4. Human rights and prisons - an overview

A prison sentence deprives a prisoner of his or her right to liberty. It should not deprive a prisoner of other rights. A basic human rights principle is that all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the person. The legal framework that protects the human rights of prisoners is a combination of State and Commonwealth laws based on a number of international human rights instruments Australia has signed, acceded to or ratified.

4.1 Australian law

The Corrective Services Act 2000 (Qld) (CSA)

The purpose of corrective services is set out in section 3 of the CSA. Section 3 states:


(1) The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.

(2) This Act recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender's entitlements, other than those that are necessarily diminished because of imprisonment or another court sentence, should be safeguarded.

(3) This Act also recognises —

(a) the need to respect an offender's dignity; and
(b) the special needs of some offenders by taking into account — (i) an offender's age, gender or race; and (ii) any disability an offender has; and
(c) the culturally specific needs of Aboriginal and Torres Strait Islander offenders.

While some important basic human rights principles are stated in the CSA, including the special needs of women prisoners, the critical issue is whether these principles are recognised and applied in practice on a daily basis by all persons responsible for making policy, devising programs, and administering the prison system. These persons include staff and others who work directly with prisoners and those who supervise or interact with them.

One of the greatest challenges for administrators of any large institutional entity is identifying and eliminating or reducing the impact of systemic and indirect discrimination. Systemic discrimination is the creation, perpetuation or reinforcement of persistent patterns of inequality among disadvantaged groups. It is often the result of seemingly neutral legislation, policies, procedures, practices or organisational structures.[18]

In addition to recognising that every prisoner has basic human entitlements, the CSA also makes review and complaint mechanisms available to prisoners.[19] Some provisions allow for prison visitors and external scrutiny to occur within prisons. [20] The Ombudsman has authority to hear and investigate complaints, and the Prisoners Legal Service and Legal Aid lawyers can be contacted by prisoners. A new Chief Inspector of Prisons has also been appointed by the DCS. [21] While these processes may help individual prisoners deal with specific issues and grievances, they rarely examine the wider components of the prison system, including policies and practices that may result in systemic or indirect discrimination against particular groups within the prison system.

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Laws prohibiting discrimination

Queensland enacted the ADA which, as well as prohibiting discrimination on the basis of sex, race and impairment, also prohibits discrimination on the grounds of religious belief or activity, age, gender identity, and sexuality. The Commonwealth enacted the Sex Discrimination Act 1984, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992, the Age Discrimination Act 2004 and the Human Rights and Equal Opportunity Commission Act 1986. The Commonwealth legislation prohibits discrimination on the basis of a number of attributes including sex, race, disability and age. Women prisoners in Queensland are covered by these laws, although none specifically refers to prisoners or their rights.[22] The international conventions and declarations outlined in 4.2 are the primary basis for the principles contained in State and Commonwealth legislation prohibiting discrimination.

If a woman in prison feels she has been discriminated against on the basis of any of the attributes covered by either State or Commonwealth legislation, she has a right to make a complaint to either the ADCQ (under the ADA) or the Human Rights and Equal Opportunity Commission (under Commonwealth legislation). Once the complaint is accepted under the relevant Act, the respective Commissions will generally conciliate the complaint. If conciliation is unsuccessful, the complainant can proceed to a public hearing before the Queensland Anti–Discrimination Tribunal (under Queensland legislation) or the Federal Magistrates Court (under Commonwealth legislation). If the complainant is successful, the Tribunal or Court can make a range of orders, such as requiring the respondent to refrain from further acts of discrimination, or awarding compensation.[23] While most complaints are made by individuals, a group of prisoners may also make a joint complaint if it covers the same or similar issues.[24]

Apart from dealing with complaints of discrimination made by individual prisoners, the ADCQ and the Human Rights and Equal Opportunity Commission can, in some situations, examine issues of systemic discrimination.[25]

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4.2 International law

An extensive body of international human rights law has led to the development of standards aimed at protecting prisoners from human rights abuses perpetrated by the State. Australia has acceded to a number of these standards and has made commitments to ensure they are observed. Various laws prohibiting discrimination discussed in 4.1 and enacted by the Queensland and Commonwealth governments, fulfil some of the commitments Australia has made to protect human rights.

Australia has agreed to abide by the following instruments:

  • International Covenant on Civil and Political Rights (ICCPR);

  • Article 10 of ICCPR contains a right for all persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person.

  • United Nations Convention AgainstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment(UNCAT).

  • Universal Declaration of Human Rights;

  • International Covenant on Economic, Social and Cultural Rights;

  • International Convention on the Elimination of All Forms of Racial Discrimination;

  • Convention on the Elimination of All Forms of Discrimination against Women;

  • Convention on the Rights of the Child; and,

  • Declaration on the Rights of Disabled Persons.

Another significant international standard is the UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules). These rules though not a legally binding document in Australia, provide clear guidelines for the state and prison authorities on the minimum standards of compliance with international human rights law in Australia. The Standard Minimum Rules have been relied upon to interpret and apply Article 10 of the ICCPR.[26]

Australia has also produced the Standard Guidelines for Corrections in Australia based on the UN Standard Minimum Rules.

The guidelines are not binding on Australian states, but:

are intended to show the spirit in which correctional programs should be administered and the goals towards which administrators should aim.[27]

As Australia has acceded to international standards, it has an obligation to respect them and to ensure they are put into effect. Once all remedies have been exhausted at a domestic level (including the right to make complaints under the Queensland ADA, and the Commonwealth Age, Race, Sex and Disability Discrimination Acts), complainants may take their case to one of the UN human rights committees responsible for the relevant convention or standard.[28]

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18. Such terms or policies may constitute one of the elements of indirect discrimination as defined, see ADA s 11.

19. CSA ss 4, 22, 53(3), 88(4), 109.

20. CSA ss 211 – 216.

21. DCS, See note 4.

22. Except for the Human Rights and Equal Opportunity Act 1986 (Cth) which relates to discrimination on the basis of a person's criminal record. See Human Rights and Equal Opportunity Regulations (Cth) s 4(a)(iii).

23. See ADA s 209.

24. See 'NC' v Queensland Corrective Services Commission [1977] QADT 22 (Unreported, Member Keim, 30 September 1997).

25. ADA s155, 235; Human Rights and Equal Opportunity Commission Act 1986 (Cth) s11; Racial Discrimination Act 1975 (Cth) s 20; Sex Discrimination Act 1984 (Cth) s 48; Disability Discrimination Act 1992(Cth) s 67.

26. See Camille Giffard, 'International Human Rights Law Applicable to Prisoners' in David Brown and Meredith Wilkie (eds),Prisoners as Citizens: Human Rights in Australian Prisons (2002).

27. Standard Guidelines for Corrections in Australia (revised, 2004) 6.

28. Some who have utilized the processes have been critical of their effectiveness, and have concluded that there are limits to the remedies under international law for violations of prisoners' human rights. See Craig Minogue 'An insider's view: human rights and excursions from the flat lands' and John Rynne 'Protection of prisoners' rights in Australian private prisons', in David Brown and Meredith Wilkie (eds) Prisoners as citizens: human rights in Australian prisons (2002).

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