and compliance, and prevents systemic mistreatment. Certainly, more ‘permeable’ institutions are ‘less prone to the development of abusive practices due to the transparency of the organization’.[42] Monitoring policies, such as unannounced visits by scrutineers and effective reporting, safeguard rights of complaint and remedy. In my research, I examine how, as a consequence of the expanding use of audio visual technologies for prisoners’ access to legal advice, legal representatives such as Legal Aid lawyers are physically visiting prisons less frequently. In turn, this affects the independent scrutiny of prisons, prisoners and their conditions, making prisons increasingly unknowable and isolated.
Entwined with the regulatory and monitoring mechanisms is the various authors’ focus on the need for cultural change, both within closed environments and in broader society. Throughout the book, strategies and organisational policies are suggested to increase an awareness and advancement of human rights. The challenges and positive experiences of closed environments in other jurisdictions such as NZ and the UK, where human rights legislation has been implemented, are examined. These provide compelling evidence of how human rights in closed environments may flourish given appropriate monitoring mechanisms to prevent cruel, inhuman or degrading treatment of detainees.
In Human Rights in Closed Environments, ‘closed environments’ are defined as ‘any place where persons are or may be deprived of their liberty by means of placement in a public or private setting in which a person is not permitted to leave at will by order of any judicial, administrative or other order’; specifically, ‘prisons; police cells; forensic psychiatric institutions; closed mental health and disability units; and immigration detention centres’.[43] These are examples of what Goffman terms ‘total institutions’; that is, enclosed places where blocks of ‘like-situated’ people reside and lead formally structured lives, isolated from the broader community.[44] An inmate’s entire existence is regulated by the institution.[45] Enforced spatial confinement effects a straightforward solution to dealing with ‘the unassimilable, difficult to control, and otherwise trouble-prone sector of society’.[46] Such sites, as I found, are closed, that is, non-public and breach-resistant with strict security protocols governing access and egress. They are hidden sites that most members of society never step inside. Instead, our ideas and understandings of these opaque places are abstractions, often constructed through the media, film and television.
It is little wonder that the authors adopt the term ‘closed environments’[47] to refer to places of incarceration, detention and confinement. Once, prisons were highly visible and ostentatious proclamations of punishment. Now contemporary prisons seem camouflaged,[48] their inner workings, and those of other closed environments, are seldom revealed.[49] In the criminal justice context, punishment by imprisonment is increasingly the most concealed part of the system.[50] Closed environments are often on the fringe of urban areas or utterly isolated, as is the case with Australia’s offshore detention centres on Manus Island and Nauru. The remote, closed nature of these highly controlled and surveilled archipelagos[51] expresses impenetrability and inviolability. But no system or environment can remain entirely closed from interaction with its surroundings. Several scholars suggest that the boundaries between the internal and external worlds of the ‘carceral habitus’ may be porous, and the institutions have interfaces between non-contiguous spaces, people and issues.[52] Closed environments may be ‘somewhat-less-than-total’ or ‘not-so-total’ due to a range of networked connections and relationships.[53] Stevens observes that closed environments ‘do not exist in a vacuum’.[54] In the context of my research, I posit that video links from prisons increasingly act as a portal for prisoners’ interaction with the outside world. As video links act as a conduit between conceptually linked but non-contiguous locations, they may be seen as adding a layer of permeability to the space of the prison, opening up opportunities for a greater level of human interaction.
However, recent Australian legislation seeks to restrict the flow of information from immigration detention centres; provisions aim to gag an ‘entrusted person’, such as a doctor, from disclosing conditions to the outside world.[55] Such legislation ensures that our detention centres are increasingly unknowable. These closed environments are not only architecturally and geographically cordoned off, but ideologically sealed as well. When society cannot see nor comprehend an environment, the possibilities of scrutiny and resistance to state authority, and the possibility of empathy and compassion, are compromised.
