Prisoner rights

Contributed by AndrewRobson and current to 27 July 2018

Overview

The Prisons Act 1981 and the Prison Regulations 1982 contain several provisions dealing with the treatment and management of prisoners. In addition, policy directives of the Department cover areas dealing with procedural and administrative matters and welfare issues. Areas covered by the policy directives include search procedures, attendance at funerals, access to information and dietary and nutritional requirements.

Such provisions and the matters detailed in the following section do not, however, give rise to enforceable rights, as confirmed by the High Court in Flynn v R [1949] HCA 38; (1949) 79 CLR 1. This position is explained partly by policy reasons to prevent applications to the courts by prisoners for legal remedies in the event of inadequate management.

The International Covenant on Civil and Political Rights (“the ICCPR”), ratified by Australia in 1980, is the main international statement of prisoners’ human rights, contained in Article 7 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) and Article 10 (All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person).

Complaints by individual prisoners can, in theory, be made to the UN Human Rights Committee pursuant to the ICCPR’s First Optional Protocol (1991); however, the ICCPR is otherwise not enforceable in Australian domestic courts: see box below.

Similarly, the UN Standard Minimum Rules for the Treatment of Prisoners 1957 and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by UN General Assembly in 1988, are not legally binding. Nor are the Standard Guidelines for Corrections in Australia adopted in 1996.

The only enforceable statutory rights are those relating to discrimination under federal anti-discrimination legislation and the Equal Opportunity Act 1984 (WA).

Enforceability of prisoners' rights under international law in Australian courts

A Victorian prisoner argued that his rights were being breached by provision of a deficient vegetarian diet. One of his arguments was based on Article 10(1) of the ICCPR. The Federal Court held that neither it nor the High Court had jurisdiction to hear the case because Australia’s ratification of the ICCPR does not give rise to individually enforceable rights: inclusion of the ICCPR as a schedule to the Human Rights and Equal Opportunity Commission Act 1986 does not constitute incorporation into Australian law: Minogue v Williams [1999] FCA 1585 (confirmed on appeal in Minogue v Williams [2000] FCA 125).

Safe environment

Prisoners have the right to expect to be safe and properly treated in prison. They should not be subjected to torture or cruel, inhumane or degrading treatment or punishment.

Protection

If a prisoner considers he or she needs protection in prison he or she should tell a prison officer or the Superintendent as soon as possible after being received into a prison.

Complaints

Prisoners have the right to complain if their rights have been denied. They must be given access to the proper channels of complaint. The potential avenues of complaint are set out below.

Religion

Prisoners may practice a religion or spiritual belief they hold. They are entitled to engage in practices in observance of their religious or spiritual beliefs. They can also receive religious or spiritual guidance and visits for that purpose, from a person approved by the chief executive officer, being a recognised religious or spiritual adviser or another responsible person with similar religious or spiritual beliefs to those of the prisoner. These rights are subject only to any restrictions that the chief executive officer imposes for the security, good order, and management of the prison (s. 95E Prisons Act).

Telephone calls

Prisoners have the right to one free phone call within twenty-four hours of entering prison. After the first phone call generally, prisoners will have to pay for their own phone calls. Like the number of visits they can have, the number of telephone calls that someone in prison can make depends on their classification and their security rating. Correctional officers will monitor the calls made by people in prison.

Sending and receiving letters

People in prison can send and receive letters; however, most mail that is sent or received by a person in prison will be inspected. The Manager of each prison also has the power to keep anything that comes in the post for someone in prison if they believe that it should not be received. If the Manager does this then the person whom it was sent to should be told that it has come but that it is not going to be given to them.

Section 67 of the Prisons Act provides that any letter written by a prisoner to the Minister, the Chief Executive Officer, the Parliamentary Commissioner for Administrative Investigations, the Ombudsman or the Inspector of Custodial Services is not to be read by the Superintendent.

If a person in prison wants to send a legal letter they should tell a correctional officer and they should then be allowed to put it in the envelope without the officer reading it. The letter should be sealed and marked as legal correspondence.

The UN Standard Minimum Rules for the Treatment of Prisoners also provide people in prison rights to communicate confidentially with human rights organisations. However, as noted above, these provisions do not create legally enforceable obligations.

