A human right to daily access to fresh air beyond prisons in Australia?

ABSTRACTThis article considers the international standard of daily access to fresh air, set out by the Mandela Rules/UN Minimum Rules for the Treatment of Prisoners, and whether it applies beyond prisons in Australia. This standard is part of the obligation to treat all those deprived of their liberty humanely, which is set out in Article 10 of the International Covenant for Civil and Political Rights. The article reveals the extent to which this standard is currently reflected in corrections legislation across Australian jurisdictions. It analyses recent Australian cases/investigations relating to access to fresh air in prison settings, as well as the investigations/inquiries into the treatment of travellers in hotel quarantine and residents of public housing towers as part of government COVID-19 measures. The article draws on international jurisprudence designed to guide Australian lawmakers and policymakers in setting detention conditions. It notes that Australia is commencing a detention monitoring scheme under the Optional Protocol to the Convention against Torture which requires that inspectors use human rights-based standards.KEYWORDS: DetentionMandela Ruleshumane treatmentcruel, inhuman and degrading treatmentfresh airhotel quarantine Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 UN Congress on the Prevention of Crime and the Treatment of Offenders (1st) Standard Minimum Rules for the Treatment of Prisoners UN Doc. A/CONF.6/1 (22 August–3 September 1955), 67. These rules were updated in 2015, which is discussed later in the article.2 During the pandemic, poor ventilation in residential aged care facilities was also raised as a concern. See Geoff Hanmer and Bruce Milthorpe, ‘Poor Ventilation May Be Adding to Nursing Homes’ COVID-19 risks’ The Conversation (Melbourne, 20 August 2020) accessed 27 January, 2023. At various times during the pandemic, all residents of these facilities have arguably been de jure deprived of their liberty due to lockdown laws imposed by state and federal governments. See generally Sara Dehm, Claire Loughnan and Linda Steele, ‘COVID-19 and Sites of Confinement: Public Health, Disposable Lives and Legal Accountability in Immigration detention and Aged Care’ (2021) 44 UNSWLJ 59-102.Where residents in these facilities are under guardianship orders, they are living under de jure detention, while some other residents are de facto detained via the often unlawful use of restraints. Where windows and doors in these facilities are secured, residents with limited mobility and those persons living in locked units are less likely to be able to access fresh air, especially at times of staff shortages. Federal aged care legislation does not regulate indoor air quality in these settings and it does not stipulate that residents enjoy a right to access fresh air. While Standards scheduled to the Aged Care Act 1997 (Cth) regulations articulate that residents enjoy a right ‘to be treated with dignity and respect’, these are clearly non-enforceable rights. Residential aged care is an area of federal regulation and hence secure, locked units can be understood as federal places of detention. See Laura Grenfell, Anita Mackay and Julie Debeljak, ‘Human Rights Accountability for Systems of Ill Treatment in Residential Aged Care’ (2021) 47 Monash University Law Review 57-113; Laura Grenfell, 'Aged Care, Detention and OPCAT' (2019) 25 Australian Journal of Human Rights 248-262.3 See, for example, Transcript of Proceedings, Inquiry into the COVID-19 Hotel Quarantine Program (The Hon. Jennifer Coate AO, Board of Inquiry, Melbourne, 20 August 2020) 151–163 (‘Returned Traveller 1’); 187–206 (Hugh De Kretser); Queensland Human Rights Commission, ‘Family experiences challenges in hotel quarantine’ (Queensland Human Rights Commission, 2020-2021) accessed 27 January 2023; Raffaella Ciccarelli, ‘Father in locked-down tower said children are desperate to get fresh air’ 9 Now (6 July 2020) accessed 27 January 2023; Rachel Eddie, ‘‘I miss fresh air so much’: A Diary of hotel quarantine The Age (11 December 2020), accessed 27 January 2023.4 NSW Ombudsman, 2020 Hindsight: the first 12 months of the COVID-19 pandemic (Report to Parliament, 22 March 2021) 17 (Case Study 2).5 Queensland Human Rights Commission (QHRC) Submission to Parliamentary