These closed sites are spawned by various statutory regimes: criminal, civil, migration, state and federal jurisdictions, and entwined with other disciplines such as medicine. The features of Australian closed environments vary depending on the purpose of the detention and whether the facility is government- or privately-run. They all pose profound challenges to the notion of human rights,[56] as detained individuals rely on the closed institution for all their basic needs.[57] Stevens examines the common features of closed environments: (1) their concern with the management of people and the relationship between them; (2) the power imbalance in the relationship between staff and detainees; (3) the closure of the environment from the public scrutiny and potential to develop its own culture; and (4) their administration by hierarchical public or private bodies.[58] In a closed environment, implementing dignity, humanity and a ‘moral climate’ may seem incompatible with everyday operations.[59]
In her chapter, Penovic examines the outsourcing of Australian immigration facilities to private concerns since 1998.[60] Globally, the privatisation of closed environments has seen the growing involvement of multinationals including Serco, G4S and Transfield Services.[61] Penovic draws attention to the inherent tensions between profit-making concerns and human rights objectives. These privatised sites are problematic and the harsh conditions of mandatory detention are ‘exacerbated by the far-flung and remote’ locations.[62] The geographical distances ensure difficulties in reporting disturbances, suicides, sexual assaults, self-harm and harsh conditions to the outside world. Human rights measures, such as the guarantee of freedom from cruel, inhuman and degrading treatment, are particularly significant to immigration detention centres that may by-pass normal considerations of due process.[63]
‘Congregate and segregated facilities’ for people with intellectual disabilities are included in the research parameters of ‘closed environments’ by Frawley and Naylor, as the individuals do not choose to reside there and cannot leave at will.[64] Most people with an intellectual disability live in community-based residential facilities that can support a good standard of living. However, the closed environments of congregate residential institutions are geographically ‘segregated from society ... fenced off, and situated on the outskirts’ of urban areas.[65] Siting these facilities on the fringe of society contributes to isolation. The authors again question how fundamental human rights can operate in these environments that embody a lack of respect for humanity.[66]
In terms of the criminal justice system, the ‘intentionally coercive and punitive’ structure of prisons seems antithetical to a human rights approach. There are inherent difficulties in reconciling ‘dignity’ and ‘humane treatment’ within the operations of a dehumanising prison.[67] By default, imprisonment is likely to be ‘cruel, inhuman and degrading’[68] so that human rights protections for prisoners is ‘largely theoretical’.[69] Yet Naylor argues that a respect for human dignity should define the environment and everyday procedures within.[70] Owers examines human rights in prisons from the perspective of the UK’s National Preventive Mechanism (‘NPM’) pursuant to OPCAT.[71] She emphasises the importance of physically seeing these sites of incarceration: ‘you cannot inspect custodial environments by looking at papers ... you need to “be there and smell the urine”’.[72] Owers notes that, as these facilities and their operations are non-public and hidden, they may ‘invent their own reality and norms’.[73] Given the lack of public gaze and the implicit power imbalances, she emphasises the need for independent monitoring because closed environments can ‘go bad very quickly’ if the facility loses ‘its moral purpose’.[74]
Mackay addresses how the raison d’être of prisons and police custody conflicts with human rights objectives.[75] She too examines the inherent power imbalances in prisons and the challenges of operationalising human rights values to protect incarcerated individuals in an environment that ‘counteract[s] the intention of human rights law’.[76] Her focus is particularly on the ACT’s Alexander Maconochie Centre, a prison established with an express human rights agenda, ensuring the ACT’s status as having the most comprehensive human rights protection for prisoners in Australia.[77] Nevertheless, there are question marks regarding the success of the ACT’s implementation of human rights into prison as it grapples with a skyrocketing inmate population, increasing costs and a lack of a rehabilitation framework.[78]
This part focuses on the population that is confined in closed environments. Who are these inmates, detainees, perceived outlaws, exiles or social transgressors?
Penovic observes that the detainees in mandatory immigration detention are ‘seeking protection’ and have been detained indefinitely without criminal charge or conviction.[79] Australia’s immigration facilities hold adults and children. As at 30 June 2015, there were 2,013 people in immigration detention, and 1,189 people in community detention in Australia. Included in these figures were 127 children in immigration detention facilities and 642 children in community detention.[80]
Other ‘inmates’ relevant to Human Rights in Closed Environments are people with intellectual disabilities who have been placed in closed environments, usually by administrative decision.[81] Frawley and Naylor examine the plight of these individuals, categorised as people who: (a) had always lived in a residential institution; (b) had complex needs, challenging behaviour or impairments; or (c) were incapacitated.[82] Prison inmates are a clear example of people who inhabit closed environments. Naylor, Owers and Mackay separately draw attention to the rights of prisoners in both Australia and the UK. Incarcerated people have ‘multiple vulnerabilities’ that require recognition from their first encounter with frontline police officers.[83] Prisons have an over-representation of people who may have mental health issues or intellectual disabilities, are Indigenous, young, from ‘over-policed’ communities, and may have been victims of crime themselves.[84] These factors make such individuals vulnerable before the criminal justice system, in addition to being ‘politically powerless, unpopular people’ who have been exiled from society.[85] This is a population that lacks voice,[86] is often from areas of entrenched disadvantage[87] and may be indigent.[88] Mackay suggests that these vulnerabilities are the norm, underlining the importance of human rights protections in closed environments.[89] Prisoners are ‘juridically paradoxical being[s]’;[90] having broken the tacit pact with society to obey the laws of the land, they may be punished and banished from society. Yet prisoners remain citizens and the purpose of imprisonment should be their ‘rehabilitation with a view to their return, as positive and active members, of the broader society’.[91] The notion of rehabilitation seems somewhat lost at present in our risk-adverse and increasingly punitive society.
