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Australian Journal of Human Rights |
It is rather trite to say that how a community treats prisoners, one of the most vulnerable groups in the community,[1] reveals a great deal about that community’s moral sensibility and to its claim to be humane, enlightened and committed to the rule of law. Indeed, the treatment of prisoners, who by definition must have broken the law, and the continued application of the law to regulate their conditions of confinement is, according to dicta contained in a decision of the United States Supreme Court,[2] indicative of a community’s maturity. Moreover, it is only comparatively recently that the law has moved to offer prisoners the protection of law during their period of incarceration.[3] It is beyond the scope of this article to consider the reasons for the denial of rights to prisoners and their relative revival in the second half of the twentieth century[4] as this article is concerned with how courts approach the adjudication of prisoners’ rights cases. That is, how courts have mediated the basic conflict in prison life between the need of correctional administrators to maintain the good order, integrity and security of the institution, and the conflicting need, as required by contemporary social values, to accord prisoners a modicum of basic rights and the expectation of fair treatment.[5]
It is the contention of this article that despite the progress that has been made in the development of a 'prisoners’ rights’[6] jurisprudence, there is still a reluctance by the courts to become involved in the internal decision making processes of prisons. The judicial position, or interpretive stance, has thus moved from a position that has been labeled the ‘hands off’ approach to prisoners’ rights to a position termed, for the purpose of this article, the ‘judicial deference’ model of prisoners’ rights. What follows is an elaboration of the judicial reasoning that courts have employed when adjudicating prisoners’ rights cases[7]. Consideration and analysis will be devoted to the reported decisions of courts in Australia, the United Kingdom and the United States of America.[8]
The approach will necessarily be broad and will not purport to be a comprehensive treatment of prisoners’ rights in the jurisdictions covered; but is rather an attempt to highlight a particular mode of interpretation that courts have employed when dealing with prisoners’ rights cases. In addition, it will not be possible to outline in great detail the social context in the three jurisdictions that has contributed to the shifting relationship between the prisoners and the law. However, attempts will be made to detail those significant events that make it possible to consider how wider social forces external to the prison contributed to how courts balance the need to guarantee the security of the prison and the maintenance of a prison order that gives sufficient recognition to prisoners as persons with important interests that ought to be protected by the law.
The argument that will be put forward here is that courts by the way that they interpret the balance between the interests of correctional administrators and prisoners in prisoners’ rights cases exert a significance influence on the relationship, or non-relationship, between prisoners and the legal order. Moreover, the key assumption that will be made is that the courts by relying on an imputed notion of ‘expertise’ have reverted to the hands off doctrine in substance, if not form. There is a significant caveat to be made however, in that any proper understanding of the role of the law in the correctional context should recognize that the law is only one site of social organisation or power. To consider prisoners’ rights in this way is to ensure that this wider social and political context is rendered apparent and that the denial, or provision, of rights to prisoners is more than the sum of reported decisions of the superior courts in the jurisdictions under consideration but is part of a wider social process that impacts on the nature of correctional regimes. Indeed, as James Jacob notes,[9] in the United States context, the prisoners rights movement is one that is ‘socio-political’ in nature and as he explains:
In speaking of the prisoners’ rights movement I refer to far more than the sum total of court decisions affecting prisoners. We are dealing with a broadscale effort to redefine the status (moral, political, economic, as well as legal) of prisoners in a democratic society. The prisoners’ rights movement, like other social movements – the civil rights movement, the women’s movement, the student movement – includes a variety of more or less organized groups and activities; there is also wide variation in the extent and intensity of individual participation. What is decisive, however, is a shared sense of grievance and the commitment to enhanced rights and entitlements for prisoners (italics in text) .[10]
Moreover, the notion of non-legal power relations, and the consideration of matters outside of the formal legal process, must be considered and that it is perhaps misfounded to view the law as an autonomous creature that is either oppressive or liberating, and that due notice has to be given to other sites of power and resistance that make up the complicated relationship between prisoners, the wider community and the legal order. In addition, as non-legal power relations have the potential to have a significant impact, the seminal work of Michel Foucault on the question of ‘power’ is particularly apposite in understanding the multiple sites of power, and resistance, within the social body. Applied to the correctional context Foucault’s analysis is important for understanding how power is exercised in the prison and the limits of the formal legal system to regulate and overcome prisoner’s vulnerability. Foucault’s work is also important not only for the recognition that power does not just work from the top down, nor unencumbered by resistance of those who are subject to that power, but is a far more complicated, diffuse and uncertain force and that there is a multitude of social relations and practices that disperse power throughout the social body outside of the traditional, formal regimes of power such as the law[11]. As such the investigation here of the way courts approach prisoners’ rights cases is to consider merely one site of the power relations between prisoners and the putative law abiding community.
Part One of this article will outline the basic conflict in the organization of prison life between the interests of correctional administrators and the interests of prisoners, and how this creates the fundamental conflict as to how the ‘good’ is achieved within the correctional environment. Part Two will consider how this conflict contributes to the vulnerability of prisoners. Part Three will be an analysis of the ‘hands off’ doctrine and the policy reasons that were put forward by courts for adopting such an approach. Part Four will consider how the move from the hands off model of prisoners rights to an interpretive model which places emphasis on the ‘expertise’ of correctional administrators, allows the contemporary conception of prisoners’ rights to become the hands off doctrine in a more socially acceptable form. In addition, this Part will consider how empirical accounts of prison administration belie the claim made by courts that they lack the requisite expertise to delineate objective standards for prison life.
The organization of prison life is underpinned by an inherent tension between the interests of correctional administrators and the interests of prisoners. Such tension is inevitable due to the totalitarian and anti-democratic nature of the prison order,[12] which is based not on consensus or an implied social contract, but on the coercive and violent power of the State[13]. This basis of prison life and its central premise that prisoners are subject to the control of correctional administrator’s interests influences to a large extent the nature of prison life. The nature of this fundamental conflict of interests, or values, is evident in the statutory regimes that regulate prisons and which seek to achieve a balance between ends of security and good order, and the welfare and rights of prisoners.[14]
The significance for the law of this fundamental dissonance between the interests of correctional administrators and prisoners is that the law may be called upon to mediate a conflict involving an organization whose basic norms are contrary to the basic tenets underlying Western legal systems: the political theory of liberalism. The ‘constitutive morality’, as Ronald Dworkin terms it, of liberalism is a theory of equality that requires the government to be neutral about theories of what is valuable or ‘good’ in life.[15] Liberalism as a political theory is thus distinguished from an Aristotelian notion of the political community, which assumes not only that there is a natural order of things, or good life, for persons, but that the government ought to be actively involved in pursuing that end for the polity.[16] In contrast, liberalism as a political morality requires that persons be treated as equals by the government, notwithstanding differing interests or ends in life[17]. For citizens, the neutrality of the government under a political system organized under liberalism tends to maximize the private sphere of individuals to choose their own good, or end, in life unencumbered by the claims of the State.[18]
The political theory of liberalism and its application to the correctional context is problematic, as the nature of the prison order tends to collapse the traditional distinction between the State and civil society. Thus because of the need of correctional administrators to maintain good order and security there are no spheres of life within the prison which are beyond their jurisdiction. Theoretically then, there are no limits to state intervention in prisoners’ lives in terms of the traditional distinction between state and civil society that is commonplace outside of the prison context. As part of the incidents of imprisonment, this abandonment of the traditional distinction between civil and political society curtails, or attenuates, the life choices of prisoners.[19] As a result, the dominance of the goals of order and security as the ‘good’ to be achieved by correctional administrators may reduce the ability of prisoners to pursue their own version of the ‘good’. Thus the ends of correctional administrators tend to predominate, and the ability of prisoners to pursue their own good is curtailed or subject to the need of the institution to achieve the end of ‘good order and security’.[20]
Put simply, the good or end of the correctional institution is a collective one, and a good that places priority on the achievement of good order and security, notwithstanding that this end reduces the ability of prisoners’ to pursue their own, divergent versions of the good. The notion of order is itself a complex one and a dynamic, shifting concept in the prison environment that changes over time and is a state of affairs that does not naturally arise, but is the product of the nature of the regime thought appropriate to secure it in a particular prison at a particular point in time. As Sparks et al note:
...as every prison governor and prison officer knows, maintaining ‘good order’ on a day to day basis is a complex and multifaceted business; and whatever institutional order exists is the outcome of a continual process of ‘working at’ it. In that sense, it is certainly true to say that the maintenance of order is a perennial problem for administrators and staff – just as it is true that living under that order is the perennial problem of prisoners (emphasis in original) .[21]
Thus as a managerial goal correctional administrators value order and security and to remain in control of the institution and to confine prisoners in a humane way according to law[22]. Correctional administrators must not however concentrate solely on security and good order, and need to adopt a working philosophy ‘that balances the custody and treatment responsibilities’[23] of the prison. Their brief is to maintain the smooth, orderly functioning of the prison and to maintain its good order and security and, as their obligation is to provide for the humane and secure confinement of offenders, their end or ‘good’ is necessarily collective in character.[24] Thus because correctional administrators must act in the interests of a collectivity, there may be a tendency to manage correctional facilities in an utilitarian[25] manner which may lead to the implementing of policies which may benefit the majority within an institution[26] but compromise the rights of individual prisoners.[27]
Moreover, the interests of prisoners may not necessarily concur with those of correctional administrators.[28] That prisoners’ ends are in conflict with those of correctional administrators is perhaps inevitable given the divergent ends or goods of both. Such a conflict produces the development of what has been termed the ‘prison subculture’,[29] which is typified as a site of resistance by prisoners against the all-encompassing nature of the prison regime.[30] This resistance to the ends of correctional administrators develops its own norms and values and may consist of behaviour that is antithetical to the good order and security of the institution. Some of these mores may include, amongst other things, a disdain of authority, status through acts of violence, circumvention of the prison rules and drug use.[31] It is beyond the scope of this article to consider in any detail the characteristics and the motivations that lead to the development of the prison subculture, suffice to say that its existence within prisons may impact on the ability of correctional administrators to discharge their duties in relation to security and welfare, and may also impact substantially on the quality of life within a prison. It also demonstrates that, despite the strict controls typically associated with the prison environment, prisoners are still able to create a version, albeit attenuated, of the good and that they are not passive victims of power in the correctional context, with power merely moving from the top down in an unmediated fashion and without any resistance from those subject to that power.[32]
A defining feature of prisoners’ existence is that of vulnerability.[33] Prisoners’ initial vulnerability is created by the environment in which are placed. Prisons, by their structure and function, are virtually ‘hermetically sealed’[34] from the rest of the community.[35] Moreover, prisons are also an ideal type of what Erving Goffman, in his seminal work Asylums, termed ‘total institutions’.[36] The distinctive characteristic of such institutions is that all aspects of an individuals daily routine are conflated and occur in a solitary physical location with others in a similar position.[37] In addition, hierarchical relationships and bureaucratic norms figure predominantly in the construction and the maintenance of order in such institutions. Prisons are also spatially and architecturally separate from the community, and operate beyond the purview or sight of the community further sustaining the isolation of prisoners.[38]