Medical treatment

All prisons have medical officers (doctors) appointed to them and each prison has nursing facilities. All prisoners on reception to a prison must be examined by a medical officer as soon as is practicable (Prisons Act ss. 95A, 95B)

The Department is responsible for the medical care and treatment of all prisoners and covers all medical cost while the person is in prison. If the prisoner requires urgent medical treatment or treatment which cannot be given at the prison infirmary or first aid room the Superintendent must ensure that the prisoner is taken to a hospital or other medical facility to receive treatment.

Rights and Obligations

Work and gratuities

Except for remand prisoners, all prisoners are required to work while in prison. All work performed by a prisoner is classified as level 1 (the most skilled) to level 5 (the least skilled). Prisoners are allocated levels of work to perform and are credited gratuities accordingly. A gratuity is a nominal payment for work done but is not actual money. If a prisoner refuses to work, he or she may be charged with a prison offence and in addition will not be credited with gratuities. Prisoners undergoing punishment, whether in their cell or a punishment cell, are also not credited with gratuities. If a prisoner is sick, he or she will still be credited with the same rate of gratuities. Prisoners serving a sentence at a lock-up are not credited with gratuities.

Expenditure of gratuities or private accounts

The Superintendent may authorise a prisoner to spend amounts credited to the prison’s gratuity account. There are restrictions on the amount of cash that can be received at a prison on behalf of a prisoner.

Workers' compensation

A prisoner is not a worker for the purposes of workers’ compensation legislation and is not entitled to make a claim under that legislation for any injury suffered while working as a prisoner. If a prisoner was on workers’ compensation payment before being sent to prison, then the payments cease for the time that the person is a prisoner.

Voting rights

If a prisoner is sentenced to imprisonment for more than a year, is convicted of treason, is serving an indeterminate sentence or is a habitual criminal, he or she is not entitled to vote in a state election. If the prisoner is serving a sentence of longer than 5 years he or she is not entitled to vote in a Commonwealth election. Voting is usually by post but the Department and the Electoral Office sometimes arrange mobile voting booths at the prisons.

Right to bring civil claims

There is no legal restriction on a prisoner to maintain civil claims such as for negligence, property damage, breach of contract etc.; however, a prisoner is not permitted to carry on a business while in prison.

The right to attend their own court hearings

Prisoners may be brought up to appear in court by the issue of a Bringing Up Order. A letter must be written to the relevant Court or Tribunal requesting the Bringing Up Order.

Visits and Contact

Lawyers

People in prison have the right to visits with their lawyer; however, this will be during specified hours set by the prison (Prisons Act s.62). These visits may be held in an area where prison officers cannot hear but can observe conversations.

Legal Aid visits each of the main metropolitan prisons each week. Other prisons are visited upon request. If a prisoner wants to see Legal Aid they should ask the senior officer in their unit to make an appointment for them by having their name written into the Legal Aid Visits Book.

Police

There are some cases where police may attend the prison at any time to see someone. However, people in prison may refuse to see a police officer or may refuse to participate in an interview, like any other citizen.

Official visitors

The State and Commonwealth Ombudsmen and consular representatives may visit prisoners. In addition, the Chief Executive Officer may permit any official person, or any person who has a bona fide reason, to visit a prisoner. If a prisoner receives a visit under these provisions it does not affect the total number of visits he or she can receive from friends and family (ss 61, 64, 65 Prisons Act).

Relatives and friends

The Manager of each prison has the power to establish the rules for visits at that prison. Friends and relatives should contact the prison and find out what the rules are about visits at that prison and check the times when they are able to go to the prison for visits. A person’s rights to visiting times will depend on their classification and their security rating.

Visitors to prisons should be aware that:

• On arrival at the prison, they will be asked to sign a declaration outlining their identity and correct address, their friendship or relationship with the prisoner and the purpose of their visit;
• Anyone, including children and babies, may be searched before being granted entry to the prison. There are four kinds of searches – visual; electronic scanning or detecting; rub-down search or strip search;
• Drug detector dogs operate in prisons;
• Video cameras operate in all prisons and a person will be filmed during their visit;
• Any person caught trying to bring a banned substance or item into a prison may be charged and may be refused entry on future visits to the prison.

Aboriginal Visitors Scheme

The Scheme was established in 1988 in response to a recommendation of the Interim Inquiry into Aboriginal Deaths in Custody. The scheme provides support and counselling for Aboriginal detainees and prisoners in police lock-ups, prisons and juvenile detention centres throughout Western Australia. Visitors are Aboriginal people who are employed on a part-time, rostered basis but are available always to help those in custody.