There are major challenges in making closed environments more compliant with human rights approaches. While my own research focus has not been directly on human rights abuses, the degradations of incarceration were narrated to me during my prison fieldwork. For example, prisoners spoke of the indignity of invasive strip searches that are required on entering, leaving and returning to prison. One woman (F01) said:
When they strip search you, you’ve got to take everything off and turn around naked and lift your feet so they see your soles, and ... you know that’s quite humiliating actually, yeah. I mean, God, I’m only a driving offender, I don’t know why I have to go through all that stuff.
The strip search is part of the transition from civilian self to the institutionalised self; a stripping of individual autonomy and a ‘personal defacement’.[92] A positive consequence of video link court appearance is that prisoners avoid the abasement of strip searches.
Another degradation of incarceration is the prison uniform or ‘prison greens’. My research interest centred on how inmates felt about their prison-clad appearance during audio visual links from prison with remote courtrooms, as compared with physically going to court and wearing civilian clothing. F12 told me: ‘I hate appearing in prison greens, it’s horrible, I mean, like it’s the worse possible way you could present yourself.’
Indeed, it is hard to contemplate a more demeaning and stigmatising outfit for court matters. Prisoners were acutely aware of the demarcation created by their remote and prison-clad appearance and that they were denied the opportunity to make a good impression on the remote judge or magistrate. The prisoners I interviewed spoke of their preference for wearing their civilian clothes that, according to F16: ‘Make you look like a person, not just an inmate’.
F14 felt that wearing greens generated a negative impression and she felt ‘a lot more comfortable and, umm, just a little bit more human’ wearing her own clothes for court. The prison uniform is ‘synonymous with culpability’[93] and another violation of the self. Prison attire is an ‘embodiment of punishment’[94] and ‘raiments of shame’.[95] Prisoners are thereby ‘othered’ and excluded from society through wearing signs of their spatial estrangement.[96] These are issues that highlight some of the tensions implicit in achieving humane treatment in closed environments and satisfying the ideals of human rights discourse.
The enforcement of human rights obligations is complicated when cost-cutting measures are implemented, and when private companies assume what has been traditionally a state responsibility for the care of vulnerable individuals. Should corporations be enabled to profit from incarceration?[97] Penovic argues that the Australian Government remains ‘responsible under international law for the conduct of the non-government entities’ that manage detention in the offshore locations.[98] Even where a private company operates a detention centre, the Government has a duty of care towards the detainees that is ‘non-derogable’.[99] Privately-run facilities must be administered in a manner that acknowledges the profound significance of the loss of personal liberty. Yet, successive Australian governments have sought to distance themselves from the immigration detention centres and ‘have failed to implement effective monitoring and oversight mechanisms’.[100] Penovic concludes that the involvement of profit-making enterprises in closed environments is ‘inherently inconsistent with human rights and intrinsically abusive’.[101] The outsourcing of immigration detention and the privatisation of prisons to profit-making entities are controversial and ideologically problematic for a number of reasons. First, the delegation of a core state role to a private operator compromises democratic values as well as legal process. Second, the notion of profit-making from human suffering may be considered morally repugnant. There is an inherent conflict of interest between a public desire to decrease levels of incarceration, and a private operator’s business strategies aimed at maximising an incarcerated population.[102]
In terms of people with intellectual disabilities, their fundamental rights should be consistent with the general community — respect, autonomy and dignity, and equality before the law.[103] Yet, Frawley and Naylor’s research indicated higher risks of human rights abuse for people in closed, institutional care.[104] The human rights of this population are frequently contested or not recognised.[105] Complexities especially arise when individuals’ behaviour has brought them into contact with the criminal justice system. Physical restraint, loss of liberty and medicalised chemical restraint may be imposed, challenging a human rights approach.[106] Ultimately, the authors conclude that the human rights of people with intellectual disabilities must be considered in terms of: first, what are their rights in a closed environment; and second, the right to not be contained at all.[107] Within a discourse of risk, control and harm minimisation, people with intellectual disabilities face continuing challenges in realising fundamental rights such as liberty, privacy and freedom from involuntary medication.