Committee, Queensland Parliament, Inquiry into the Queensland Government's Health Response to COVID-19 (6 July 2020) [49].6 ibid 28 (Recommendations 2 and 3).7 United Nations, Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), UN Doc A/RES/70/175 (17 December 2015); QHRC, Prisoner Isolation—Unresolved complaint under section 88 Human Rights Act 2019 (2 February 2021).8 International Covenant for Civil and Political Rights (opened for signature 19 December 1966, entered into force 23 March 1976) 999 UNTS 171.9 It is beyond the scope of this article to examine the operation of human rights protections in Australian prisons other than the right to daily access to fresh air. For a detailed discussion of the complexities see Anita Mackay Towards Human Rights in Australian Prisons (ANU Press 2020).10 For detailed discussion of Article 10(1) of the ICCPR see Anita Mackay, ‘Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR) and Australian prisons’ (2017) 23(3) Australian Journal of Human Rights 368.11 This is also prohibited by Article 7 of the ICCPR.12 United Nations Optional Protocol to the Convention against Torture (adopted 18 December 1992, entered into force 22 June 2006) UN Doc A/RES/57/199, art 1.13 United Nations Human Rights Committee (UNHRC), CCPR General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 44th session (10 April 1992) [5].14 UN Committee against Torture, Concluding Observations on the Sixth Periodic Report of Australia, 75th session, UN Doc CAT/C/AUS/CO/6 (5 December 2022) [32].15 Katrin Tiroch, ‘Modernizing the Standard Minimum Rules for the Treatment of Prisoners – A Human Rights Perspective’ in Max Planck Yearbook of United Nations Law, vol 19 (2015) (Brill 2016).16 The Rule numbers differ, however. Current Rule 14 was formerly Rule 11(a) and current Rule 23(1) was formerly Rule 21(1).17 Tiroch (n 15), 281. For a discussion of the Mandela Rules in Australia see Anita Mackay, ‘The Relevance of the United Nations Mandela Rules for Australian Prisons’ (2017) 42(4) Alternative Law Journal 279.18 Association for the Prevention of Torture, ‘The Nelson Mandela Rules: A guide on the way to torture prevention’ (18 July 2019) accessed 27 January 2023.19 See for e.g., Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘SPT’), Report of the Subcommittee on Visit to the United Kingdom of Great Britain and Northern Ireland undertaken from 9 to 18 September 2019: recommendations and observations addressed to the State party, CAT/OP/GBR/ROSP/1 (31 May 2021), 13; SPT, Report of the Subcommittee on Visit to Switzerland undertaken from 27 January to 7 February 2019: recommendations and observations addressed to the State party, CAT/OP/CHE/ROSP/1 (22 March 2021); SPT, Report of the Subcommittee on Visit to Costa Rica undertaken from 3 to 14 March 2019: recommendations and observations addressed to the State party, CAT/OP/CRI/ROSP/1 (6 January 2021).20 World Health Organization, ‘UNODC, WHO, UNAIDS and OHCHR joint statement on COVID-19 in prisons and other closed settings’ (WHO, 13 May 2020) accessed 27 January 2023.21 SPT, Advice of the Subcommittee to States Parties and national preventative mechanisms relating to the coronavirus disease (COVID-19) pandemic, UN Doc CAT/OP/10 (7 April 2020), [9(i)].22 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (Covid-19) pandemic, (20 March 2020) Principle 7.23 This is reflected in the longstanding Standards published by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). See CPT, 2nd General Report on the CPT’s activities, CPT/Inf(92)3 (13 April 1992), ‘Imprisonment’ [48]; CPT, Factsheet: Immigration Detention, CPT/Inf(2017)3 (March 2017) 5; CPT, Juveniles deprived of their liberty under criminal legislation CPT/Inf(2015)1-part rev1 (Extract from the 24th General Report of the CPT, published in 2015) [108].24 The NZ Chief Ombudsman’s Statement of Principles (15 April 2020) was designed to guide detention facilities and their staff in managing the pandemic. The 6th Principle in this Statement spells out rights: ‘the fundamental rights of detained people during the pandemic … includes … the right of daily access to the open air (of at least one hour)’. NZ Chief Ombudsman, Statement of Principles (15 April 2022), accessed 27 January 2023.25 When Australia signs and ratifies a UN treaty it does not become part of national law unless explicitly incorporated: Koowarta v