The conditions in NT’s Don Dale detention centre portrayed in ABC’s 3 Corners on 25 July should have surprised no-one with any knowledge of Australia’s brutal treatment of its indigenous peoples or any experience of prisons or juvenile detention, whether, directly as an inmate, officer or administrator, or indirectly, through talking to those with direct experience or reading some of their biographies. Even less directly, many of us have acquired a limited sense of these institutions through our exposure to films and TV shows involving prisoners. Few Australians today have any excuse for being shocked or surprised by the program’s revelations. Putting the point another way, while it is easy to be unaware of the details, it would take a real effort not to be aware that unpleasant things don’t just happen but are actively done to people in detention
Even for the blissfully unaware, a moment’s reflection on Lord Acton’s curious, but much-quoted dictum ‘power corrupts and absolute power corrupts absolutely’ – what would it be like to be corrupted absolutely? – would undermine any expectation that all would be well inside Australia’s prisons and detention centres. Prisons are places in which people are subjected to the arbitrary power of officers, administrators, and sometimes other inmates, and detention centres are not much different. Unlike the decision that sends a person to prison or to some but not all detention centres – asylum seekers are not normally sentenced by a judge to serve time on Manus or Nauru: they are sent by administrative decision – punishment within the institution normally involves no judicial process. Punishment is handed out at the discretion of a prison/centre officer or else through some internal administrative process. The sentence to prison/detention not only takes away one’s freedom but it also subjects one to the arbitrary power of others.
To say that power within the institution is ‘arbitrary’ is to say only that it is not much constrained by law, not that it operates without constraint. Prison reform movements have made valiant efforts to introduce greater transparency and improved supervision into detention regimes through, for example, additional staff, improved staff training, CCTV, time-consuming reporting protocols – requiring, for example, that every incident of violence involving a prisoner has to be extensively documented and that there should be a backup/observer for every approach to a prisoner – and hierarchies of authority and responsibility among officers (and sometimes among inmates).
Unfortunately, none of these measures guarantee a more humane outcome. Increasing staff numbers may lead to the intensification of an already brutal custodial regime, while staff training may be viewed by its recipients as initiation, punishment or a break from the pressures of work and thus make little difference to their work practices. As for CCTV, inmates and staff alike seek out ways to minimise the risk of being caught on camera (sometimes it will be the officers’ duty to switch cameras on and all too easy for them to fail to do so). Other controls over the conduct of custodial officers and inmates are limited in their own ways
My point is not that moderately humane custodial regimes cannot be implemented in prisons and detention centres. They can – as several European jurisdictions have shown – but often at great cost. Humanitarian efforts at reform are in danger of running up against countervailing efforts to run prisons/detention centres as cheaply as possible, or even at a profit, and political campaigns for being tough on crime and against anything that could be portrayed as giving too much – or, indeed, any – comfort to prisoners or detainees.
However, if events at Don Dale can be fitted into a standard ‘what do you expect prisons to do?’ narrative, they can also be viewed through narratives of the peculiarity of Australia’s NT, which employs more custodial staff per 100 people in custody and has a higher rate of recidivism than other Australian jurisdictions, not to mention the narrative of a more than 200 plus-year history of invaders violence against Australia’s indigenous peoples.
While these narratives can work together in certain respects – presenting Don Dale as a case of imprisonment made worse by NT violence against indigenous peoples; or as a case of violence against indigenous people made worse by happening in both the NT and a juvenile prison… – they also cut across each other. If Don Dale is just another case of incarceration gone feral, then the facts that the victims were indigenous kids in the NT was just an unfortunate accident; if it was just another case of NT whitefella violence, what happened in Don Dale is no reason to worry about detention centres elsewhere in Australia, although it is a reason to ask why the proportion of indigenous detainees/prisoners is so high. True to form, The Australian, August 2, p.12, carried an article putting the high rate of juvenile indigenous incarceration down to ‘parenting deficiency’ and a cartoon making the same point two days later. This amounts to saying that if only indigenous parents would control their kids, fewer of them would be picked up by the cops.
I suggested earlier that few Australians today have any excuse for being shocked or surprised by the 4Corners’ revelations. In particular, it is hard to imagine that senior NT justices, while having no detailed knowledge of particular cases, would have had no sense that they were sentencing people to more than mere detention but also to dangerous and oppressive conditions.