Prisoners’ are also vulnerable to the privations that figure in prison life. These ‘pains of imprisonment’, as they have been termed,[39] compromise and curtail the life choices and autonomy of prisoners.[40] In addition, prisoners may be subject to violence from other inmates[41] or staff,[42] and suffer exposure to potentially life threatening diseases such as hepatitis C and the HIV/AIDS virus.[43] Apart from these physical conditions, prisoners may also be subject to deleterious psychological consequences from being confined in a prison,[44] or being subject to a more onerous daily prison regime such as secure or solitary confinement,[45] which may lead to acts of self-harm such as hunger strikes,[46] suicide[47] or acts of self-mutilation.[48] More recent problems in prison administration due to overcrowding,[49] may also reduce the ability of correctional administrators to adequately discharge their welfare function on behalf of prisoners and may lead to such administrators concentrating more on security and good order rather than measures which may be of benefit to prisoners upon their release.[50]
As hopefully has become clear, prisoners’ daily existence is characterised by vulnerability that arises from the nature of the prison order. Apart from the deleterious physical and psychological consequences that are produced by such an environment, prisoners’ ability to enjoy a high degree of autonomy are emasculated by the end of correctional administrators to maintain the good order and security of the institution. Ultimately then, the ability of prisoners to pursue their own version of the good is a function of the ability of correctional administrators to provide this order which, simultaneously, reduces their autonomy. The problem for correctional administrators and, ultimately for a court when called upon to adjudicate the competing claims of those administrators and prisoners, is a balancing exercise between the need to provide a prison order that is orderly and secure, yet does not leave prisoners with such a narrow sphere of autonomy that the operation of the prison itself is antipathetic to the norms of modern society and the prescriptions of international human rights law which would seek to secure the liberties of all persons notwithstanding their status.[51]
Given the vulnerability of prisoners’ as a group and the primacy of security, and the potential use of force, as the organizing principle for correctional administrators it would be expected that the law would have played a prominent role in delineating the rights of prisoners’ and provided appropriate remedies should those rights have been infringed. This was not the case, at least in the jurisdictions under consideration, with the judicial approach characterised historically by a non-interventionist stance and by courts reluctance to interfere with the administration of prisons.[52] Justice White of the South Australian Supreme Court has described the judicial non-involvement this way:
Prisoners have been singularly and conspicuously unsuccessful in their attempts to have the Courts intervene for the protection of any residual rights under the law which they might retain against abuses of power by the administrative regimes set up for their detention and control.[53]
This judicial approach has been described as ‘hands off’, which refers not to a distinct legal notion that is unique to the correctional context but rather a particular judicial stance, or interpretive position, in prisoners’ rights cases.[54] It was an approach characterised by judicial reticence and a policy belief that the management of penal institutions would become unworkable if courts were to intervene in the day to day management of prisons. There was concern not only for the separation of powers but also a fear that the authority of the prison warden or governor would be undermined, and discipline compromised, if courts were to intervene on behalf of prisoners.[55]
In Australia an illustrative example of the hands off doctrine and the policy that underpinned it was the decision of Flynn v King.[56] In that case the applicant prisoner sought to challenge a provision of the Western Australia Corrections Regulation concerning remissions. Justice Dixon, as he then was, of the High Court of Australia suggested that to allow a prisoner to challenge a decision made by a correctional administrator would undermine the integrity of the prison as a self-governing institution. The dicta of Dixon J is worth citing at length because of the way His Honour lays in plain relief the policy grounds justifying curial non-intervention in prisoners’ rights cases. His Honour held that:
...if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in application to the courts by prisoners, for legal remedies addressed to the Crown or to the gaoler in whose custody they remain. Such a construction of the regulation making power was plainly never intended by the legislature and should be avoided. An interpretation of the power to make prison regulations and of the regulations made thereunder are directed to discipline and administration and not to the legal rights of prisoners is, in my opinion, supported by the decision of this court in Horwitz’s case.[57]
The dicta of Dixon J has often been cited to deny curial relief to prisoners’ who have sought to challenge the conditions of their confinement,[58] although the authority of the decision has been somewhat diminished given developments in administrative law[59] and in a number of State Supreme Court decisions which have suggested that the decision does not accord with the modern trend to open, accountable and transparent decision making by government institutions.[60] Flynn was also a decision subject to substantial academic critique because of the effect of that decision was to place prisoners outside the protection of the law and to permit an extreme discretion to remain vested in correctional administrators whose decision making processes were not able to be challenged, notwithstanding the potential impact that such unaccountable power may have on the coveted interests of prisoners.[61] Thus correctional administrators could exercise their considerable powers with great autonomy and flexibility, and without reference to ideas of natural justice or other legal forms.
The passage cited from Flynn’s case contains three of the policy elements that comprised the hands off doctrine. First, a concern by courts that to intervene in prison administration would shift management of the prison to the courts, and thus from the executive arm of government to the judicial thereby threatening the separation of powers. The second concern discerned by Dixon J was that to accord prisoners legally enforceable rights would have been to undermine the authority and discipline within a prison. Finally, if courts accepted that they had a role to play in the management of the prison then the ‘flood gates’ would be opened and prisoners would overwhelm courts with frivolous and unmeritorious actions.
It must be noted that Flynn’s case was decided in 1949 and development of the international human rights jurisprudence was still in its infancy, emerging as a response to the extreme violation of human rights in the Second World War. The prison’s antidemocratic order, and the less than inclusive emphasis of the hands off doctrine, were seemingly part of the natural order of things and it would take significant unrest both in Australia and a change in the social values and mores in the jurisdictions under consideration before the development of a new relationship between the prisoners and the legal order. Some of those significant developments will be considered in Part Three ‘Retrieval of Prisoners’ Rights’.
Similarly, courts in the United Kingdom, adopted a stance not unlike the position of Dixon J in Flynn’s case; that is, a distinct reluctance to become involved in the administration of prisons.[62] An example of this approach is evident in the case of Arbon v Anderson[63] that concerned a failure by correctional administrators to comply with the Prison Rules. In this case Goddard LJ asserted that those rules did not ‘confer rights on prisoners which can be enforced’.[64] The policy reason put forward by the court emphasised that prisoners’ complaints regarding the conditions of their confinement were more appropriately directed to the executive rather than to the courts. To do otherwise would be to jeopardise the security of the prison because:
It would be fatal to all discipline in prison if governors and wardens had to perform their duty always with the fear of an action before their eyes if they in any way deviated from the rules. The safeguards against abuse are appeals to the Governor, to the visiting committee, and finally to the Secretary of State, and those, in my opinion, are the only remedies.[65]
Later English cases put forward similar concerns to those raised in Arbon’s case. For instance, in Becker v Home Office[66] Lord Denning outlined what he viewed as the serious consequences that would arise for correctional administrators should prisoners be able to challenge their decisions by way of judicial review. Lord Denning stated that:
If courts were to entertain actions by disgruntled prisoners, the Governor’s life would become intolerable. The discipline of the prison would be undermined. The prison rules are regulatory guides only. Even if they are not observed, they do not give rise to a cause of action.[67]
In both Becker and Arbon the court did not consider or refer to the consequences of placing prisoners outside the protection of the law, nor is there an attempt to reconcile the interests of correctional administrators with those of prisoners; rather prisoners are deemed to possess no rights capable of enforcement. As a result the end of good order and security becomes the sole end of the correctional enterprise, notwithstanding the diminution in prisoners’ autonomy, and the authority of correctional administrators is emphasised and privileged over the countervailing interests of prisoners. Thus the approach in earlier English cases was based on policy grounds not dissimilar to those outlined in Flynn’s case. First, denial by courts that they had the jurisdiction to entertain prisoners’ challenges to the conditions of their confinement. Second, a policy concern that should courts intervene in the management of prisons security and discipline would necessarily be undermined. Third, and by necessary implication, correctional administrators were to be given wide discretion to manage prisons as they saw fit as prisoners were not vested with enforceable rights to challenge the exercise of such discretion. In the United Kingdom, like Australia, there was to be considerable unrest in the prison system in that country before a new relationship was to be configured between prisoners and the legal order. In addition, the entrance of the United Kingdom into the European Community was to have implications for the domestic legal order and, in particular, in the relationship between citizens and the agents of government in that country. This matter will be considered further in Part Three ‘Retrieval of Prisoners’ Rights’.
As discussed previously, the term ‘hands off’ is a notion that refers to a reluctance by courts to become involved in the day to day administration of prisons because of a belief that undesirable consequences would flow as a result. This position, or judicial approach, has been described succinctly by Alexander[68] who notes that:
Until recently courts routinely invoked a hands off doctrine of total deference to the presumed administrative expertise of prison officials and refused to scrutinise inmates complaints about conditions of confinement.[69]
In the American context it has been suggested that four principle grounds existed for the existence of the hands off doctrine: perceived lack of expertise by courts; separation of powers; the floodgates argument and federalism.[70] In relation to the claim that courts lacked necessary expertise, the courts agreed and suggested that should they intervene and impose their uniformed judgment there may have been serious consequences for discipline and security within correctional institutions.[71] The justification put forward for non-intervention on the basis of separation of powers was that if courts were to intervene in the area of prison administration this would undermine the power of the legislative and executive branches to operate correctional institutions in a manner they believed appropriate, and in conformity with the policy choices determined by those branches of government.[72] In addition, there was a concern that should a court decide that it had jurisdiction to entertain prisoners’ application to challenge the conditions of their confinement then the ‘flood gates’ would be open to such claims.[73] Finally, federalism, which was not an argument for the hands off doctrine in the Australian and English context, was the belief in the American context that prison administration was purely a State concern and that Federal constitutional norms ought not to apply in that sphere.[74]
As hopefully will be demonstrated these concerns over curial involvement were to diminish over time as American courts expanded their involvement into the neglected area of prison administration and imposed constitutional requirements into the prison order of that country. And, like the Australian and English experience, this emergence of the law into the area of prison administration was also part of a wider social process that demanded more accountability in government decision making. In addition, it was part of a broader social movement whereby hitherto marginalised groups within the community were to utilise the legal process, and to overcome the limits to social change offered by the political process.
At the outset it is important to bear in mind that the word ‘retrieval’ is a relative term and that it is not possible to assign to it a precise or fixed meaning. Definitional problems are compounded further when the subject matter under consideration is as expansive as here, and where there is not a symmetrical relationship between the three jurisdictions under consideration, but rather indigenous legal orders which have developed independently and autonomously. Notwithstanding this difficulty, and as the intention here is to highlight a broad trend or practice in the three jurisdictions, the argument in the following section is that there has been a retrieval of prisoners rights in that in all jurisdictions the courts have shifted away from the hands off approach and reconfigured the relationship between the legal order and the prisoners. This reconfiguration has not been identical nor has the social context, but there has been a shift and what has emerged has been, importantly for our purposes, jurisdictions which have become more cognizant of the rights of prisoners and demonstrated a greater willingness to intervene into the administration of prisons than had hitherto been the case.