Bjelke-Petersen (1982) 153 CLR 168. There is no national Charter of Human Rights.26 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 22; Human Rights Act 2004 (ACT), s 19 and Human Rights Act 2019 (Qld), s 30.27 Emphasis added. Corrections Act 1986 (Vic), s 47(1)(a) and Corrections Act 1997 (Tas), s 29(1)(a). For a detailed comparison of rights in corrections legislation nationally see Mackay (n 9) 194-201.28 For detailed discussion of the isolation measures used in Queensland prisons see Helen Blaber, Tamara Walsh and Lucy Cornwell, ‘Prisoner isolation and COVID-19 in Queensland’ (2021) 8(2) Griffith Journal of Law and Human Dignity 52.29 QHRC (n 7) [20]-[21].30 ibid [70].31 ibid [98].32 ibid [99].33 ibid [104].34 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; (2021) 367 FLR 193, [1].35 ibid [44].36 ibid [396], [418], [437].37 ibid [386].38 ibid [201]-[226].39 ibid [321].40 ibid [249], [322]. The 2007 Taunoa decision is also referred to at [198] and [229], and the 2004 Taunoa decision at [330]. Taunoa v Attorney-General (2004) 7 HRNZ 379; Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429.41 Mackay (n 9) 202.42 ACT Inspector of Correctional Services, ACT Standards for Adult Correctional Services (Canberra 2019) 48. The Inspector of Correctional Services is an independent statutory agency established pursuant to the Inspector of Correctional Services Act 2017 (ACT) and the Standards were prepared to guide their inspections of the ACT’s adult prison (the Alexander Maconochie Centre).43 ACT Inspector of Correctional Services, Healthy Prison Review of the Alexander Maconochie Centre 2022 (Canberra 2022) 21.44 Human Rights Act 2004 (ACT), s 40C(2).45 Mackay (n 9) 191-192. For a discussion of the challenges bringing human-rights based claims about prison conditions in Victoria see: Julie Debeljak, ‘The Rights of Prisoners Under the Victorian Charter: A Critical Analysis of the Jurisprudence on the Treatment of Prisoners and Conditions of Detention’ (2015) 38(4) University of New South Wales Law Journal 1332.46 Mackay (n 9) 193-94. For discussion of the Queensland decision in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 and further context about human rights prison litigation see Anita Mackay ‘Recent court decisions about the protection of human rights of imprisoned people’ (2022) Australian Journal of Human Rights.47 Following detailed comparison of corrections legislation nationally, Mackay, Bartels and Boland have all argued that the ACT has the most human-rights compliant corrections legislation in Australia: Mackay (n 9) 196; Lorana Bartels and Jeremy Boland, ‘Human Rights and Prison. A Case Study from the Australian Capital Territory’ in Leanne Weber, Elaine Fishwick and Marinella Marmo (eds), The Routledge International Handbook of Criminology and Human Rights (Routledge 2017) 560.48 Matthew Groves, ‘The Second Charters of Prisoners’ Rights’ in Matthew Groves and Colin Campbell (eds), Australian Charters of Rights a Decade On (Federation Press 2017) 194; Mackay (n 9) 198-199.49 See Debeljak (n 45); Mackay (n 9) 93-95; Mackay (n 46) 5-7.50 See (n 2) on residential aged care as a federal place of detention.51 See UNHRC (n 13), [3].52 Emphasis added. ibid, [2].53 Jack Gramenz ‘Coronavirus: Hotel quarantine has no access to fresh air, unlike ‘prison’’ (News.com.au, 23 April 2020) accessed 27 January 2023.54 AAP and Melissa Davey, ‘WA Doctors call for more “humane” quarantine with access to fresh air after woman flees’ (The Guardian, 28 December 2020) accessed 5 April 2023.55 SPT, Advice of the Subcommittee on Prevention of Torture to the National Preventive Mechanism of the United Kingdom of Great Britain and Northern Ireland regarding compulsory quarantine for Coronavirus, 40th session (10-14 February 2020).56 Emphasis added. SPT (n 21) [10(f)].57 A number of reviews of hotel quarantine have taken place at the national and state level. For example, see Tarun Weeramanthri, Review of Western Australia’s Hotel Quarantine Arrangements – Final Advice (12 March 2021) at . This review indicates that a lack of fresh air was a common theme in guest feedback: 7. See also Government of Western Australia, Ventilation Review of Quarantine Hotels (28 April 2021) accessed 4 April 2023. Note that the Northern Territory’s quarantine facility at Howard Springs offered ongoing access to fresh air.58 QHRC Submission (n 5) [37].59 ibid.60 QHRC, Hotel Quarantine – Unresolved complaint report under section 88 Human Rights Act 2019 (15 October 2020).61 ibid [32].62 ibid [35].63 ibid.64 ibid.65 ibid [44-45].66 ibid [43]. This is confirmed by a news article: Lily Nothling ‘Advocates slam Queensland Government’s ‘Unacceptable’ ban on fresh air breaks in hotel quarantine for returning travellers’ (ABC News, 8 December 2020) accessed 27 January 2023.67 Jennifer Coate, Board of Inquiry, COVID-19 Hotel Quarantine Program – Interim Report and Recommendations, PP No 169 (November 2020) [138], 49.68 ibid, [139], 49.69 ibid, 59 (Recommendation 45).70 ibid [139] 49.71 Victorian Government, COVID-19 Hotel Quarantine Inquiry – Government Response to the Final Report (25 March 2020) 4, 20.72 Ombudsman SA, Annual Report 2020–21 (Report, 26 September 2022) 30–31.73 ibid.74 NSW Ombudsman (n 4), 16.75 ibid 17-18.76 ibid 16.77 Consideration of Reports Submitted by State Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee – Australia, 121st sess, UN Doc CCPR/C/AUS/CO/5 (9 November 2017) [37]; UNHRC, Views: Communication No 560/1993, 59th sess, UN Doc CCPR/C/59/D/560/1993 (30 April 1997) (‘A v Australia’ (1997) 4 BHRC 210); UNHRC, Views: Communication No 900/1999, 76th sess, UN Doc CCPR/C/76/D/900/1999 (13 November 2002) (‘Mr C v Australia’); UNHRC, Views: Communication No 1014/2001, 78th sess, UN Doc CCPR/C/78/D/1014/2001 (18 September 2003) (‘Baban v Australia’); UNHRC, Views: Communication No 1069/2002, 79th sess, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003) (‘Bakhtiyari v Australia’); UNHRC, Views: Communication No 1324/2004, 88th sess, UN Doc CCPR/C/88/D/1324 (13 November 2006) (‘Shafiq v Australia’); UNHRC, Views: Communications Nos 1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, 90th sess, UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004 (11 September 2007) (‘Shams v Australia’); UNHRC, Views: Communication No 1442/2005, 97th sess, UN Doc CCPR/C/97/D/1442/2005 (23 November 2009) (‘Kwok v Australia’); UNHRC, Views: Communication No 2094/2011, 108th sess, UN Doc CCPR/C/108/D/2094/2011 (25 July 2013) (‘FKAG et al v Australia’); UNHRC, Views: Communication No 2136/2012, 108th sess, UN Doc CCPR/C/108/D/2136/2012 (25 July 2013) (‘MMM et al v Australia’); UNHRC, Views: Communication 1973/2010, 112th sess, UN Doc CCPR/C/112/D/1973/2010 (26 January 2015) (‘Griffths v Australia’); UNHRC, Views: Communication 2005/2010, 115th sess, UN Doc CCPR/C/115/D/2005/2010 (19 February 2016) (‘Hicks v Australia’); UNHRC, Views: Communication 2233/2013, 116th sess, UN Doc CCPR/C/116/D/2233/2013 (2 May 2016) (‘F J et al v Australia’); UNHRC, Views: Communication 2229/2012, 116th sess, UN Doc CCPR/C/116/D/2229/2012 (17 November 2016) (‘Nasir v Australia’).78 Commonwealth Ombudsman and Australian Human Rights Commission, Joint Statement on the use of Hotels as Alternative Places of Detention (7 October 2022) 1 accessed 27 January 2023. Many detainees were placed in hotel APODs after being medically evacuated from offshore processing detention centres. During inspections carried out in 2019, the Australian Human Rights Commission undertook interviews with people at a Melbourne APOD who raised concerns that ‘they did not get enough fresh air’, that ‘they felt “locked in”’ and ‘were not allowed to open any windows to let in fresh air’: Australian Human Rights Commission, Inspections of Australia’s Immigration Detention Facilities 2019 Report (December 2020) 81 accessed 27 January 2023. On 6 July 2023 the Federal Court handed down a decision about the lawfulness of hotels being used as APODs: Azimitabar v Commonwealth of Australia [2023] FCA 760.79 Commonwealth Ombudsman, Monitoring Immigration Detention 1 July 2020–30 June 2021, 21.80 Commonwealth Ombudsman, Monitoring Immigration Detention: The Ombudsman's Oversight of Immigration Detention 1 July 2020–30 June 2021 [2.254]. See also 20-21.81 Commonwealth Ombudsman, Monitoring Commonwealth Places of Detention: Annual Report of the Commonwealth National Preventive Mechanisms under the Optional Protocol to the Convention against Torture (OPCAT) 1 July 2021–30 June 2022, 23.82 ibid, 24-5.83 Commonwealth Ombudsman, Submission to the Committee Against Torture in its consideration of Australia’s sixth periodic report under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 30 September 2022 [164].84 