Overcrowding represents a human rights challenge in Australian prisons where the national prison population is growing significantly. Overcrowding of facilities translates into psychological pains, a lack of space and privacy, increased tensions, compromised sanitary conditions and safety risks for both prisoners and staff.[108] Recognising that Australian prisoners do not suffer ‘civil death’,[109] prisoners retain their rights of citizenship, other than the obvious loss of liberty.[110] Naylor investigates how these rights can be protected in the coercive situation of incarceration. She concludes that a fundamental concern for prisoners is to be recognised as a fellow human being and to be accorded respect.[111] Owers examines the synthesis of human rights into UK prisons and argues that this not only protects against abuses of power, but also enables a rehabilitative strategy.[112] Unlike Australia, the UK has implemented a National Preventive Mechanism pursuant to OPCAT. In this context, Owers argues for approaches that emphasise ‘ethics, values and desistance’ and to treat prisoners as humans rather than ‘as collections of criminogenic factors’.[113] Following this argument, prisons need to offer purposeful activities for prisoners. Punishment by incarceration should be used sparingly; furthermore, prisons need to offer real opportunities for positive change and self-development for prisoners.[114]
The over-representation of Indigenous Australians in prison is a significant, if not urgent, human rights issue mentioned briefly in Human Rights in Closed Environments. Aboriginal and Torres Strait Islander adults are 15 times more likely to be incarcerated than nonIndigenous adults. The figures for juvenile justice are worse still, with Aboriginal and Torres Strait Islander youths 24 times more likely to be incarcerated than nonIndigenous youths.[115] The rate of imprisonment of Indigenous women is particularly disturbing, with approximately onethird of female prisoners being Indigenous, while they account for only 2% of the general population.[116] The ripple effects of over-representation, as both offenders and victims, and the high rates of recidivism are felt by the broader community, creating intergenerational disadvantage, family deprivations, the loss of leaders and parents, and grave social rupture.
Human rights instruments, however, are not a panacea for cruelties or degrading treatment. While there have been many significant human rights developments throughout the world, Grossman states that ‘it cannot be affirmed that torture has decreased in the world’.[117] Furthermore, detention conditions remain generally disgraceful.[118] There are failures in the implementation of human rights strategies and grievance procedures, and governments continue to act with impunity. Despite these shortcomings, Grossman strongly advocates for a continuing aspiration to protect individuals in closed environments. The goal of dignity, humanity and freedom from cruel, inhuman or degrading treatment is a worthy struggle.[119] In this regard, OPCAT is described as a positive ‘groundbreaking’ mechanism for implementing human rights in closed environments, and Pierce examines the benefits that have flowed to NZ in ratifying this instrument and effecting preventative mechanisms.[120] The implementation of NPMs has furthered transparency and accountability, and improved custodial conditions in NZ.[121] Challenges remain in NZ in terms of resource allocations and the need to strengthen monitoring expertise. Pierce reflects on the much debated process of ratification of OPCAT in Australia and provides a non-exhaustive list of academic and advocacy work surrounding the ratification of OPCAT in Australia.[122] The benefits perceived by advocates include a national monitoring system that would encompass prisons, juvenile justice, immigration detention and psychiatric facilities. In 2012, the (then) Attorney-General Nicola Roxon stated that the ratification of OPCAT would reinforce that torture is inconsistent with the Government’s responsibility to ‘protect the rights and dignity of all individuals’ and would demonstrate Australia’s commitment to human rights obligations.[123] OPCAT remains unratified.
In addition to the ratification and implementation of legal instruments, positive cultural shifts are required inside facilities that are responsible for the deprivation of liberty. However, cultural change in closed environments is a complex task given their non-public nature and the negative values that commonly arise in such institutions. Stevens interrogates organisational culture as referring to ‘shared assumptions and values that guide behaviour within an organisation’.[124] Closed environments may exhibit a self-referential[125] culture that is ‘closed and uncritical’, dehumanising and violent, and one that reflects the binary opposition of ‘us and them’, institutionalised racism, and a culture of impunity.[126] These closed environments are a function of an increasingly punitive paradigm in which pragmatism is preferred to human rights ideals.