The decision which set the tenor for the non-interventionist or hands off approach in Australia, Flynn v King, became progressively untenable over time, most probably due to its disturbing implication that there existed an important area of social concern beyond the jurisdiction of the law. The shift away from this policy did not however occur quickly, nor comprehensively, and was the product not merely of a shift in judicial thinking but was perhaps also the result of considerable unrest that was to occur in the prisons of the most populous states in Australia, New South Wales and Victoria, during the 1970s, as well as the effect of broader social change whereby claims to authority were treated with a degree of skepticism. In addition, the prison administrations of both those States had to deal with the reality of searching inquiries into aspects of their prison system which highlighted the dependence and vulnerability of prisoners and the problem of the unaccountable use of power. A most troubling common denominator was the extent and nature of violence that had been inflicted upon prisoners.
The unrest involved a number of highly publicised riots[75] by prisoners against their treatment by correctional authorities who, in certain instances, condoned the brutality of prison staff and did not accept the complaints made by prisoners. For instance the Report of the Royal Commission into New South Wales Prisons found that there existed at Grafton Prison a practice known as the ‘reception biff’ which was invariably administered to prisoners upon their arrival at that prison. The Royal Commission found that this practice had existed for around thirty years and that:
...upon first admission to the gaol, intractable prisoners were the subject of a ‘reception biff’, which consisted of a physical beating of the prisoner about the back, buttocks, shoulders, legs and arms by two or three officers using the rubber batons.[76]
Similar findings were made in the context of Bathurst Prison, with the most serious finding being that there were violent, systematic reprisals inflicted against prisoners by prison officers in the wake of a riot that occurred in October 1970[77]. Disturbingly, the Royal Commission found that senior correctional management knew of such violent incidents but chose to take no further action.[78]
Similarly in Victoria, the Report of the Board of Inquiry into Allegations of Brutality and Ill Treatment at H.M. Prison Pentridge[79] that arose from an investigation by Kenneth Jenkinson QC into alleged ill treatment of prisoners found that a number of inmates had been assaulted by prison officers, especially in the High Security Division, ‘H’ Division. That particular division had acquired amongst prisoners and their families a reputation for brutality and was the main catalyst for the appointment of a Board of Inquiry. Indeed, most of the complaints put forward by prisoners to the Inquiry were of ‘assault, which is an indictable misdemeanor’.[80]
The subsequent inquiries in both States made it clear that the unaccountable use of power, which had become normalized in correctional departments, was no longer acceptable. As Ramsland notes when discussing the finding of the Nagle Royal Commission that the:
...strict control of public access to knowledge of what was occurring in prisons allowed for the structural brutality of the system to continue unquestioned and unhindered.[81]
It also demonstrated that the level of unrest in terms of riots and other manifestations of prison disorder were not merely the end product of unruly, recalcitrant inmates but the result of a type of prison administration that was not operated in accordance with the notion of due process nor showed a willingness to secure the important interests of inmates that they still possessed notwithstanding their diminished status. In this way, inmates protests whether by riots or withdrawal of labour had an instrumental dimension in that it was a means by which prisoners could effectively raise their grievances and to ensure that they had an impact upon the public consciousness.
Other actions and acts of resistance by prison inmates in a number of jurisdictions included strikes, sit ins and the organization by prisoners and ex-prisoners of pressure groups that exposed the abuses that were said to be endemic to the prison system.[82] The central feature of proposals put forward to change the nature of the penal process by such groups was that the prison system needed to be reconfigured so that it would accord adequate recognition to the humanity and also require that correctional administrators were to be accountable for decisions that affected prisoners. In this context, and given the findings of both Inquiries, prison administration would have to change and would have to regard prisoners as persons who possessed certain basic entitlements which were to be secured by correctional administrators. The previous philosophy of correctional management where the individual philosophies of governors, or chiefs of high security divisions, determined the nature of prison order was thus at an end. More importantly, too, was the effect that this may have had on inmates to the extent that inmates would now be more willing now to access the legal system to deal with claims made by them that they had been subject to capricious and unfair treatment. Other strategies adopted by prisoners included court challenges to the power of correctional administrators to treat prisoners in ways which they saw fit and without reference to the ideas of natural justice and elementary notions of due process.[83] In the Victorian context, prisoners were also significant users of the Ombudsman, a statutory body established to investigate maladministration in government departments, which had been established in 1973.[84]
.
Notwithstanding the amount of unrest in prisons in Australia throughout 1970s and the rendering on the public consciousness of the insidious practices that can occur in prisons, prisoners are unable still to rely, at both the state and federal level, on entrenched constitutional provisions when seeking to challenge the actions or decisions of correctional administrators.[85] Thus it is important to conceptualize the change in prisons in Australia as still being in a relatively inchoate form with gradual, piece-meal change occurring over time. Each State and Territory in Australia has its own prison Act to regulate its prison system,[86] and without interference by the Federal government who under the constitutional order in Australia would not seem to have direct power over the administration of prisons of the states and territories.[87] In most instances an aggrieved prisoner must challenge the actions or decisions of correctional administrators by way of administrative law remedies. Prisoners may also enforce statutory[88] and other rights by way of prerogative writ or declaration or injunction.[89] Thus, although prisoners in Australia are now arguably better placed to challenge the conditions of their confinement, the scope of judicial intervention is relatively narrow and confined to situations where a prisoner has a legitimate expectation to a particular benefit or entitlement,[90] or there is evidence to show that a decision was made in bad faith or for an improper motive[91] and when a decision has not been made in accordance with the principles of natural justice.[92] In extreme cases, a decision or action of correctional administrators may be challenged on the basis that it breaches community values and subjects the prisoner to ‘cruel and unusual punishment’.[93]
As noted previously, courts within Australia have shifted from the authority of Flynn and the policy implications associated with this method of interpreting prisoners’ rights cases to the extent that it suggested that prisoners’ were outside the protection of the law and that those administrators responsible for the administration of the sentence of the court were unaccountable to that same court for the treatment of prisoners. Courts now recognise that they have jurisdiction to entertain prisoners’ challenges to the lawfulness of their conditions of confinement.[94] Moreover, there is now explicit judicial recognition of the unique vulnerability of prisoners and of the necessity of the law to guarantee the important interests of prisoners.[95] Thus there has been a shift away from the hands off approach that was evident in Flynn’s case and a realisation that prisoners do require protection given their unique and vulnerable position vis a vis the State and correctional administrators.
In sum then, courts in Australia are now prepared to accept that they have jurisdiction to entertain prisoners’ applications for judicial review of the decisions of correctional administrators. This does not, however, remove the difficulties that prisoners’ may encounter in bringing challenges to the actions of correctional administrators. First, prisoners will continue to be confronted by the distinction between managerial or operational aspects of the prison order and other aspects which do vest rights, and the claim by courts that impugned decisions which fall into the former category are non-justiciable, notwithstanding the significant impact that such policies may have on the quality of a prisoner’s confinement.[96] Thus, decisions dealing with the transfer of prisoners between and within a prison, segregation of prisoners, and other aspects of prison administration concerning matters such as the provision of condoms and syringes and the general concern of the good order and security of the prison will be outside what is perceived to be the role of the courts and will remain solely a decision for correctional administrators in their aim to maintain the good order and security of the prison.[97] Put simply, policy concerns regarding the management of the prison will not be subject to judicial review unless they contravene some statute or regulation,[98] or the decision was not bona fide and not made for a proper purpose or motive[99] and in situations where there has been a failure to comply with the rules of natural justice.[100] Second, although courts will now entertain prisoners’ applications for judicial review, courts will tend to rely heavily on the judgment and ‘expertise’ of correctional administrators when determining the facts in issue and also whether or not an issue falls within the operational or policy sphere. This aspect of prisoners’ rights jurisprudence will be considered further in Part Five, ‘Hands Off By Stealth’.
In the United Kingdom the catalyst for the retrieval of prisoners’ rights was the decision of R v Board of Visitors of Hull Prison; Ex Parte Germaine[101] (hereafter St Germaines). The core issue in that case was whether or not the board responsible for disciplinary hearings within the prison had to comply with the rules of natural justice. The majority of the English Court of Appeal held that such boards were bound by the rules of natural justice. What is significant for our purpose is the shift away from the hands off approach and the clear statement in St Germaines that prisoners, notwithstanding their diminished status arising from the nature of the prison order, were still subject to the protective oversight of the law unless there were explicit statutory provisions that ousted the jurisdiction of the court.[102] Thus the majority and, in particular Shaw LJ, made clear the importance of the role of courts as the ‘ultimate custodian of the rights and liberties of the subject whatever his status’.[103] The majority in St Germaines also considered the arguments traditionally put forward as to the undesirability of curial involvement in administration of prisons. Those arguments, which form part of the policy basis for the hands off doctrine, suggested that to permit curial supervision would be to promote vexatious and capricious complaints and thereby undermine prison discipline. Shaw LJ noted that courts had the ability, by virtue of their inherent power to regulate their own proceedings, to deal with applications wholly without merit. Indeed, for Shaw LJ if such arguments were to be successful, and thus prevent prisoners from making the appropriate application to a court of competent jurisdiction, would be ‘tantamount to abdicating a primary function of the judiciary’.[104]
The decision in St Germaines is significant for its rejection of the central premise of previous English authority such as Arbon and Becker that the law had little, if any, role in the regulation of correctional administrators. Thus it represents a shift away from a jurisprudence which would exclude prisoners to one that emphasises the continuing, seamless concern of the law with the rights of individuals, notwithstanding their status. The impact of St Germaines on subsequent English cases in this area was significant in the evolving relationship between the law, correctional administrators and prisoners in that jurisdiction. Indeed, in the decade following, St Germaines was consistently cited and applied[105] as the ambit of curial supervision of the conditions of confinement in the United Kingdom and continued to expand into greater areas of prison administration[106]. And as Livingstone, in an article published in 1988,[107] noted:
Prisoners’ rights as a concept were almost unknown to English law a decade ago. Since that time they have developed steadily through the medium of judicial review of prison authority’s actions.[108]
The decision in Raymond v Honey,[109] which followed shortly after St Germaines, is significant for its buttressing of the position of Shaw LJ in St Germaines and its oft cited dicta that prisoners are deemed to possess those rights, which are not otherwise expressly or by implication removed as a result of the consequence of imprisonment.[110] Thus, with non-intervention in prison administration no longer possible, the issue for the courts in the United Kingdom, as well as for jurisdictions in Australia and the United States, was how the balance was to be wrought between the interests of prisoners to live their lives according to the good that they hold true and the need of correctional administrators to maintain the ‘good order, security and management’ of the prison.
