Prerequisites for achieving international human rights law compliance in Australian prisons

Abstract

Australia has numerous international human rights law obligations that apply to imprisonment. This thesis uses the Republican Theory of Criminal Justice to connect these requirements with the criminal justice system and formulates six prerequisites for achieving human rights compliance in Australian prisons. They are: 1. Minimal use of imprisonment in accordance with the principle of parsimony in the Republican Theory of Criminal Justice; 2.A human rights legal and regulatory framework because the human rights treaties require domestic incorporation of the rights contained therein; 3. Prioritising rehabilitation and restoration because Article 10(3) of the International Covenant on Civil and Political Rights (‘ICCPR’) requires the ‘essential aim’ of prison systems to be ‘reformation and social rehabilitation’; 4. Staff duty to treat imprisoned people with respect in order to comply with the Article 10(1) ICCPR requirement that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’; 5. Decent physical conditions to avoid ‘cruel, inhuman or degrading treatment or punishment’ as prohibited by a number of treaties, and ensure humane treatment as required by Article 10(1) of the ICCRP; and 6. Independent external monitoring stemming from the international legal requirement for a comprehensive system for inspection of places of detention for the purposes of preventing ‘torture and other cruel, inhuman or degrading treatment or punishment’, particularly under the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (‘OPCAT’). The thesis demonstrates that Australia fails to meet any of these prerequisites and, in each case, identifies a country that provides an example of compliance. In many cases the examples of best practice are from the Nordic region. However, the experience of Belgium and the United Kingdom is also relied upon. The use of examples allows the thesis to: (1) assess whether compliance with the particular prerequisite does, in reality, make a difference to prison operations; (2) demonstrate that the prerequisites identified are neither merely theoretical, nor unattainable in practice; and (3) identify specific practices Australia may draw on in seeking to achieve compliance with the prerequisites. This thesis focuses on proactive, rather than reactive mechanisms for protecting the rights of imprisoned people. Existing literature tends to examine case law concerning situations where States have violated their international human rights law obligations to imprisoned people. This thesis, however, starts from a more proactive stand-point. It evaluates what ought to be done to comply with international human rights law obligations, and identifies proactive steps that should be taken to prevent human rights violations from occurring. The thesis makes an original contribution to the understanding of the application of international human rights law in Australian prisons by formulating the prerequisites, identifying examples of best practice in relation to each, and highlighting specific strategies for reforming Australian prisons towards achieving compliance. The statistics, legislation, case law and government reports cited in this thesis are up to date as at 30 July 2014.