The strength of Human Rights in Closed Environments is in revealing how individuals within closed environments are susceptible to human rights violations due to the non-public nature of these sites and their inherent power imbalances, and the resulting individuals’ own disempowerment and lack of voice.[127] The book does not shirk from exposing the vulnerabilities of detained people. Clearly, punitive forms of detention are intrinsically detrimental to the reform and betterment of those deprived of liberty and, I would argue, to society as a whole. The book comprehensively addresses how societal and cultural discourses impact the operations of closed environments,[128] and how facilities must engage and operate with human rights to ensure public trust, legitimacy, civility, and moral authority.[129] Throughout the various chapters, recommendations are made, with the aim of shifting the paradigm from ‘closed’ to one of greater transparency. Such a shift implicates the physical environments, monitoring policies and accountability procedures, dedicated resources, training and specialised staff, and strong leadership to effect cultural and organisational change.[130]
I argue that cultural shifts implicate the broader society and several questions require further examination. Why should society care to engage with human rights reform in relation to closed environments?[131] Given the prevailing climate of punitivism, is there a way for human rights ideals to be absorbed into society’s consciousness as core values? Articulating answers to these questions involves interrogating the purposes of detention, as well as a profound reflection on the type of society we aspire to inhabit. Without doubt, opening sightlines into these opaque institutions would facilitate a comprehension of how society treats its ‘others’. When the vulnerabilities of detained people are understood, as the book details, perhaps society can reflect on the responsibility to assist, rather than the desire to punish.[132] As Naylor posits in a separate publication, would a more human rights oriented approach to detention be achieved by having ‘a better‐informed and less punitive community’ or ‘a more human rights‐aware community’?[133] Either way, a society may be judged by how its most disadvantaged and despised members are treated: ‘The degree of civilization in a society can be judged by entering its prisons’.[134] Australia currently falls short on empathy and compassion: ‘The practice of locking up children taints all of us and is contrary to those values we admire in the Australian spirit; a generous hearted welcome to those needing our protection and a fair go.’[135] By ignoring the human rights of those in closed environments, by shrouding the treatment of vulnerable people in secrecy, there is a cost to Australia’s international reputation and its democracy.[136] A lack of humanity in closed environments demeans us all.
[∗] Lecturer, Faculty of Law, University of Sydney, Australia; PhD candidate (criminology) (Syd).
[1] Richard Ackland, ‘IHMS Revelations Bolster the Legal and Political Case against the Detention of Asylum Seekers’, The Guardian (online), 23 July 2015 <http://www.theguardian.com/australia-news/2015/jul/23/ihms-revelations-bolster-the-legal-and-political-case-against-the-detention-of-asylum-seekers?CMP=soc_567> .
[2] Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014).
[3] Bronwyn Naylor, ‘Human Rights and Respect in Prisons: The Prisoners’ Perspective’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 84.
[4] Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (Cambridge University Press, 2008).
[5] Stephen Monterosso, ‘Punitive Criminal Justice and Policy in Contemporary Society’ [2009] QUTLawJJl 2; (2009) 9(1) Queensland University of Technology Law and Justice Journal 13; Jonathan Simon, ‘Punishment and the Political Technologies of the Body’ in Jonathan Simon and Richard Sparks (eds) The SAGE Handbook of Punishment and Society (SAGE Publications, 2013) 60.
[6] David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press, 2001) 133; Sonja Snacken, ‘Punishment, Legitimate Policies and Values: Penal Moderation, Dignity and Human Rights’ (2015) 17(3) Punishment & Society 397.
[7] Gabrielle Upton, ‘New Study Shows NSW is Tough on Criminals’ (Media Release of the Attorney-General (NSW), 27 May 2015) <http://www.justice.nsw.gov.au/Documents/Media%20Releases/
2015/MR15%20NEW%20STUDY%20SHOWS%20NSW%20IS%20TOUGH%20ON%20CRIMINALS.pdf>.
[8] Alex Reilly, ‘The Boats May Have Stopped, but at What Cost to Australia?’ The Conversation (online), 28 August 2014 <http://theconversation.com/the-boats-may-have-stopped-but-at-what-cost-to-australia-30455> .
[9] Monterosso, above n 5.
[10] Simon, above n 5; Elizabeth Grant and Yvonne Jewkes. ‘Finally Fit for Purpose The Evolution of Australian Prison Architecture’ (2015) 95(2) The Prison Journal 223; Snacken, above n 6.
[11] Bianca Hall, ‘Minister Wants Boat People Called Illegals’, The Sydney Morning Herald (online), 20 October 2013 <http://www.smh.com.au/federal-politics/political-news/minister-wants-boat-people-called-illegals-20131019-2vtl0.html> .