In addition, as in Australia and the United States, the transformation or new approach adopted by courts in prisoners rights cases in the United Kingdom occurred in a particular social and historical context which has produced the environment where to argue that prisoners are deprived of all rights of whatever nature during their sentence of imprisonment became untenable. Moreover, protests by prisoners during the 1970s were to act as a factor of bringing the treatment of prisoners to the public debate concerning crime and punishment. A cited factor for the emergence of these protests by prisoners were the deteriorating prison conditions as the United Kingdom coped with an imprisonment rate that had been rising since the end of World War Two.[111] As a result by the late 1960s overcrowding was a critical issue for correctional administrators who had to cope with an increasing prison population, in conjunction with prisons that were in poor physical condition. The first significant protest by prisoners, according to Newburn, was the protest in 1970 at Brixton Prison by remand prisoners signaled the ‘catalyst for the prisoners’ rights movement’[112] in the United Kingdom. In 1972 there was further unrest on a national level as between 5,000-10,000 prisoners took part in a sit down strike.[113] Riots also became a familiar part of the prison landscape in the United Kingdom with the most serious occurring at Hull Prison in 1976 which lasted for four days and where a large number of prisoners were injured by prison officers who had engaged in unlawful reprisals against prisoners after the conclusion of the riot.[114]
In more recent times, the twenty five day riot that occurred at Strangeways Prison in April 1990 and resulted in the landmark Woolf Report[115] suggest that the problem of disorder is a continuing, ongoing concern for correctional administrators. The Woolf Report is significant in its departure from other reports on riots in that it did not attempt to lay total responsibility for the riot with the prisoners, but considered that the important and delicate relationship that exists between correctional administrators and prisoners was the central determinant as to whether there would be disorder within a prison. For Lord Woolf, understanding the nature of disorder within a prison it was important to realize that the concerns of prisoners had to be taken seriously. There was also recognition that the management style within a prison system that placed priority on the good order and security of the institution without considering ideas of fairness and due process for prisoners may be counter productive and, paradoxically, lead to the deterioration of the social order within a prison. Thus although the concerns of custody and control were central to the correctional enterprise, they were not sufficient to guarantee order. What the Woolf Report viewed as an essential aspect of maintaining order in a prison was that ‘justice’ had to be balanced with custody and control and that this was pivotal to maintaining the legitimacy of the prison system.[116] The important effect of such a concentration on ‘justice’ for inmates to a correctional regime is that it may prevent the grievances of prisoners escalating to such an extent that prisoners perceive riots and other forms of protest as being their only means of having their concerns dealt with.
Apart from the disorder that has become synonymous with the prison system in the United Kingdom since the early 1970s,[117] the entrance of the United Kingdom into supranational order of the European Community and the ability of their citizens to take what were traditionally domestic matters to bodies such as the European Court of Human Rights for determination, if not enforcement in their own country, was to add a further institutional aspect to prisoners rights in that country.[118] And although enforcement is an impediment, the effect of an adverse finding at the European Human Rights Commission may prompt the appropriate response from the Home Office, the department responsible for the administration of prisons.
In the United States, primarily since the late 1960s, there was a distinct move by courts, especially those in the federal sphere, towards a greater involvement in the regulation of the conditions of prison life than had been the case under the ideology of the hands off doctrine. The greater recognition that was to be accorded to prisoners’ as right bearing individuals was also part of a broader social movement occurring in the United States. As Jacobs explains:
Starting with the black civil rights movement in the 1950s, one marginal group after another – blacks, poor people, welfare mothers, mental patients, women, children, aliens, gays and the handicapped – has pressed for admission into the societal mainstream. While each group has its own history and a special character, the general trend has been to extend citizenship rights to a greater proportion of the total population by recognizing the existence and legitimacy of group grievances.[119]
Thus the jurisprudence which was to develop in the area of prisoners rights was part of a wider process of social change as marginal groups sought to press their claims for inclusion through the legal process. This jurisprudence, which was built on a number of significant decisions of the United States Supreme Court in the 1960s,[120] repudiated the hands off doctrine to the extent that such cases suggested that correctional administrators were able to operate such institutions without reference to the constitutional protections offered to all citizens in the United States by virtue of the Federal Constitution and its amendments. Thus in Wolff v McDonnell[121] the United States Supreme Court upheld prisoners’ claims for due process in relation to internal prison disciplinary proceedings, and stated emphatically that there was to be ‘no iron curtain between the prisons and the constitution’.[122]
In addition, the Supreme Court developed further the constitutional rights of prisoners by extending the application of the First and Eighth amendments of the United States Constitution to the prison context.[123] Moreover, through the operation of the Fourteenth amendment to the Constitution such protections were to be offered to prisoners in both the federal and state correctional systems. This expansive jurisprudence, and the plethora of case law that was produced,[124] confirmed that prisoners did possess ‘rights’ capable of enforcement and that they extended, inter alia, to the following: meaningful access to the courts;[125] religious freedom;[126] medical treatment;[127] free speech;[128] physical security;[129] and a prohibition that prisoners were not to be subject to punishment that was ‘cruel and unusual’.[130] Those rights were not, however, free standing and independent of the need of the correctional administrators to maintain the good order and security of the institution. What the intrusion of such constitutional norms did do though, was to require that if correctional administrators wished to implement a regulation or policy that in some way interfered with the interests of prisoners, that such interference had to be reasonably related to a legitimate penological objective and could not be achieved through less intrusive means.[131]
Thus at the end of this period of relative retrieval of the rights of prisoners in the United States it was clear that although imprisonment as a form of punishment necessarily involved the removal, or diminution, of some rights that were inconsistent with the secure and orderly operation of correctional facilities, prisoners did retain a residue of constitutional rights, or liberty interests, which would be protected by the legal system. This shift away from the hands off doctrine in the United States did not, as in Australia and the United Kingdom, emerge in a social vacuum but formed part of a wider social movement of previously hitherto marginal groups whose particular concerns had been excluded by the dominant social and legal order. In addition, a number of riots in the more populous states of California and New York which culminated with the Attica riot in the State of New York, that left thirty nine prisoners and hostages dead, placed the concerns of prisoners firmly in public consciousness in that country.[132] In addition, the increasingly politicization of prisoners throughout the 1960s and 1970s made the hands off doctrine a redundant method of approaching prisoners rights cases as prisoners used the legal process as an important means to advance their interests.
Notwithstanding the shift away from the hands off doctrine as a method of approaching prisoners’ rights cases in the jurisdictions under consideration, what courts now do is to accord such a degree of deference to the judgement and ‘expertise’ of correctional administrators that the approach is similar to the hands off doctrine in substance, if not form. That the courts give such latitude to the judgement and expertise of correctional administrators may be expected given the complexity of the prison environment and social order within which such administrators operate. However, too great a reliance on the expertise of correctional administrators may narrow in an impermissible way the protection afforded to prisoners as a result of the shift away from the hands off doctrine.
The idea that correctional administrators possess certain expertise which places them in an unique position to balance the need of the institution to achieve good order and security and the greatest degree of freedom for prisoners, has been given explicit judicial recognition in the United States Supreme Court. It is proposed to consider those cases and to highlight the assumptions involved in the acceptance of the role of such expertise in determining the balance to be wrought between the interests of correctional administrators and prisoners. In Australia and the United Kingdom courts have been less inclined to refer to expertise in the same manner, although it will be argued that the reference in the case law to notions of ‘good order’, ‘security’ and ‘discipline’ in the context of correctional administrators decisions suggest that in those jurisdictions there has been an implicit acceptance by courts to accept the expertise of correctional administrators and thus to agree with their judgments as to where the balance ought to lay between the competing interests of correctional administrators and prisoners.
The starting point in the United States context for a discussion of the expertise of correctional administrators and its relevance in prisoners’ rights cases is Block v Rutherford.[133] In that case the United States Supreme Court held that courts should ordinarily defer to the ‘expert judgment’ of prison authorities when determining the facts in issue.[134] The notion of expertise forms part of a wider belief system adopted by courts that correctional administrators are much better placed to determine the extent of the residual liberty interest of prisoners’ in the correctional context, and in those circumstances a degree of deference to the judgment of prison officials was appropriate.[135] This stance by the Supreme Court has led commentators to suggest that judicial deference is now the ‘guiding principle’ adopted by that court in prisoners’ rights cases.[136]
In Turner v Safley,[137] the leading United States Supreme Court decision on how courts should balance the competing claims of correctional administrators and prisoners,[138] the Court took the opportunity to consider further the notion of expertise in the correctional context and also to confirm the correctness of its earlier decisions in Block v Rutherford[139] and Pell v Procunier.[140] The Supreme Court expressly adopted its approach in the case of Pell where it held that decisions concerning the administration of prisons are:
... peculiarly within the province and professional expertise of correctional officials, and, in the absence of substantial evidence on the record to indicate that the officials have exaggerated their response, courts should ordinarily defer to their expert judgment in such matters (my emphasis) .[141]
The problem with this method of approaching prisoners’ rights cases is that the court excludes itself from being in a position to the supervise the treatment of prisoners apart from extreme cases where it is clear that correctional administrators have acted inappropriately. Indeed, if the claim by the majority in Turner’s case is accepted that correctional administrators possess a certain level of expertise in the management of correctional institutions which the court is unable to match, then the court excludes itself from being able to determine whether or not a particular correctional administrator has exaggerated its security concerns as only the administrator itself possesses that expertise.
The priority afforded to correctional administrators’ judgements, notwithstanding the significant consequences for the quality of life of prisoners if those judgments are mistaken, is to signal a return to the management of prisons which is characterised by the arbitrary and idiosyncratic style that was associated with the hands off approach. The implications of the judicial deference approach is recognised by the minority in Turner v Safley who suggest that the test proposed by the majority is rendered virtually ‘meaningless’ due to the degree of deference it permitted to correctional administrators. The minority noted that:
... if the standard can be satisfied by nothing more than a logical connection between the regulation and a legitimate penological concern perceived by a cautious warden, it is virtually meaningless. Application of the standard would seem to permit disregard for inmate’s constitutional rights whenever the imagination of the warden produces a plausible security concern and a deferential trial court is able to discern a logical connection between that concern and the challenged regulation.[142]
Thus the minority recognise the inherent and entrenched vulnerability of prisoners as a class and their relative powerlessness to correctional administrators. There is also recognition of the need for a court to scrutinise carefully the justifications put forward by those administrators to impinge on the remaining residual liberty interest of prisoners. In short, the minority in Turner v Safley does not give the judgments of correctional administrators a privilege or ‘mythical’ status.[143] The minority view requires that claims put forward by correctional administrators be tested carefully, and for the court to reach its own judgment, after being presented with relevant evidence, as to whether or not those claims are justified in accordance with the need to guarantee prisoners that degree of freedom consistent with the good order and security of the institution. In addition, the minority view gives due notice to the fundamental conflict in the prison order between the ends of correctional administrators and prisoners and that correctional administrators may, in articulating their perceived security concerns, adopt a position that is self serving in nature.
In contrast to the judicial exposition regarding the expertise of correctional administrators in the United States, courts in Australia and the United Kingdom have not attempted to articulate what constitutes expertise in the correctional context nor outlined as clearly the view that a court ought prefer the expert judgment of correctional administrators. This may be partially due to the distinctive nature of the American constitutional order and the influence of the way in which constitutional disputes are structured in that country with government agencies wishing to impinge on the constitutional rights of a class of citizens having to satisfy a court that the liberty interest that is sought to be interfered with is reasonable in terms of the governmental interest that is sought to be protected. Instead what the courts do, particularly in the Australian context is to refer broad notions such as the need for correctional administrators to maintain ‘good order’[144] and ‘security’[145] within the prison. As a result the deference to the expertise of correctional administrators is made more by implication, rather than any explicit statement that the court prefers the expertise of correctional administrators than its own judgment.
