Detention and the treatment of prisoners

The right to liberty is not absolute and persons found guilty of serious crimes can properly be deprived of their liberty. But this should only happen after a fair trial and subject to proper sentencing principles, involving an exercise of discretion to take account of all the circumstances of both the offence and the offender, including mitigating factors. Mandatory sentencing is contrary to these principles. All persons deprived of their liberty, even those guilty of the most serious offences, are entitled to humane treatment and to be treated with dignity and respect. Article 10 of the ICCPR recognises this right. Despite being a signatory to the ICCPR and endorsing the UN Standard Minimum Rules for the Treatment of Prisoners, Australia has no enforceable standards for its treatment of prisoners. State and Territory governments are responsible for running prisons in Australia. In Victoria, section 11 of the Charter of Human Rights and Responsibilities protects persons against forced labour while section 22 requires the humane treatment of those in detention. Where imposed, the conditions of imprisonment should uphold the human dignity of the prisoner. Prison should be the last resort in the sentencing process. Imprisonment is a traumatic and usually life changing event. It has particularly detrimental consequences for indigenous persons, who continue to be imprisoned in disproportionately high numbers. Specifically, imprisonment damages prisoners and the community because it:

• disrupts families,
• risks corrupting prisoners by contact with more experienced criminals,
• compromises the prisoner’s employment prospects;
• makes rehabilitation more difficult as the reintegration of released prisoners into the community poses severe problems;
• damages the mental and physical health of prisoners and their families;
• deprives the community of the positive contribution the prisoner may have made had he or she remained free;
• increases the risk of further offending; and
• is financially very expensive.

Despite overwhelming evidence to the contrary, there remains a public perception that imprisonment is an effective mechanism for punishing and rehabilitating offenders. In an apparent effort to appease that perception, Australia continues to imprison offenders rather than address the underlying causes of their offending behaviour. Although section 22 of the Charter protects the right of all persons to humane treatment when deprived of liberty, there are many conditions imposed on prisoners which may infringe this right. For instance:

• unjustifiably harsh conditions such as shackling, strip searching, solitary confinement, unduly onerous restrictions on meeting with families, and restrictions on meeting with lawyers;
• failure by the courts and other independent bodies to adequately supervise the treatment of prisoners;
• undue weight being given to private prison operators’ interests, or to industrial relations considerations;
• siting of prisons in inaccessible locations;
• blanket rules in relation to prisoners held for certain offences, despite their individual needs, circumstances, or risk profile; and
• failure to provide an environment where families can regularly visit and maintain appropriate relationships to aid reintegration into the community.

In addition, the indefinite detention of those not convicted or even accused of any offence, such as asylum seekers, cannot be justified. The right to humane treatment while being deprived of liberty and the right to freedom from forced work or labour are associated with the right to liberty.