[12] Snacken, above n 6, 399.
[13] Grant and Jewkes, above n 10, 233.
[14] Zygmunt Bauman, ‘Social Uses of Law and Order’ in David Garland and Richard Sparks (eds), Criminology and Social Theory (Clarendon Studies in Criminology, Oxford University Press, 2000); Linda Mulcahy ‘Putting the Defendant in Their Place: Why Do We Still Use the Dock in Criminal Proceedings?’ (2013) 53(6) British Journal of Criminology 1139.
[15] Monterosso, above n 5.
[16] John Pratt and Thomas McLean, ‘Inspector Wallander’s Angst, Social Change and the Reconfiguration of Swedish Exceptionalism’ (2015) 17(3) Punishment & Society 322;
Jessica Benko, ‘The Radical Humaneness of Norway’s Halden Prison’, The New York Times (online), 26 March 2015 <http://www.nytimes.com/2015/03/29/magazine/the-radical-humaneness-of-norways-halden-prison.html?_r=0> .
[17] Snacken, above n 6.
[18] Benko, above n 16.
[19] Victor Lund Shammas, ‘The Pains of Freedom: Assessing the Ambiguity of Scandinavian Penal Exceptionalism on Norway’s Prison Island’ (2014) 16(1) Punishment & Society 104, 105; Bauman above n 14, 212.
[20] UN Human Rights Committee (HRC), CCPR General Comment No 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 44th sess, HRI/GEN/1/Rev.9 (Vol I) (10 April 1992) <http://www.refworld.org/docid/453883fb11.html> (‘CCPR General Comment No 21’); Anita Mackay, ‘Operationalising Human Rights Law in Australia: Establishing a Human Rights Culture in the New Canberra Prison and Transforming the Culture of Victoria Police’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 261, 277.
[21] Jem Stevens, ‘Changing Cultures in Closed Environments: What Works?’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 228, 238.
[22] Ibid 239.
[23] Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Routledge, 2011); Anne Wallace and Emma Rowden, ‘Gateways to Justice: The Use of Videoconferencing Technology to Take Evidence in Australian Courts’ in Proceedings of the 9th European Conference on e-Government (Academic Conferences and Publishing International, 2009) 653–60.
[24] Bronwyn Naylor, Julie Debeljak and Anita Mackay, ‘Introduction: Implementing Human Rights in Closed Environments’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 1, 2.
[25] Ibid 3.
[26] Opened for signature 4 February 2003 (entered into force on 22 June 2006) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCAT.aspx> .
[27] Opened for signature 10 December 1984 (entered into force on 26 June 1987) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx> .
[28] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> . The ICCPR was ratified by Australia in 1980, but has not been made part of domestic law.
[29] Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) <http://www.un.org/disabilities/convention/conventionfull.shtml> . The CRPD was ratified by Australia in 2008, but existing domestic law falls short of obligations under the Convention.
[30] Naylor, Debeljak and Mackay, above n 24, 3.
[31] Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (Penguin Books, 3rd ed, 2008) 90.
[32] Ibid.
[33] Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); Mackay, above n 20, 261–94; Anita Mackay, ‘Women in Australian Prisons and Why They Need Human Rights Protections’ Regarding Rights (online), 4 October 2013 <http://asiapacific.anu.edu.au/
regarding-rights/2013/10/04/women-in-australian-prisons-and-why-they-need-human-rights-protections/>.
[34] Patsie Frawley and Bronwyn Naylor, ‘Human Rights and People with Disabilities in Closed Environments’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 48, 52, 55.
[35] Bronwyn Naylor, ‘Researching Human Rights in Prisons’ (2015) 4(1) International Journal for Crime, Justice and Social Democracy 79.
[36] Naylor, above n 3, 93.
[37] Naylor, Debeljak and Mackay, above n 24, 3.
[38] Gillian Triggs, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention 2014’ (Speech delivered to mark the tabling in Australian Parliament of the Inquiry Report, 12 February 2015) <https://www.humanrights.gov.au/news/speeches/forgotten-children-national-inquiry-children-immigration-detention-2014>.
[39] Tania Penovic, ‘Privatised Immigration Detention Services: Challenges and Opportunities for Implementing Human Rights’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 10, 46.
[40] Claudio Grossman ‘Implementing Human Rights in Closed Environments through the United Nations Convention against Torture’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 125, 134.
[41] Stevens, above n 21, 253.