An example of this approach and reliance on the expert judgments is McEvoy v Lobban.[146] That case involved an Aboriginal prisoner who complained that the decision to segregate him was not made in accordance with the requirements of the Act governing prisons in Queensland. The concerns put forward by the correctional administrators for segregating the applicant was that they had received information that he may be involved in the organization of a riot with other Aboriginal prisoners on Australian Day and that non-indigenous persons would be the targets for that violence. The applicant had not been charged with any offence nor was it alleged that he had engaged in any act that contravened prison security. The reason for the segregation was the belief by correctional administrators that to ‘maintain order’ it was necessary to isolate the applicant. The Full Court of the Supreme Court of Queensland held that the correctional administrators had acted within power by placement of the applicant into segregated custody. The judgment of Macrossan CJ is worth citing at length to emphasize that the level of evidence that seems to be required is comparatively low once correctional administrators are able to claim a threat to the ‘good order and security’ of the prison. What is of further significance is that there seems to be little weight attributed to the interests of the individual prisoner once the matter of the security of the prison as a whole is allegedly threatened. As Macrossan CJ explains:
The feature of the present case which is of fundamental importance to recognize is that the actions of the prison authorities in segregating the appellant and treating him in a way which involved some restriction of amenity was an act bona fide taken in the interests of the prison as a whole. It was done as a precaution against the possibility of a riot which it was feared might take place. No offence was alleged against the appellant and certainly no charge could have been proved. Still the authorities acted in good faith on information received and in a way which was considered necessary in the circumstances.[147]
The difficulty of course is that the court by relying on the judgment of correctional authorities does not apprise itself with the balancing exercise but rather relies on the good faith of correctional administrators and ignores the reality that that correctional administrators in their desire to maintain good order and security may make decisions which may unnecessarily restrict the liberty of prisoners. A further illustration of this approach and the reliance placed on the ‘expertise’ of administrators is provided by the decision of the Supreme Court of Victoria in Binse v Williams.[148] That case was concerned with the challenge by the prisoner as to the use of leg irons and shackles that had been authorized by the Governor of the prison where the prisoner was serving his term of imprisonment. Justice Charles when discussing the power of the Governor under the relevant sections of the Corrections Act 1986 (Vic) supported the remarks of the trial judge of the ‘difficulty of the task faced by the governor of the prison, and the fact that the carrying out of that task may be achieved in circumstances often very difficult and requiring decisive action’.[149] His Honour then virtually excludes the ability of the court to oversee the power of the governor when it is suggested that ‘the court is obviously not as well-equipped as the governor of a prison to know what is reasonable and properly adapted’[150]. Where such an analysis of the court’s role leaves prisoners who may be subject to intrusive intervention by correctional administrators is not considered by the judgments in Binse v Williams, although it is clear that before the court would intervene it would seem to require that the expert judgment of the correctional administrator has been mistaken, or made in bad faith. As a matter of logic, however, it would not be possible for the court to assess whether or not the application of that expert judgment to a particular factual situation has miscarried as it is implicit that the court has precluded itself from the assessment of whether the actions of the governor are appropriate because it is ‘not as well-equipped as the governor of the prison’.[151] The implications of such an assessment of the expertise of correctional administrators will be considered further in the next section.
The claim put forward by courts that they do not possess sufficient ‘expertise’ to regulate the actions of correctional administrators, allows such administrators not to be bound by clear and objective standards; but, instead, by their subjective and potentially idiosyncratic assessments of where the balance should lie between the ends of correctional administrators and the rights of prisoners. What this approach ignores is that the management of a prison is not a science but rather the making of practical judgments in an environment where one group exercises a considerable amount of power over another.
The empirical research conducted on the styles of prison management demonstrate that the leadership and administrative characteristics of penal institutions are not uniform and consistent between institutions but are, instead, often the product of the interpretation by particular administrators of the correctional enterprise and the residual liberty interest of prisoners available to prisoners as a result of that particular interpretation. Sociologist John Dilulio in his comparative account of the management styles in three American prisons, Governing Prisons,[152] had as his central premise that ‘the quality of prison life varies according to the quality of prison management’.[153] Dilulio also articulated what he conceived were the three distinct ways, or philosophies, that correctional administrator’s employ to balance the need for good order and security within the institution with the humane treatment of inmates.[154]
The significance for our purpose when considering Dilulio’s account of prison management lies not in the particular content of the three models of prison management, but that the variation is so stark between correctional administrators who ostensibly undertake the same end: the humane and secure treatment of prisoners according to law. What Dilulio’s account of prison management makes clear is that correctional practices are not uniform, static and consistent over time but vary immensely between institutions. Thus for courts to refer to the ‘expertise’ of correctional administrators may be for them to rely on a fallacious assumption that prison management is an universal phenomena instead of, if Dilulio’s account is accepted,[155] being a more particular and institution based practice. It also makes explicit that correctional management and the working philosophy adhered to by correctional administrators is more akin to a craft rather than anything approaching a body of knowledge that would prima facie exclude others because of an unfamiliarity with its fundamental concepts and principles. The art of governing prisons is not the application of a body of knowledge, but rather the making of practical judgements within the constraints of the particular factual situations produced by the unique features of the prison environment. Thus for a court to claim that they lack the necessary expertise to intervene in the management of correctional institutions may be mistaken and at odds with the realities of prison management in practice.
The law has the potential to have a decisive impact on a social practice such as the administration of correctional institutions. That potential is however subject to wider non-legal power relations which may also impact on the legal order and affect the way in which the legal system characterises the position of prisoners. The community inflicts that type of punishment to achieve the ends of the criminal process: deterrence, retribution, denunciation, rehabilitation or a combination of such ends[156]. In order to punish an alleged offender the law has developed an extensive jurisprudence to regulate the treatment of the suspect, commencing from the investigation of the offence through to the trial process and to the sentencing hearing. The law does so to accord those charged with criminal offences a fair trial according to law,[157] and to ensure that impropriety or allegations of unfairness do not taint the treatment of suspects. In short, the law by the articulation and prescription of the pre-trial, and trial procedures and norms attempts to ensure that any decision that is made which may potentially affect the liberty of a person only occurs after the correct procedures have been complied with.
However, upon conviction and the sentence to a term of imprisonment what rights the citizen previously enjoyed are denuded to the extent necessary to operate the correctional institution. Moreover, correctional administrators tend to operate prisons in a manner that privileges the end of the good order and security over the ability of prisoners’ to function in an autonomous and self directed manner. This of itself, given that security and good order are ends that are collective in character, has augmented the vulnerability of prisoners to policies which may not give sufficient notice to their interests as right bearing individuals. The hands off approach to prisoners’ rights had as its fundamental premise that the law should not intervene on behalf of prisoners because of a belief that a number of undesirable consequences would result for correctional administrators. The vulnerability that is engendered as a result of a term of imprisonment was an aspect of prison life that the hands off approach ignored. The result of this approach was to leave prisoners outside the protection of the law and to expose them to decision making which was subjective, inconsistent and lacking the basic attributes of natural justice and due process.[158]
The shift away from the hands off doctrine was not, it is submitted, solely attributable to moves in the interpretation of prisoners rights by the law but occurred in the context of wider social developments such as the influence of the human rights discourse and also the rise of administrative accountability which imposed obligations on government agencies to ensure that their processes under which they made decisions were congruent with evolving conceptions of natural justice. Moreover, the administration of prisons is reflected by shifting conceptions as to the causes of criminality and the alleged utility of certain programs in reducing the level of offending in a community.
Despite this shift by the law, and its willingness now to intervene into the hitherto closed area of prison administration, the degree of deference that is accorded to the ‘expert judgment’ of correctional administrators permits a defacto return to the unchecked discretion of the hands off doctrine on the problematic assumption that such administrators are best placed to determine the balance between the competing ends of good order and security and the welfare and rights of prisoners. The art of prison governance is not so much about expertise but the making of practical judgments in an environment that operates on premises that are antipathetic to the normal relations between citizens and the government in civil society. To privilege correctional administrators account of the prison order is to allow correctional administrators, rather than the courts, to determine where the balance ought to lie between the interests of correctional administrators to maintain good order and security and the need to allow prisoners’ that degree of autonomy that is consistent with the incidents of imprisonment.
[∗] BA LLB (Hons) Dip Crim (Melb), Solicitor, Victorian Aboriginal Legal Service. Address for Correspondence: PO Box 218 Fitzroy 3065 Victoria, Australia. Thanks to the anonymous referees who provided reviews of an earlier version of this article. Their critical comments were gratefully received. Of course, all remaining errors and omissions are mine.
[1] For an overview of the literature on prisoners and their relationship to the Australian legal system see Hawkins G Prisoners’ Rights: A Study of Human Rights and Commonwealth Prisoners (Australian Government Publishing Service, 1986). Also see Birtles T ‘Prisoners’ Rights in Australia’ (1989) 22 ANZJ Crim 202. For comparative approaches to prisoners’ rights see Fowles A Prisoners’ Rights in England and the United States (Avebury, Brookefield, 1989); Vagg J Prison Systems: A Comparative Study of Accountability in England, France, Germany and the Netherlands (Clarendon Press, New York, 1994).
[2] Rhodes v Chapman [1981] USSC 144; (1981) 452 US 337 at 346 per Powell J.
[3] For instance, in Ancient Greece punishment by imprisonment amounted to a type of social or civil death whereby the citizen was divested in toto of the rights possessed as a free citizen. See Peters E ‘Prison Before the Prison: The Ancient and Medieval Worlds’ in Morris N & Rothman D (eds) The Oxford History of the Prison (Oxford University Press, New York, 1995) pp 4-8. The notion that once imprisoned a person forgoes certain other rights figured prominently in nineteenth-century English criminal law. For instance, forfeiture of an offender’s property was historically a major aspect of English criminal law for felony offences through the concept of attainder that remained part of English law until 1870. Attainder provided that upon conviction for certain offences the property of the defendant would be forfeited to the Crown, and in the case of defendants who were executed their dependants would be disinherited of any property that subsisted with the defendant at the time of his or her death. See generally, Baker J An Introduction to English Legal History (2nd ed) (Butterworths, London, 1979) pp 412-13; Windeyer W Lectures on Legal History (2nd ed) (Law Book Company, Sydney, 1957) pp 69-70. Other rights foregone by prisoners included the right to sue. The loss of this right for a prisoner who had a sentence of death converted to penal servitude for life was affirmed by the majority of the High Court of Australia in Dugan v Mirror Newspapers Limited [1978] HCA 54; (1979) 142 CLR 583. In that case Darcy Dugan had commenced an action in the New South Wales Supreme Court alleging that the defendants had defamed him in a newspaper article. By way of defence the defendants pleaded that Dugan, because he had been sentenced to death, even though that sentence had been converted to one of life imprisonment, he was prevented from suing as long as the attainder endured. The majority of the High Court agreed and suggested that the unsatisfactory outcome produced by the remnants of portions of United Kingdom law existing in New South Wales from the nineteenth-century was a matter for the legislature. See Dugan v Mirror Newspapers Limited [1978] HCA 54; (1979) 142 CLR 583 at 586 per Barwick CJ. The dissenting judgment by Justice Murphy in Dugan’s case makes clear the repugnance to modern standards of the idea of civil death. Justice Murphy notes that:
The main objection to recognizing the civil death principles as existing common law
principles is that in treating persons as non-persons, that is, dehumanizing them , the
principles violate the fundamental standards of human rights and are inconsistent with
the rehabilitative goals of our criminal justice system (at 611).
