Law Week Shareable

COVID-19 -versus- Human Rights

18-24 May is Law Week, and this year the Human Rights Act 2019 is in the spotlight.

As a correctional agency, Queensland Corrective Services is tasked by the community with the humane containment and supervision of prisoners and offenders. There is a strong expectation that we do our vital work while protecting the safety, dignity and respect of those in our care.

There has been a recent focus on new legislation to ensure the human rights of all individuals with the introduction or adoption of a number significant pieces of legislation such as the Human Rights Act 2019 (Qld) and the United Nations protocols (OPCAT) which guide the way that we operate.

These are worthy and important principles, and every day our officers make thousands of decisions, large and small, that take into consideration the rights of the individual to the greatest possible extent.

The reality of operating in a prison environment however is that a number of factors, including the built environment and the extent of the prison population impact on our operations, requiring us to balance the good of the many with the rights of an individual.

An obvious example of this is the management of extremely dangerous prisoners who have a repeated history of attacking officers, visitors or other prisoners. In the constraints of the prison environment, our overriding obligation is to ensure the safety and security of everyone present.

This may mean that the rights of the most dangerous prisoners are curtailed for a time, by their placement in a Maximum Security Unit or Detention Unit for instance, to ensure the rights of the majority can be protected, our officers have a safe workplace, and visitors and prisoners can be safe in our facilities.

Right now, we, and every other correctional agency in the world is grappling with COVID-19.

Having seen the terrible outcomes in other countries, with up to 90% of prisoners in some prisons testing positive, and multiple deaths amongst both prisoners and prison officers, correctional jurisdictions in Australia have taken significant steps to try to prevent the introduction of COVID-19 into prisons.

The nature of prisons makes social distancing all but impossible, and the incarcerated population internationally has significantly poorer health indicators than the general population.

The reality is the virus cares not for an individual’s rights. International experience has shown it discriminates against the aged, the infirmed, and those from certain cultural backgrounds. It particularly discriminates against those in prison and, sadly, nursing homes. There is still a lot about this disease we don’t know and there is no remedy in sight.

This virus has thrown up unprecedented challenges and tragedies internationally, and we would be remiss at best and grossly negligent at worst if we did not do everything in our power to prevent it impacting on those in our care.

Prisons are cloistered environments, and the two obvious vectors for the introduction of the virus are our staff and visitors to our centres, and new reception prisoners, who are coming in from the community.

Working in concert with our stakeholders at Queensland Health, who are the lead agency in Queensland’s pandemic response, we have worked hard to put in place effective barrier controls, while balancing the rights of everyone involved.

We have made difficult decisions around the operation of our prisons, including the cancellation of visits to centres, and the introduction of daily screening and temperature checking of officer and all essential workers who enter.

Additionally, we have introduced a 14-day isolation period for new receptions into our centres, as they are the other significant vector to introduce COVID-19 into our centres.

This period is in line with the quarantine period in place in the community for people who travel across the Queensland border, or who return from overseas, and was introduced on the advice of Queensland Health and the Chief Health Officer.

Present advice is that even if individuals are tested for the illness, unless they are symptomatic at the time, the test will not pick up that they are contagious. Even after testing negative, they could be circulating in a prison population for two weeks before they become symptomatic, infecting other prisoners, and putting many lives at risk. I note the comments of Australia’s Chief Medical Officer earlier this week that ‘you can’t test your way out of quarantine.’

There have been concerns raised about how this isolation period fits with our commitment to the Human Rights Act.

We do everything we can to keep these prisoners connected to their family and legal representation through access to phones, video calls, and mail. We provide them with meaningful activities and access to health care and other support services.

When we are are advised by our Health colleagues that there is a better way to protect all of those in our custody, then we will act accordingly.  We are already planning on recovery from this pandemic, in line with the easing of community restrictions.

We have a duty to protect the lives and wellbeing of our officers and the nearly 9000 prisoners in our care. In these unprecedented times, that means that a small number of individuals will be impacted in order to protect the majority.

QCS believes that Human Rights matter.