Melanie Schleiger Australia’s prisons suffer from chronic overcrowding and a lack of basic health services. There are prisoners in Tasmania who are not getting three square meals a day. The Queensland Parliament is considering a Bill that makes it even harder for prisoners to complain about sexual harassment, vilification and discrimination, and Victoria has just passed legislation that further decreases prison accountability. If I were Attorney-General, I would meet with my State and Territory counterparts and the Ministers for Corrections and ask them why our regard for the human rights of prisoners has plunged so low?
Following this discussion, I would seriously reconsider the appropriateness of engaging private business to operate our State prison services and conduct an immediate inquiry into this issue. I would then overhaul the current system of prison accountability, implementing a scheme of regular independent inspections, public reporting and monitoring of prison conditions and management. I would also consider alternatives to detention, such as restorative justice and therapeutic jurisprudence.
However, on the top of my list of things to do would be to immediately repeal the Corrections Amendment Act 2008 (Vic), which denies justice to prisoners who have been abused or wrongfully treated and does nothing to benefit the victims of crime that it claims to assist. I would then breathe a sigh of relief that this abominable law lasted only two weeks (having been passed by the Victorian government on 12 September 2008).
Under the Act any compensation paid to prisoners by the State or private prison operators is quarantined for at least twelve months and publicised in newspapers and on the internet, purportedly for the benefit of victims with potential claims against the prisoner. This perversely links a victim’s chances of obtaining compensation to the wrongful treatment of their offender. The victim must rely, first, on their abuser being abused in turn and, second, on the prisoner making a claim for compensation that they are unlikely to ever receive.
The Act will result in various human rights breaches, including invasion of privacy, increased litigation costs, and the indignity of having the perpetrator of a wrong confiscate what they have been ordered to pay as recompense. This will deter prisoners from pursuing damages, irrespective of how badly they have been treated. Women prisoners sexually assaulted by prison guards, prisoners denied medical care, prisoners bashed and abused in circumstances that could have been prevented and others are unlikely to pursue a claim knowing that any compensation will compulsorily be taken from them and advertised in a newspaper.
This compounds the multiple and interrelated forms of serious disadvantage already faced by approximately half of Victorian prisoners in custody, including major mental illness, trauma from childhood sexual abuse, homelessness and unemployment, as well as illiteracy and a lack of education.
Worse still, by deterring compensation claims, the Act makes our prisons and prison officers even less accountable. This is of particular concern given reports by the Victorian Ombudsman indicating that complaints about Victoria’s private prisons have increased by as much as 400% in the past two years, and some prisons are ‘not fit for human habitation’. In February this year, Professor Richard Harding described the current system of monitoring abuse and corruption in Victoria’s jails as ‘well short of what a democratic society is entitled to.’
Currently, civil law remedies that are available to prisoners, such as remedies under anti-discrimination legislation, provide the only independent and publicly transparent examination of prison practices. This public scrutiny is vitally important given that prisons are custodial institutions shielded from public view, with potential victims who face multiple barriers to accessing justice. It is therefore essential to not only repeal the Act, but also to strengthen the powers of the Ombudsman or establish an independent prison watchdog with powers to release detailed public reports about prison conditions and management.
It is equally essential that specialised legal services for prisoners receive further funding. Prisoners have complex legal needs, so access to specialised legal services is imperative. A recent report by the Law and Justice Foundation of NSW noted that a lack of resourcing resulted in each inmate having only five or 10 minutes to discuss their case with the visiting legal advice service. So I would increase funding to those services and ensure that prison policies do not unnecessarily hinder access to legal resources and advice. Alternative methods of providing access to community legal services should also be considered, such as through video conferencing facilities.
Human rights belong to us by virtue of our humanity and are not forfeited on entering jail. As the New Zealand Human Rights Commissioner Rosslyn Noonan says, ‘People are sent to prison as punishment not for punishment. Their punishment is the deprivation of liberty and they should not be subjected to behaviour that would be criminal outside a prison.’
Melanie Schleiger is on secondment to the Human Rights Law Resource Centre from Lander & Rogers. The views expressed in this article do not necessarily represent the views of the firm.