If there is no reason for Australians to be surprised, or even shocked, the widespread profession of surprise and/or shock clearly deserves further attention. Among the most prominent of the surprised/shocked were several senior Commonwealth politicians and the NT Chief Minister, Adam Giles, and Corrections Minister, John Elferink. Many of those who expressed surprise also professed ignorance.
Some of the latter were clearly lying, but the broader profession of ignorance is worth further exploration. Having promoted NT legislation authorizing use of the restraint chair, the two Ministers must have known that it would be used, if only so staff could check it out, even if they did not know the exact circumstances of its use. There is a difference between knowing that something was bound to happen and knowing when and where it has. Moreover, while it became clear that both Ministers had viewed the 4 Corners footage, both claimed wrongly that they had not. I’ll come back to this point.
We can get a handle on what’s going on when our political leaders deny what, in some sense, they clearly know, assuming that not all of them are lying, by examining elements of the imaginary contract between the people and their rulers that colours the political rhetoric of Australia and other Western democracies. I use the term ‘imaginary’ because relations between the people and their political leaders are hardly contractual. Weber points out that while leaders of democratic regimes often like to present themselves as servants of the people, this should not obscure the fact of domination.
The elements of the imaginary contract that interest me here are, in effect, unrealistic assumptions about the workings of representative government. To say that these assumptions are elements of an imaginary contract is not to say that they are accepted by many or even by most people most of the time. The point is simply that there are important contexts in which people think and act as if they accepted these assumptions. Onr further point, just to be clear, my aim in what follows is not to excuse NT Ministers, or anyone else. It is simply to try to make sense of what may have been going on in their minds.
I can bring out the assumptions I have in mind here by turning to Max Weber’s discussion of the nexus between politics and violence in a lecture – ‘The Profession and Vocation of Politics'(translated in Lassman & Spiers (eds.) Weber: Political Writings) – delivered to students during the short-lived German revolution of 1918/9. Weber argues that political leaders – he means those who are, or who aspire to become, responsible for the government of states – should face up to the fact that there are inescapable psychic stresses involved in assuming responsibility for the exercise of violence. Since, in his view, the legitimate use of force is what distinguishes states from other associations, political leaders will find it hard to avoid responsibility for violence. Weber’s focus on violence in this lecture may have been a reflection of the context in which he spoke, but we can generalise his point to refer not only to violence but also to ethically dubious conduct of any kind: we expect political leaders to do things that many of us find unconscionable. We can also take Weber’s point in a direction he himself does not pursue by saying that, within many contemporary states – those we call ‘democracies’ – citizens elect governments to take responsibility for many tasks they are unable or unwilling to do for themselves, including ethically questionable conduct. Political leaders are appointed to do things that many of us find distasteful.
We are vaguely aware of what we expect them to do but in practice we prefer not to know: we expect detention to be moderately brutal, but we don’t need to acknowledge the detail. The leader’s responsibility is thus not only to handle distasteful responsibilities in our name but also to protect us from knowledge of what they actually do. We expect them to lie to us, not only to save their own skins but also to protect our peace of mind – and in this last case, not to get caught out.
While voters prefer to outsource ethically dubious decisions to political leaders, leaders in turn pass whatever they can on to professionals – individuals, government departments or private contractors of the kind that manage so many US prisons and Australia’s immigration detention centres. Just as leaders are expected to protect us from acknowledging what we prefer not to know, so these professionals bear similar expectations in their relations with political leaders. Thus, when the Hon Nigel Scullion, Federal Minister for Indigenous Affairs, asserted that the Don Dale material did not pique his interest, he may have intended no more than that he just saw business as usual and felt no need to formally acknowledge this material as something that required his action. There was a sense in which he knew but, at this stage, he could still feel protected from this knowledge and thus feel that, in another sense of the term, he did not have to know.
Similarly with Giles and Elferink until they were let down by their paid professionals whose role, inter alia, was to protect their Ministers from having to know the distasteful things for which they were ultimately responsible. The Ministers’ role, in turn, was to protect the people of the NT and other Australians from this knowledge. At least part of the public outrage about Don Dale – and Australia’s immigration detention – arises, I suspect, from the relevant Ministers’ and officials’ betrayal of their responsibilities under this imaginary contract, from their failure to protect the rest of us from having to know and thus to acknowledge our own responsibility.