Prisoners in Australia now have capacity to sue. Note that correctional administrators owe prisoners, and thus are bound by, a duty of care to ensure their safety and welfare whilst in custody. See Ellis v Home Office [1953] 2 All ER 149; Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177; Hall v Whatmore [1961] VR 229; L v Commonwealth (1976) 10 ALR 269.
[4] A number of developments may be suggested to account for the improved treatment of prisoners, at least in the jurisdictions under consideration, in the latter half of this century. For instance, the flourishing of the international human rights law movement after World War Two and the use of human rights standards to critique the actions of governments played a role in improving the positions of prisoners. The significance of the human rights project for prisoners is its fundamental moral claim that all persons, regardless of their status, are entitled by virtue of their humanity to be accorded basic human rights. See Nickel J Making Sense of Human Rights (University of California Press, Berkeley, 1987); Leuprecht P ‘Reflection on Human Rights’ (1988) 9 Human Rights Law Journal 163; Gorecki J ‘Human Nature and the Justification of Human Rights’ (1989) 34 American Journal of Jurisprudence 43. In addition, because human rights law was international in scope the sovereignty that nation-states claimed over the treatment of their own citizens was challenged and subject to a standard and jurisdiction that was international in scope. For an analysis of this development and the implications for the sovereignty of nation-states see See Sohn L ‘The New International Law: Protection of the Rights of Individuals rather than States’ (1982) 32 American University Law Review 1. Another development was in the social sciences, which viewed crime through a perspective that did not assume that criminal behaviour was the product of individual malevolence, but may be due to wider social and economic forces. The implications for prisoners of this shift of thinking was the introduction of programs into prisons that were explicitly therapeutic and sought by such intervention to act as a facilitator of the rehabilitation of the individual through altering the nature of the prison regime. See Lilly J, Cullen F & Ball R Criminological Theory: Context and Consequences (Sage, Thousand Oaks, 1995). For an analysis of the changing conceptions of criminality and the nature of the State response over time see Cohen S Visions of Social Control (Polity, Cambridge, 1985); Feeley M & Simon J ‘The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications’ (1992) 30 Criminology 449. It must also be noted that there has been, especially in the United States context, a move back to individual theories of criminality that place less emphasis on the social and economic context of offending. See, for instance, Cornish D & Clarke R The Reasoning Criminal: Rational Choice Perspectives on Offending (Springer, 1986); Gottfredson M & Hirschi T A General Theory of Crime (Stanford University Press, Stanford, 1990); Wilson JQ & Herrnstein R Crime and Human Nature (Simon & Schuster, New York, 1985). This shift in perspective has had effects on the nature of the prison regime in some jurisdictions in the United States with the adoption of ‘no frills’ prisons which are characterized by the removal of a number of amenities (for instance, in-cell coffee pots, gymnasium equipment, televisions and so on) that would make the experience of imprisonment more bearable. See Johnson W, Bennett K & Flanagan T ‘Getting Tough on Prisoners: Results From the National Corrections Executive Survey, 1995’ (1997) 43 Crime & Delinquency 24 at 26-27.
[5] Sandery v State of South Australia (1987) 48 SASR 500 at 509 per Olsson J.
[6] The issue of prisoners’ rights is part of a general debate on the nature and value of ‘rights’ in contemporary society and the ability of rights to act as agent of social change and tool of empowerment for marginalised groups within the community. See generally Milner N ‘The Denigration of Rights and the Persistence of Rights Talk: A Cultural Portrait’ (1989) 14 Law and Social Inquiry 631; Hunt A ‘Rights and Social Movements, Counterhegemonic Strategies’ in Hunt A Explorations in Law and Society: Toward a Constitutive Theory of Law (Routledge, New York, 1993) pp 227-48. Other scholars have suggested that ‘rights talk’ offers an impoverished account of human existence and distorts the nature of human relationships. See, for instance, Ignatieff M The Needs of Strangers (Vintage, London, 1984) pp 13-14. The idea of rights and their ability to reconfigure social relations has been a central concern of contemporary legal scholarship, particularly from the Critical Legal Studies Movement and some feminist legal scholars who have challenged the premise that rights are valuable as a means to counter injustice and oppression. See, for instance, Gabel P ‘The Phenomenology of Rights Consciousness and the Pact of the Withdrawn Selves’ (1984) 62 Texas Law Review 1563; Tushnet M ‘An Essay on Rights’ (1984) 62 Texas Law Review 1363; Hunt A ‘The Theory of Critical Legal Studies’ (1986) 6 Oxford Journal of Legal Studies 1; Hutchinson A & Monahan P ‘The Rights Stuff: Roberto Unger and Beyond’ (1984) 62 Texas Law Review 1477; Olsen F ‘Statutory Rape: A Feminist Critique of Rights Analysis’ (1984) 63 Texas Law Review 387; Schneider E ‘The Dialectics of Rights and Politics’ (1986) 61 New York University Law Review 589; West R ‘Jurisprudence and Gender’ (1988) 55 University of Chicago Law Review 1; Williams P ‘Alchemical Notes: Reconstructing Ideals from Deconstructed Rights’ (1987) 22 Harvard Civil Rights-Civil Liberties Review 402.
[7] The ability of prisoners to enforce those rights that are not removed as a result of a term of imprisonment is as important as the existence of those rights. It is beyond the scope of this paper to consider how the indigent status of most prisoners may impact on the capacity of the law to protect prisoners. As to how limited financial resources may exclude participation in the legal process see Sackville R Legal Aid Needs of the Poor (Australian Government Printing Service, 1974). Moreover, the issue of prisoners’ rights consciousness is an empirical matter and awaits further research as to what factors may encourage, or deter, prisoners from using the formal legal process. For an example of this type of research in the context of victims of domestic violence and their recourse to the law for protection see Bumiller K ‘Victims in the Shadow of the Law: A Critique of the Model of Legal Protection’ (1983) 12 Signs 421. A lack of financial resources has not excluded prisoners entirely from the legal process. The phenomena of ‘jailhouse lawyering’ which refers to the practice of prisoners who have proficiency in legal matters who initiate proceedings on behalf of others and themselves and thus circumvent their limited financial position. For an examination of this phenomena and the wider social implications of this practice as a means of empowerment for prisoners see Milovanovic D & Thomas J ‘Overcoming the Absurd: Prisoner Litigation as Primitive Rebellion’ (1989) 36 Social Problems 48 at 50-51. Also see Milovanovic D ‘Jailhouse Lawyer and Jailhouse Lawyering’ (1988) 16 International Journal of the Sociology of Law 455; Mikat H & Thomas J ‘The Dialectics of Prisoner Litigation: Reformist Idealism or Social Praxis?’ (1988) 15 Social Justice 48.
[8] It is important to make clear that this article does not purport to be a comprehensive treatment of what the law is in the three jurisdictions under consideration in terms of providing an exposition of the law of each of the state jurisdictions in those respective countries. Rather, as indicated at the outset, the intention here is to highlight in a broad and general manner the shift in the legal interpretation and characterization of prisoners’ rights in those jurisdictions.
[9] Jacobs J ‘The Prisoners’ Rights Movement and Its Impacts, 1960-80’ in Morris N & Tonry M (eds) Crime and Justice: An Annual Review of Research (University of Chicago Press, Chicago, 1980) pp 429-69. Also see Huff R ‘The Development and Diffusion of Prisoners Movements’ (1976) 56 Prison Journal 4.
[10] Jacobs, above note 9, pp 431-2.
[11] See Foucault M ‘Truth and Power’ in Power/Knowledge: Selected Interviews &Other Writings, Gordon C (ed) (Pantheon, Sussex, 1980):
I don’t want to say that the State isn’t important; what I want to say is that
relations of power, and hence the analysis that must be made of them, necessarily
extend beyond the limits of the State. In two senses: first of all because the
State, for all the omnipotence of its apparatuses, is far from being able to occupy
the whole field of actual power relations. The State is superstructural in relation
to a whole series of power networks that invest the body, sexuality, the family,
kinship, knowledge, technology and so forth (at p 122).
See also Foucault M Discipline and Punish (Pantheon, New York, 1975) pp 24-7; Foucault M The History of Sexuality (Pantheon, New York, 1978) pp 89-102; Foucault M ‘The Subject and Power’ in Dreyfus H & Rabinow P (eds) Michel Foucault: Beyond and Structuralism & Hermeneutics (University of Chicago Press, Chicago, 1983) pp 208-26. For a greater exposition and analysis of Foucault’s position on power see Wolin S ‘On the Theory and Practice of Power’ in Arac J (ed) After Foucault: Humanistic Knowledge, Postmodern Challenges (Rutgers University Press, New Brunswick, 1988) pp 179-201. Also see Turkel G ‘Michel Foucault: Law, Power and Knowledge’ (1990) 17 Journal of Law and Society 170.
[12] See Burns H ‘A Miniature Totalitarian State: Maximum Security Prison’ (1969) 11 Canadian Journal of Criminology & Corrections 153. For an analysis as to how prison regimes may be normalized and made more democratic see Toch H ‘Democratizing Prisons’ (1994) 73 Prison Journal 62.
[13] The idea that a State may legitimately use violence on its citizens is captured in Max Weber’s oft cited phrase that the State claims for itself ‘the monopoly of the legitimate use of physical force within a given territory’. In Weber M ‘Politics as a Vocation’ in Gerth H & Mills C W (eds) From Max Weber: Essays in Sociology (Routledge & Kegan Paul, London, 1970) p 78. For a perspective on the legal order that posits the inseparability of law and violence, even in the absence of explicit violence, as a necessary and sufficient condition of the law’s existence see Cover R ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601.
[14] For instance, in Victoria the Corrections Act 1986 (Vic) provides that the officer in charge of the prison has certain statutory duties in relation to the administration of the prison. Section 20 of the Act titled ‘Duties Relating to Security and Welfare’ requires that that officer must take all reasonable steps to ensure the security of the prison. In addition, s 20 requires that the officer must take all reasonable steps for the safe custody and welfare of prisoners under his or her control. The duties of the officer in charge of the prison are further elaborated in s 21 (1) of the Act which require that he or she must ensure ‘the management, security and good order of the prison and the safe custody and welfare of the prisoners’. What such statutory provisions emphasize are the conflicting objectives, or ends, imposed upon correctional administrators. That is, they must ensure both the security of the prison and the welfare and safe custody of prisoners under their control. What is significant for our purpose is that although both statutory duties relating to security and welfare are couched in mandatory terms it is not specified in the legislation how conflicts between security and welfare are to be resolved, nor how the balance ought to lie between these divergent objectives. For judicial consideration of ss 20-1 of the Corrections Act 1986 (Vic) see Binse v Williams [1998] 1 VR 381 at 391-394 per Charles J.