[42] Alan Quirk, Paul Lelliott, and Clive Seale, ‘The Permeable Institution: An Ethnographic Study of Three Acute Psychiatric Wards in London’ (2006) 63(8) Social Science & Medicine 2105, 2114.
[43] Naylor, Debeljak and Mackay, above n 24, 1.
[44] Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Anchor Books, 1961) xiii, 7; Stevens, above n 21, 230.
[45] Mackay, above n 20, 277.
[46] Bauman, above n 14, 208.
[47] UNHRC, CCPR General Comment No 21, HRI/GEN/1/Rev.9 (Vol I).
[48] Philip Hancock and Yvonne Jewkes ‘Architectures of Incarceration: The Spatial Pains of Imprisonment’ (2011) 13(5) Punishment & Society 611, 618.
[49] Ben Crewe, The Prisoner Society: Power, Adaptation and Social Life in an English Prison (Clarendon Studies in Criminology, Oxford University Press, 2009).
[50] Michel Foucault, Discipline and Punish: The Birth of the Prison (Vintage Books, 1977) 9.
[51] Ibid.
[52] Judah Schept, ‘“A Lockdown Facility... with the Feel of a Small, Private College”: Liberal Politics, Jail Expansion, and the Carceral Habitus’ (2013) 17(1) Theoretical Criminology 71; Crewe, above n 49, 5.
[53] Keith Farrington, ‘The Modern Prison as Total Institution? Public Perception versus Objective Reality’ (1992) 38(1) Crime & Delinquency 6.
[54] Stevens, above n 21, 236.
[55] See the ‘Secrecy and disclosure provisions’ of the Australian Border Force Act 2015 (Cth) pt 6; Sarah Whyte, ‘Doctors and Teachers Gagged under New Immigration Laws’, The Sydney Morning Herald (online), 4 June 2015 <http://www.smh.com.au/federal-politics/political-news/doctors-and-teachers-gagged-under-new-immigration-laws-20150603-ghft05.html> Greg Barns and George Newhouse, ‘Border Force Act: Detention Secrecy Just Got Worse’, The Drum (ABC) (online),
28 May 2015 <http://www.abc.net.au/news/2015-05-28/barns-newhouse-detention-centre-secrecy-just-got-even-worse/6501086> .
[56] Grossman, above n 40, 125–53.
[57] Stevens, above n 21, 228.
[58] Ibid 231.
[59] Alison Liebling, ‘Moral Performance, Inhuman and Degrading Treatment and Prison Pain’ (2011) 13(5) Punishment and Society 530, 533–4.
[60] Penovic, above n 39.
[61] Ibid 12–13, 18; Ben Butler, ‘Transfield Soars as $1.2b Detention Contract Win Gives Shares $80m Lift’, The Sydney Morning Herald (online), 24 February 2014 <http://www.smh.com.au/business/
transfield-soars-as-12b-detention-contract-win-gives-shares-80m-lift-20140224-33bkf.html>.
[62] Penovic, above n 39, 46.
[63] Anne Owers, ‘Comparative Experiences of Implementing Human Rights in Closed Environments: Monitoring for Rights Protection’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 209.
[64] Frawley and Naylor, above n 34, 48, 70–1.
[65] Ibid 68, 72.
[66] Ibid 82.
[67] Stevens, above n 21, 239.
[68] Naylor, above n 3, 92.
[69] Naylor, above n 35, 81.
[70] Naylor, above n 3, 86.
[71] Owers, above n 63, 209–27.
[72] Ibid 211.
[73] Ibid 215.
[74] Ibid 215–6.
[75] Mackay, above n 20.
[76] Ibid 261.
[77] Ibid 268.
[78] Lorana Bartels, ‘State of Imprisonment: Can ACT Achieve ‘Human Rights’ Prison?’, The Conversation (online), 17 April 2015 <http://theconversation.com/state-of-imprisonment-can-act-achieve-a-human-rights-prison-39119> ACT Auditor-General, The Rehabilitation of Male Detainees at the Alexander Maconochie Centre, Report No 2/2015 <http://www.audit.act.gov.au/
auditreports/reports2015/Report%20No.%202%20of%202015%20The%20Rehabilitation%20of%20male%20detainees%20at%20the%20Alexander%20Maconochie%20Centre.pdf>.
[79] Penovic, above n 39, 46.
[80] Australian Human Rights Commission, Immigration Detention Statistics (30 June 2015) <https://www.humanrights.gov.au/immigration-detention-statistics>:
As a result of Australia’s system of third country processing for asylum seekers who arrived by boat without a visa, as at 30 June 2015 there were:
• 655 asylum seekers (including 88 children) in detention in Nauru;
• 945 adult asylum seekers in detention on Manus Island, Papua New Guinea.
