Author: Stephen Heyer

Submission: on the issues for public comment:

9.147 Should a possible Queensland Bill of Rights include any statement of the treatment to which people deprived of their liberty are entitled?

9.148 Should such rights include matters such as the right of remand prisoners to be segregated from convicted prisoners and the rights of imprisoned juveniles to be separated from adults?

9.149 Should any statement of the rights of prisoners include a reference to the aims of the penitentiary system in general?

9.150 In a possible Queensland Bill of Rights, what aims should be spelled out for the penitentiary system?

9.151 Should the United Nations minimum standards for the treatment of prisoners or the Body of Principles for the protection of prisoners be incorporated into a possible Queensland Bill of Rights?

1.00 Questions: Any discussion of prisoners rights raises two questions. The first is why prisoners should have rights. The second is whether their current treatment needs improving.

2.00 Prisoners rights: There are good reasons why prisoners should retain as many rights as practical. Most fundamental is that the recognition of the rights and equality of all people, worthy or not, is inherent to our liberal democracy, and its Judaeo-Christian roots.

2.01 Another is enlightened self interest. Most prisoners will sooner or later be released to share the streets with us. We imprisoned them for misbehaviour, for being dogs that bit, it is hardly sensible to have them turned into rabid wolfs during their time in prison.

2.02 The corrective system must ensure those it releases are safe neighbours, if nothing else. At the moment even the best run prisons seem to do more harm than good.

2.03 Common sense, and the testimony of ex prisoners, suggests that when prisoners are treated too badly, either by the authorities or their fellow prisoners, they become even more socially disfunctional. There is also the question of setting a good example.

2.04 It is pointless to try to teach wrongdoers to respect the rights of others if their experience of the law only demonstrates that it respects their rights as little as they respect their victim's. All that will teach them is that might is right.

2.05 As J. P. Martin maintains: "Prisoners, after all, are connoisseurs at the receiving end of the machinery of justice and what they greatly fear and resent is the arbitrary use of power. It is surely, appropriate that in the ultimate law enforcement institution the rule of law should prevail. The term is used in the wide sense, because what is implied here is the concept of natural justice. This may well be to extend to prisoners standards which they themselves might not apply to others, but the prison should set an example in this respect. The underlying point is that the uneven power relationship between the prison and the inmate imposes a continual moral duty on the powerful to act justly, with due deliberation." (J.P. Martin 1980: 163 from Human Rights Commission "Prisoners' Rights: A Study of Human Rights and Commonwealth Prisoners")

2.06 Then there is the problem of the mental and moral welfare of another group, the prison staff. When boards of inquiry and royal commissions find evidence of "brutal savage and sometimes sadistic physical violence" (Nagle 1978: 108) in some Australian prisons, one has to wonder at the long term effect on the staff who are handing out that treatment.

2.07 A reasonable person would assume that while some normal human rights would be curtailed during imprisonment, for instance freedom of movement, basic rights to life and human dignity would remain. It might even be the expected that some rights would actually increase, as the state had assumed sole responsibility for the prisoners welfare.

2.08 Oddly this is not so. Legal opinion holds that under current law a prisoner has no right to even basic necessities such as food, clothing and medical treatment. Prison rules are usually formatted more in terms of prisoners' duties, rather than rights.

2.09 Of course consideration is paid to the prisoner's welfare in well run prisons, and there are efforts to further improve the situation. One example is the incorporation of principles from the International Covenant on Civil and Political Rights into the Queensland Corrective Services Commission's Policy and Procedures Manual.

2.10 These principles have not however been incorporated into law. Until they are, prisoners have no legal right to their protection. Prisoners are dependent on the good will and efficiency of each changing government, and the administration of each prison.

2.11 The ICCPR principles are fairly modest providing that:

1 All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2(A) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(B) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

3 The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reaffirmation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

2.12 These principles are modest and workable, being no more than the requirements of natural justice. One wonders why they are not already part of Queensland law.

3.00 Prison conditions: There is not much question that our present prisons are less than ideal. Numerous studies have shown deficiencies in administration, buildings and other facilities, and rehabilitation and education programs.

3.01 Victorian era prison reformers saw the ideal prison as a stern but humane place of carefully supervised repentance and education. Sort of a strict boarding school for wayward adults. They intended each inmate to have his own cell, and to spend considerable time alone in that cell reading, studying, and reflecting on the error of his ways.

3.02 Interestingly, American experiments with electronic bracelet supervised home detention schemes suggest that some young offenders do benefit from being forced to spend time alone. The young people themselves claim that they benefit partially from the enforced study and thinking time, and partially from being separated from friends who were a bad influence.

3.03 Perhaps the old Victorian reformers had a point, individual cells are worth the cost. Besides, each AIDS case that does not occur saves a fortune in public monies.

3.04 The problem is that these changes are not cost-free. It is no secret that there are no votes in prison reform, so additional spending on prisons does not fare well at budget time.

3.05 To further complicate matters recessions tend to produce higher crime (and imprisonment) rates. This means that increased demand for prison resources tends to coincide with government budgetary restraints.

4.00 Public attitude: A number of authorities have noted that the most reasonable people will often display extraordinarily harsh attitudes towards the imprisoned. This seems to have little to do with moral righteousness, and often runs directly counter to the community's long term self interest.

4.01 As Supreme Court Judge Sir John Barry maintains in The Courts and Criminal Punishments: "The public image of prison as a place of degradation where it is right and proper that inmates should be repressed and debased is still strong. In the public mind ... a prison is a place where people who have done wicked things are kept apart and held in subjection, so that they will not contaminate law-abiding citizens." (Barry 1969:78)

4.02 The end result is to leave the prisoner friendless and vulnerable. The protection afforded by a bill of rights could go some way to addressing this situation.

5.00 Recommendations: A Queensland bill of rights should guarantee the basic rights to people deprived of their liberty, and set out general aims for the penitentiary system. This should be based on the rights of prisoners as set out by the International Covenant on Civil and Political Rights

5.01 Further, wherever possible non custodial means of correction should be developed and used. For this to be acceptable to the public these alternative means must be seen as being fully credible means of punishment and rehabilitation.

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