[15] Dworkin R ‘Liberalism’ in A Matter of Principle (Harvard University Press, Cambridge, 1985) pp 181-204. Also see Dworkin R ‘Liberal Community’ (1989) 77 California Law Review 479 at 503-504.
[16] Aristotle, Politics, translated by Barker E (Oxford University Press, Oxford, 1995) Book 1, 1252a1, and 1260b8. Also see Taylor C ‘Politics’ in Barnes J (ed) The Cambridge Companion to Aristotle (Cambridge University Press, New York, 1995) pp 235-43; Mulgan R Aristotle’s Political Theory (Clarendon Press, Oxford, 1977).
[17] Dworkin, above note 15, at pp 191-2.
[18] See generally De Marnefee P ‘Liberalism, Liberty, and Neutrality’ (1990) 19 Philosophy & Public Affairs 253.
[19] Livingstone S & Owen T Prison Law: Texts & Materials (Clarendon Press, Oxford, 1993) pp 288-99.
[20] See generally Sievers E ‘Prison Security Issues’ in Biles D (ed) Current Australian Trends in Corrections (Federation Press, Sydney, 1988) pp 140-7.
[21] Sparks R, Bottoms A & Hay W Prisons and the Problem of Order (Clarendon Press, Oxford, 1996) p 2.
[22] Lilulio D Governing Prisons: A Comparative Study of Correctional Management (Free Press, New York, 1987). According to Dilulio this is the idea encapsulated in the ‘keeper philosophy’ of correctional management. This philosophy, at pp 167-74, is composed of a number of strands including the idea that prisoners are not to suffer pain beyond the deprivation of liberty and that regardless of the offence for which the prisoner is incarcerated he or she should be treated humanely and according to law. The aim of such an approach to correctional management is to provide a prison regime that is secure, humane and productive. Also see Wright M Making Good: Prisons, Punishment & Beyond (Burnett, London, 1982) pp 51-9.
[23] Kalinich D & Pitcher T Surviving in Corrections: A Guide for Corrections Professionals (Charles Thomas, Springfield, 1984) p 34.
[24] The collective nature of the prison environment and the need for correctional administrators to act in a manner which might impact on the individual interests of prisoners, but produce satisfactory consequences for the majority is put forward in a number of State Supreme Court decisions. See, for instance, McEvoy v Lobban (1989) 48 A Crim R 412 which was a case concerned with a prisoner who had been segregated from the mainstream prison population because of a belief that he would encourage other prisoners to act in a violent and disruptive manner. Significantly the prisoner was not alleged to have committed any prison offence or engaged in acts that were contrary to the good order, security and management of the prison; it was merely suspected that he would. Macrossan J, upheld the validity of that decision to segregate the prisoner because correctional administrators were required to act ‘in the interests of the prison as a whole’ (at 413). Thomas J noted that correctional administrators had to act to ‘protect the whole prison community’ (at 418). Moreover for Thomas J, there were clear reasons justifying the correctional administrators actions in this case as:
...it would be highly irresponsible for a prison authority with reason to suspect the
possibility of serious violence, to stand by and take no action because it lacked legally
admissible evidence to prove an offence or specific breach of prison discipline, when
the segregation of a few key people might prevent untold injury, distress and danger (at 416).
See also the dicta of Dunford J in Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 which was a case concerning a prisoner who had sought an injunction preventing the Commissioner from placing him in another correctional facility. Dunford J stated that:
The Commissioner’s duty is to place not only the plaintiff but all prisoners where they
are best suited by reference to security, availability of accommodation and other facilities’
good management, provision of rehabilitation and the competing needs of other prisoners (at 89).
[25] For an account of utilitarianism and its core principle that the greatest good for the greatest number is a morally defensible method of justifying human conduct see Goodin R ‘Utility and the Good’ in Singer P (ed) A Companion to Ethics (Basil Blackwell, Oxford, 1991) pp 241-8.
[26] Dworkin R Taking Rights Seriously (Duckworth, London, 1977) pp 184-205. In this chapter Dworkin makes clear that in the liberal society envisioned by his account of the rights of citizens, particularly those with a minority or unpopular viewpoint, would not be able to be traded off, and their rights not recognized, because they would secure the well being for the majority of the community. Put simply, the rights possessed by individuals were not to be subject to the contingent satisfaction of the interests of the welfare of the community.
[27] Examples of rights, which are curtailed due to the particular security exigencies of the prison environment, are the right to property and the right to privacy. For instance, in all States and Territories in Australia prisoners are required to surrender all property upon reception. See Corrections Regulations 1998 (Vic) reg 27 (1); Prison Regulations 1985 (Tas) reg 7 (2); Prison Regulations 1982 (WA) reg 35; Correctional Services Act Regulations 1985 (SA) reg 54; Remand Centre Regulations 1976 (ACT) reg 7 (1), (4); Corrective Services Act 1982 (Qld) ss 17, 20; Crimes (Administration of Sentences) Act 1999 (NSW) s 75 (1). A prisoner must then await the decision by administration as to whether or not he or she may retain certain property and the amount of such property. See Corrections Regulations 1998 (Vic) reg 30 (1); Prison Regulations 1985 (Tas) reg 7 (3); Prison Regulations 1982 (WA) reg 35 (3); Correctional Services Act Regulations 1985 (SA) reg 5, 6; Remand Centre Regulations 1976 (ACT) reg 7 (1), (4); Prisons (General) Regulations 1995 (NSW) reg 29, 32, 61; Corrective Services Act 1982 (QLD) ss 17, 20. In relation to the right of privacy the majority of the United States Supreme Court in Hudson v Palmer [1984] USSC 169; (1984) 468 US 517 held that prisoners had no reasonable expectation of privacy in his or her prison cell entitling him or her to the protection of the Fourth Amendment of the United States Constitution concerning unreasonable search and seizures. Chief Justice Burger as part of the majority, at 523-526, emphasized that whilst prisoners’ enjoyed the protections of the Constitution that are not inconsistent with the incidents of imprisonment, it would be nearly impossible for correctional administrators to prevent the introduction of weapons, drugs and other contraband into prisons should inmates retain a right to privacy in their cells.
[28] However it must be noted that there is some commonality of interests in that prisoners’ too may value order and security, albeit for different reasons. The prison maxim ‘do your own time’ is predicated on the notion that every prisoner, if he or she wishes, should be allowed by other prisoners to complete his or her term of imprisonment with a minimum of intrusion from correctional staff and other inmates. On this aspect of prison subculture see Irwin J The Felon (Prentince Hall, Englewood Cliffs, 1970) pp 68-70.
[29] The literature on this phenomenon of prison life is significant. Apart from a description of the norms, values and behaviour of the prison subculture, the most significant debate is whether these values and norms derive from the prison environment itself, or is the mere superimposing of the values of the criminal subculture onto the prison system. For an overview of this debate see Thomas C ‘Theoretical Perspectives on Prisonization: A Comparison of the Importation and Deprivation Models’ (1977) 68 Journal of Criminal Law & Criminology 135 at 144-145. On the nature of the prison subculture see Clemmer D The Prison Community (Holt, Rhinehart & Weston, New York, 1940); Sykes G The Society of Captives (Princeton University Press, Princeton, 1958); Bowker L Prisoner Subcultures (Lexington Press, Lexington, 1977). For some empirical accounts of the prison subculture see Garabedian P ‘The Natural History of an Inmate Community in a Maximum Security Prison’ (1970) 61 Journal of Criminal Law, Criminology & Police Science 78; Garofalo J & Clark R ‘The Inmate Subculture in Jails’ (1985) 12 Criminal Justice & Behaviour 415; Grapendaal M ‘The Inmate Subculture in Dutch Prisons’ (1990) 30 British Journal of Criminology 341; Kaminski M & Gibbons D ‘Prison Subculture in Poland’ (1994) 40 Crime & Delinquency 105.
[30] An example of such resistance is the distinctive prison language or argot. For an account of the role of language in the prison subculture see Cardozo-Freeman I The Joint: Language and Culture in a Maximum Security Prison (Charles Thomas, 1984). According to Cardozo-Freeman, the use of distinctive language by prisoners reflects the social reality of their lives whilst in custody because:
...their daily existence is filled with ugliness, they do not fear ugly language. Prisoners
tell the ugly truth because for them the truth is ugly, whereas most people in conventional
society tend to hide the awful truths from themselves through euphemistic language in
order to protect themselves. But it takes ugly words to accurately reflect ugly truths. The
prisoner’s condition is violent, obscene, and offensive, and so is much of his language. When
in hell, one uses hellish language (pp 28-9).
Also see Wittenberg P ‘Language and Communication in Prison’ (1996) 60 Federal Probation 45. For a catalogue of prison argot see Anderson T Inside Outlaws: A Prison Diary (Redfern Legal Centre, Sydney, 1989) pp 141-60. Gresham Sykes in The Society of Captives (Princeton University Press, Princeton, 1958), pp 85-6, suggests that prison argot is a means by which prisoners not only distinguish the experiential nature of prison life, but also has an instrumental role in that may also allow prisoners to keep hidden behaviour that is contrary to the good order and security of the institution.
[31] An example of this phenomenon is contraband that is the market for goods and services that operate illegally and in spite of the security provisions of a prison. That there exists such a market is an example of prisoners’ adaptation to one of the core privations in prison life: the deprivation of goods and services. See Kalnich D & Stojkovic S ‘Contraband: The Basis for Legitimate Power in a Prison Social System’ (1985) 12 Criminal Justice & Behaviour 435, at 446-8. Also see Kalinich D & Stojkovic S ‘Prison Contraband Systems: Implications for Prison Management’ (1987) 10 Journal of Criminal Justice 1.
[32] Foucault M The History of Sexuality (Pantheon, New Jersey, 1978) p 94. Also see Sparks, Bottom & Hay, above note 21, pp 53-4.
[33] This vulnerability has been recognized in a number of Supreme Court of Victoria decisions. See Binse v Governor HM Prison Barwon (1995) 8 VAR 508 at 515 per Byrne J; Rich v Gronigen [1997] VSC 35; (1997) 95 A Crim R 272 at 284-5 per Gillard J. Also see Hawkins G ‘Prisoners’ Rights’ (1986) 19 ANZJ Crim 196 at 203-4.
[34] Zdenkowski G ‘Judicial Intervention in Prisons’ [1980] MonashULawRw 7; (1980) 6 Monash University Law Review 294 at 296.
[35] Note that there are different types of prisons with different levels of security. Correctional administrators have catalogued prisons as being of three types, with variance between institutions a function of the level of security at the facility and also the type of prisoners that are classified to that facility. Those levels of security are: maximum, medium and minimum. Prisoners are allocated to different institutions in an internal administrative process known as classification. Classification is an important means of social control within a prison and is based on a number of factors, inter alia, sentence length, offence type, institutional record, health, prisoner preference, family ties, drug use, protective concerns, psychological or intellectual disability and so on. On the importance of the classification process for the prison order see Warren M ‘Classification of Offenders As an Aid to Efficient Management and Effective Treatment’ (1962) 62 Journal of Criminal Law, Criminology & Police Science 239.