ibid [161].85 Monitoring Immigration Detention: The Ombudsman's Oversight of Immigration Detention 1 July 2020–30 June 2021 20.86 Commonwealth Ombudsman, Submission to the Committee Against Torture in its consideration of Australia’s sixth periodic report under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 30 September 2022, [146].87 See Commonwealth Ombudsman and Australian Human Rights Commission, Joint Statement on the use of Hotels as Alternative Places of Detention (7 October 2022) 2. The Mandela Rules are explicitly referred to by the Australian Human Rights Commission in its 2023 report: Lorraine Findlay and Steven Caruana, The Use of Hotels as Alternative Places of Detention (June 2023) 30.88 The standards are available at https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/human-rights-standards-immigration-detention.89 Victorian Ombudsman, Investigation into the Detention and Treatment of Public Housing Residents arising from a COVID-19 ‘hard lockdown’ in July 2020 (December 2020) 4.90 ibid, 173, [892].91 ibid 177-179.92 ibid, 18 [71]. See also 80 [367].93 ibid, 173, [893].94 ibid, 173 [894].95 ibid, 108 [547].96 ibid 102.97 ibid 179.98 ibid 223 (Appendix A). The Victorian Ombudsman recommended that the Public Health and Wellbeing Act 2008 (Vic) be amended to include a right to regular and meaningful access to fresh air: Victorian Ombudsman, Ombudsman’s Recommendations – Fourth Report (September 2022) 56. This amendment was not included in the government’s amendments to the legislation in late 2021.99 ibid 4.100 In Davidson (n 34), the ACT Supreme Court notes at [211] that ‘the Victorian Supreme Court has taken the UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) into account when defining the scope of rights in the Victorian Charter: Certain Children at [154]; Certain Children (No 2) at [264]-[265]; De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111 […] at [176]-[178]’.101 NZ Chief Ombudsman’s Statement of Principles (n 24) for all detention facilities and their staff in managing the pandemic. The 6th Principle provides: ‘the fundamental rights of detained people during the pandemic … includes … the right of daily access to the open air (of at least one hour)’.102 The OPCAT requires State Parties to establish National Preventive Mechanisms to ensure ill-treatment is prevented in all places where people are deprived of their liberty: Article 17.103 ACT Prison Standards (n 42), 7.104 ibid, 48.105 Erin Handley, ‘UN Torture prevention body suspends Australia trip citing ‘clear breach’ of OPCAT obligations’, ABC News, 24 October 2022 at ; Tamsin Rose, ‘’UN accuses Australia of ‘clear breach’ of human rights obligations as it suspends tour of detention facilities’, The Guardian 23 October 2022 at .106 Kathryn Armstrong, ‘Australia UN Visit: Torture body cancels inspection over access issues’, 21 February 2023, BBC News. See also Laura Grenfell and Steven Caruana, ‘Are we OPCAT ready? So far, bare bones’ (2022) 47/1 Alternative Law Journal 54–59.107 See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/HumanRightsFramework (access 5 April 2023)108 Australian Human Rights Commission, Free and Equal, Position Paper: A Human Rights Act for Australia (December 2022)109 ibid, 7, 34, 36–39.Additional informationNotes on contributorsLaura GrenfellLaura Grenfell is an Associate Professor of Law at the University of Adelaide. Dr Grenfell’s research focusses on human rights and public law. She has a particular interest in how oversight and scrutiny bodies operate in places where persons may be deprived of their liberty.Anita MackayAnita Mackay is a Senior Lecturer at the La Trobe Law School in Melbourne. Dr Mackay’s research expertise is on how closed environments comply (or fail to comply) with Australia’s international human rights law obligations. In 2020 she published a book entitled Towards Human Rights Compliance in Australian Prisons (ANU Press) that was awarded the 2021 Australian and New Zealand Society of Criminology (ANZSOC) Christine M Alder book award.Meribah RoseMeribah Rose is an Associate Lecturer at the La Trobe Law School in Melbourne. Dr Rose's current research focuses on miscarriages of justice, particularly wrongful convictions, and the procedural hurdles and facilitators to correcting them. She is also interested in mechanisms of accountability for human rights breaches.