[81] Frawley and Naylor, above n 34.
[82] Ibid 67.
[83] Mackay, above n 20, 273.
[84] Ibid 274.
[85] David C Fathi, ‘The Challenge of Prison Oversight’ (2011) 47(4) American Criminal Law Review 1453.
[86] Naylor, above n 35.
[87] Tony Vinson, Margot Rawsthorne, Adrian Beavis and Matthew Ericson Dropping Off the Edge: The Distribution of Disadvantage in Australia 2015 (Jesuit Social Services/Catholic Social Services Australia, 2015) <http://www.dote.org.au/findings/full-report/> .
[88] Anne Grunseit, Suzie Forell and Emily McCarron, Taking Justice into Custody: The Legal Needs of Prisoners (Law and Justice Foundation of New South Wales, 2008).
[89] Mackay, above n 20, 276.
[90] Foucault, above n 50.
[91] Graeme Orr, ‘Ballotless and Behind Bars: the Denial of the Franchise to Prisoners’ [1998] FedLawRw 3; (1998) 26(1) Federal Law Review 55, 61.
[92] Goffman, above n 44, 14–20.
[93] Grunseit, Forell and McCarron, above n 88, 253–4.
[94] Juliet Ash, Dress behind Bars: Prison Clothing as Criminality (IB Tauris, 2009).
[95] Yvonne Jewkes, ‘Book Review: Dress Behind Bars: Prison Clothing as Criminality by Juliet Ash’ (2010) 6(1) Crime, Media, Culture 118.
[96] Bauman, above n 14, 208.
[97] Penovic, above n 39, 18.
[98] Ibid 17.
[99] Ackland, above n 1.
[100] Penovic, above n 39, 46.
[101] Ibid 47.
[102] Allan Brown, ‘Economic Aspects of Prison Privatisation: The Queensland Experience’ in David Biles and Julia Vernon (eds) Private Sector and Community Involvement in the Criminal Justice System: Proceedings of a Conference Held 30 November–2 December 1992, Wellington, New Zealand (Australian Institute of Criminology, 1994) <http://www.aic.gov.au/media_library/
publications/proceedings/23/brown.pdf>.
[103] Frawley and Naylor, above n 34, 50, 81; CRPD art 12.
[104] Frawley and Naylor, above n 34, 67.
[105] Ibid 70.
[106] Ibid 78.
[107] Ibid 81.
[108] Naylor, above n 3, 96–7.
[109] Ibid 84.
[110] Mackay, above n 20, 277.
[111] Naylor, above n 3, 123.
[112] Owers, above n 63, 222–3.
[113] Ibid.
[114] Ibid 226.
[115] Jessica Kidd, ‘Over-representation of Indigenous Australians in Prison a Catastrophe, Says Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner’ (2014) ABC News (online), 5 December 2014 <http://www.abc.net.au/news/2014-12-04/number-of-indigenous-australians-in-prison-a- ’ catastrophe ’ /5945504> .
[116] Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators (2014) <http://www.pc.gov.au/research/ongoing/overcoming-indigenous-disadvantage/key-indicators-2014> Debra Jopson, ‘Aboriginal Future Locked up by Spiralling Incarceration Figures’, The Saturday Paper (online), 23 May 2015 <https://www.thesaturdaypaper.com.au/news/law-crime/2015/05/23/aboriginal-future-locked-spiralling-incarceration-figures/14323032001910>.
[117] Grossman, above 40, 151.
[118] Ibid.
[119] Ibid 153.
[120] Natalie Pierce, ‘Implementing Human Rights in Closed Environments: The OPCAT Framework and the New Zealand Experience’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 154, 207.
[121] Ibid 204.
[122] Ibid 164, 204–5.
[123] Ibid 165.
[124] Stevens, above n 21, 231.
[125] Owers, above n 63, 213.
[126] Stevens, above n 21, 232–3, 240–43.
[127] Naylor, Debeljak and Mackay, above n 24, 8–9.
[128] Stevens, above n 21, 237.
[129] Penovic, above n 39, 19.
[130] Stevens, above n 21, 252.
[131] Ibid 258; Mackay, above n 20, 281–3.
[132] Bauman, above n 14, 212.
[133] Naylor, above n 35, 91.
[134] Attributed to Fyodor Dostoevsky (1821–81).
[135] Triggs, above n 38.
[136] Reilly, above n 8.
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