Prisoners’ Rights and Public Perception
The article Prisoners’ Rights and Public Perception is written by Bill Doogue, Director, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.
Bill is a partner at and directs the operations of Doogue + George. He has been an accredited criminal law specialist ever since 1998 and has over 29 years of experience in criminal defence.
Over the years, Bill's legal expertise has allowed the firm to represent numerous clients - including high ranking church officials, state and federal politicians, as well as huge corporations which sometimes involve foreign jurisdictions. His excellence in the field earned him a Law Institute of Victoria Service Award in 2013 and the title of Preeminent Criminal Defence Lawyer in the Doyle’s Guide 2020.
Liberty is one of the most basic of human rights, yet this is the first human right stripped from a person who has been sentenced to a term of imprisonment.
The next human rights to be taken from a prisoner are dignity and respect.
In 1948, the General Assembly of the United Nations brought to the world what is known as ‘The Declaration of Human Rights’ (UDHR), which totalled 30 human rights, for every person on earth.
Today, those same rights are still part of ‘International Human Rights Law’.
In that year, 50 nations collaborated to make a list for all people, which included all people who were denied of their liberty, including prisoners who had committed crimes against society.
The Charter of Human Rights and Responsibilities Act 2006 is a Victorian law that sets out the protected rights of all people in Victoria.
Certain human rights are bestowed on inmates, by virtue of the Charter, and include section 10 – “protection from torture and cruel, inhuman or degrading treatment” and section 22 – “humane treatment when deprived of liberty”.
Studies over several decades in Australia, United Kingdom, United States of America and Canada, amongst others, generally conclude that prisoners, despite theoretically having a number of rights, are “socially or politically rightless, or close to rightlessness”. (A Study of Human Rights and Commonwealth Prisoners – Gordon Hawkins, author)
As far back as 1980, the Australian Law Reform said:
“Under section 44 of the Australian Constitution, a person who has been convicted and is under sentence for any offence punishable under the law of the Commonwealth or of a State by imprisonment of one year or longer, is incapable of being chosen or sitting as a senator or member of the House of Representatives. A person convicted of an offence punishable by one year’s imprisonment or more loses his right to vote while serving the sentence.
Conviction for any crime can also disqualify a person from jury service, lead to loss of various licences, bar admission to some professions, result in dismissal or loss of eligibility for employment and public office, restrict overseas travel or lead in some cases to deportation.”
Apart from some prisoners now being able to vote, it appears very little else has changed.
According to section 47 of the Corrections Act, all prisoners in Victorian prisons have ‘15 Rights’, namely:
- Permitted one hour of fresh air.
- Healthy nourishment sufficient to maintain overall good health.
- Food in accordance with dietary, vegetarian and religious requests.
- Clothing adequate for the weather to ensure the well-being of the inmate.
- Permitted to dress in personal clothes, if not yet convicted.
- Adequate health facilities, both prison services and outside services to maintain well-being of inmate.
- Suitable psychiatric and psychological care, either within the prison, or private care.
- Sufficient dental care to maintain oral health.
- Ability to maintain religious beliefs and be with other inmates of the same faith, with approval for instruments associated with the religion.
- Access to the Ombudsman, Secretary of the Department of Justice and Community Services, an independent visitor and the general manager of the prison.
- Under section 37 of the Act, access to one visit, of at least 30 minutes duration.
- To be assessed after being sentenced, with ongoing annual reviews.
- To send and receive letters, including to persons associated with the Department of Justice and Community Services; including the Ombudsman and a barrister, or solicitor.
- Ability to send uncensored letters, dependent on security concerns.
- Ability to participate in Education.
As admitted by the Department of Justice and Community Services, little improvement on those ‘rights’ has been made since 1986.
Prisoners do retain the right, however, to challenge injustices in the Courts and Tribunals, such as the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and the Victorian Civil and Administrative Tribunal (VCAT); and even the Victims of Crime Assistance Tribunal (VOCAT), which can award a financial payout to an prisoner if they have been the subject of an unlawful assault.
On the other hand, however, an inmate should be careful not to make too many accusations, or claims, without evidence, as the Attorney-General may initiate legal action. This would be brought under section 21 of the Supreme Court Act 1986, alleging that the inmate is a ‘vexatious litigant’ (A person who brings unsupported, or frivolous allegations to the Courts, which have no merit, or chance of succeeding), thereby banning the inmate from future court action, unless granted special permission from a Judge.
Perception of the Public
Global studies show little or no concern by the Public towards prisoners forfeiting their rights.
It is widely suggested that accurate perceptions of public opinion have the potential to encourage changes to the law.
Reputable Global Scientific research groups, such as Sage Publications and ResearchGate, and organisations such as the Victorian Sentencing Advisory Council, indicate that generally, the public concensus appears to be that Judges are out of touch with what the public believe should occur. This is in particular regarding sentences of those who commit crimes where Judges are considered ‘soft on crime’.
Another concern of the general public is that society is better protected by criminals receiving longer sentences, especially for crimes of violence. A significant proportion of those surveyed believe that offenders increasingly commit violent crimes and that society is put in danger by releasing criminals too early.
However, despite such perceptions, it is also a perception of many that alternatives to actual imprisonment for less serious crimes should be pursued. This includes that parole is necessary to further safeguard society, to ensure those released from prisons are being monitored to make sure they do not commit further crimes.
Ultimately it is clear that the public have less concern about prisoners having forfeited their rights than they do for their own safety and that of the community in general. Perhaps a clearer dialogue of the true issues might help the public to see that an emphasis on and funding for rehabilitation is what will keep us all safer.