[36] Goffman E Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Doubleday, New York, 1961) pp 3-124.
[37] Goffman, above note 36, pp 5-6.
[38] The vulnerability engendered by this isolation is recognized in those States and Territories which provide for an official visitor who has the function of attending at prisons at regular intervals to communicate with prisoners and to forward any complaints to the officer in charge of the prison and, if necessary, to the responsible Minister for corrections in that State or Territory. See Corrections Act 1986 (Vic) s 35 (1), Corrections Regulations 1998 (Vic) reg 56 (1)-(4); Remand Centres Act 1976 (ACT) s 6A; Prison (Correctional Services) Act 1980 (NT) ss 22-24; Corrective Services Act 1988 (QLD) ss 22-24; Crimes (Administration of Sentences) Act 1999 (NSW) Sch Four; Prisons (General) Regulations 1995 (NSW) reg 132-134; Prisons Act 1981 (WA) ss 54-55; Prison Act 1977 (Tas) s 10. Other categories of persons who are able access prisons in particular States and Territories are Judges, Magistrates and the Ombudsman. See Corrections Act 1986 (Vic) ss 33-34; Remand Centres Act 1976 (ACT) s 27; Prison (Correctional Services) Act 1980 (NT) s 39 (a), (d); Prisons Act 1981 (WA) s 57; Prison Act 1977 (Tas) s 11 (1)(a). In South Australia and Queensland there are no provisions for Judges and Magistrates to access prisons and in New South Wales, Tasmania, South Australia and Queensland there is no provision for the Ombudsman.
[39] Sykes G The Society of Captives (Princeton University Press, Princeton, 1958) pp 63-78. Those pains of imprisonment are, according to Sykes, manifested by the following features which are endogenous to the prison environment: deprivation of liberty; deprivation of goods and services; deprivation of heterosexual relationships; deprivation of security; and deprivation of autonomy. Also see, in the context of long term imprisonment Flanagan T ‘The Pains of Long-Term Imprisonment’ (1980) 20 British Journal of Criminology 148. For personal accounts by prisoners on the experience of imprisonment see Hopkins E ‘Lockdown’ (1997) The New Yorker, February 24 & March 3, pp 66-72; Mooney R ‘Bluestone Shadows’ (1997) The Sunday Age, 14 September, p 5; Abbott J In the Belly of the Beast (Vintage, New York, 1981); O’Meally J The Man They Couldn’t Break (Unicorn, Melbourne, 1978); Norman F Bang to Rights (Hogarth Press, London, 1987); Eastwood E Focus on Faraday and Beyond (Couer de Lion, Australia, 1987); Boyle J ‘Return to the Hate Factory’ (1992) Guardian Weekly, July 19, p 25; Hoskison J Inside: One Man’s Experience of Prison (John Murray, 1998); Parker T (ed) Life After Life: Interview with Twelve Murderers (Secker & Warburg, London, 1990); Parker T (ed) The Violence of Our Lives: Interviews with Life-Sentence Prisoners in America (Harper Collins, 1995). Also see Drapkin I ‘Prison Inmates as Victims’ (1976) 1 Victimology 98.
[40] On the relationship between rights, autonomy and the achievement of the moral personality see Richards D ‘Rights and Autonomy’ (1981) 92 Ethics 3 at 19.
[41] See Dalton V Prison Homicide in Australia: 1980-1998 (Australian Institute of Criminology, 1999). Also see O’Donnell I & Edgar K ‘Routine Victimization in Prisons’ (1998) 37 Howard Journal of Criminal Justice 266. In this British study, the authors found within the English prisons that were studied that victimization was ritualized and seemingly a ‘normal’ part of the prison order. It is also important to note that it is not only the actual victimization that may have an adverse effect on a prisoner, but also his or her fear of such victimization. See McCorkle R ‘Living on the Edge: Fear in a Maximum Security Prison’ (1993) 20 Journal of Offender Rehabilitation 73. In relation to violence inflicted by a prisoner upon another prisoner the Victorian Supreme Court has held that in sentencing offenders for prison offences as a matter of public policy general deterrence ought to be the primary consideration. See R v Allen and Jackson (1994) 77 A Crim R 99 at 120.
[42] Marquart J ‘Prison Guards and the Use of Physical Coercion as a Mechanism of Prisoner Control’ (1986) 24 Criminology 347 at 350-355; Bowker L ‘An Essay on Prison Violence’ (1983) 63 Prison Journal 24 at 30-31; Edney R ‘Prison Officers and the Use of Violence’ (1997) 22 Alternative Law Journal 289 at 290-291. Also see Scraton P, Sim J & Skidmore P Prisons Under Protest (Open University Press, Philadelphia, 1991); Gilligan J Violence: Our deadly epidemic and its causes (GP Putnam’s Sons, New York, 1996) pp 159-61.
[43] For an overview of the potential civil liability of correctional administrators’ to prisoners who are exposed to the HIV/AIDS virus see Malkin I ‘Tort Law’s Role in Preventing Prisoners’ Exposure to HIV Infection While in Her Majesty’s Custody’ [1995] MelbULawRw 26; (1995) 20 MULR 423 at 441-453.
[44] See generally Bukstel L & Kilmann P ‘Psychological Effects of Imprisonment on Confined Individuals’ (1980) 88 Psychological Bulletin 469; Van Voorhis P ‘Psychological Determinants of the Prison Experience’ (1993) 73 Prison Journal 72. For a consideration of the psychological problems that may result for prisoners serving substantial terms of imprisonment see Sapsford R ‘Life-Sentence Prisoners: Psychological Changes During Sentence’ (1978) 18 British Journal of Criminology 128; Cohen S & Taylor L Psychological Survival: The Experience of Long-Term Imprisonment (Penguin, Harmondsworth, 1972).
[45] Grassian S ‘Psychopathological Effects of Solitary Confinement’ (1983) 140 American Journal of Psychiatry 1450.
[46] In the United Kingdom there is judicial authority for the proposition that a prisoner of sound mind may refuse food and water, even if such a course of action will lead to the prisoners’ death. See Secretary of State for the Home Department v Robb [1995] 2 WLR 722 at 727 per Thorpe J. In New South Wales there is however authority that prison authorities have the power to force feed a prisoner who is refusing food and water. See Schneidas v Corrective Services Commissioner (unreported, NSW Supreme Court, 4082/83, 8 April 1983, Lee J). In addition s 73 of Crimes (Administration of Sentences) Act 1999 (NSW) grants a power to medical officers to carry out medical treatment without consent of the prisoner. If such procedures are carried out the statutory provision deem that the prisoner is taken to have ‘consented’ to such treatment. The issue of force feeding of prisoners, and also the right of a prisoner to refuse medical treatment, raises the issue of paternalism and the extent of the State interest in preventing prisoners from harming themselves versus the cost to the dignity of the individual prisoner to choose his or her own good and to make that decision unencumbered by the claims of the community.
[47] For an empirical account of prison suicide and its etiology see Morrison S ‘Custodial Suicides in Australia: A Comparative Study of Different Populations’ (1996) 36 Medicine, Science, Law 167.
[48] See Jones A ‘Self-Mutilation in Prisons’ (1986) 13 Criminal Justice & Behaviour 286; Lloyd C Suicide and Self-Injury in Prison: A Literature Review (HMSO, 1990).
[49] See Edney R ‘Overcrowded Prisons, Degraded Prisoners: Res Ipsa Loquitor’ [2000] DeakinLawRw 4; (2000) 5 Deakin Law Review 81.
[50] Above note, pp 83-4.
[51] See Nickel, above note 4. In Australia international instruments such as the International Convention on Civil and Political Rights (ICCPR) which came into force for Australia on 30 November 1980, have no effect on Australian municipal law unless expressly adopted by federal or state legislatures. Such a covenant may however be of use where there is ambiguity as to how legislation or common law is to be interpreted. The High Court of Australia has expressly approved the use of such instruments to resolve such ambiguity: see Dietrich v Queen [1992] HCA 57; (1992) 177 CLR 292; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J; Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291 per Mason CJ & Deane J. Also see Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 272-276 per Kirby P. A prisoner who complains that his or her rights have been violated may petition the United Nations Human Rights Commission pursuant to the First Optional Protocol of the ICCPR. The Protocol was ratified by Australia and came into force on 25 December 1991. Relevant provisions of the ICCPR that have particular relevance for prisoners include art 7 which ‘prohibits the infliction of torture or cruel, inhuman or degrading treatment or punishment’. In addition, art 10 (1) requires that persons deprived of their liberty ‘be treated with humanity and with respect for the inherent dignity of the person’. Article 10 also provides the separation of remand and convicted prisoners, a prohibition against the confinement of young defendants with adult defendants and that in the design of a prison system the dominant aim should be rehabilitation. Other relevant United Nation Conventions include the Convention Against Torture and Other Cruel, Inhuman or Degraded Treatment or Punishment. Australia ratified the Torture Convention in 1989. For examples of Australian prisoners rights case where explicit, if unsuccessful, reliance has been placed on the provisions of the ICCPR see R v Hollingshed (1993) 112 FLR 109; Collins v State of South Australia [1999] SASC 257; (1999) 74 SASR 200. See generally Triggs G ‘Australia’s Ratification of the International Covenant on Civil and Political Rights: Its Domestic Application to Prisoners’ Rights’ (1982) 3 Human Rights Law Journal 65.
[52] Zdenkowski G & Brown D The Prison Struggle (Penguin, Ringwood, 1982) pp 112-31.
[53] Bromley v Dawes (1983) 10 A Crim R 98 at 99.
[54] The notion of ‘hands off’ gained currency as a result of its use in the article Note ‘Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts’ (1963) 72 Yale Law Journal 506. For an overview of the history of the ‘hands off’ doctrine in the United States see Branham L & Krantz S The Law of Sentencing, Corrections & Prisoners Rights (5th ed) (West Publishing, 1997) pp 279-82; Willens J ‘Structure, Content and the Exigencies of War: American Prison Law After Twenty Five Years, 1962-187’ (1987) 37 American University Law Review 41 at 69-72. Note that some scholars, particularly in the United States context, have denied that courts have adopted hands off approach to prisoners rights litigation. See Wallace D ‘Prisoners’ Rights: Historical Views’ in Marquart J & Sorenson J (eds) Correctional Contexts: Contemporary Readings (Roxbury Publishing, Los Angeles, 1997) pp 248-57.
[55] Moloney G & Malkin I ‘New Dimensions in Prisoners’ Rights in Australia’ in Ellinghaus M, Bradbrook A & Duggan A (eds) The Emergence of Australian Law (Butterworths, Sydney, 1989) p 254.
[56] [1949] HCA 38; (1949) 79 CLR 1.
[57] Flynn v King [1949] HCA 38; (1949) 79 CLR 1 at 8 per Dixon J.
[58] See for examples Vezitis v McGeechan [1974] 1 NSWLR 718 at 721 per Taylor J; Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317 at 328 per Hutley JA; R v Classification Committee; Ex Parte Finnerty [1980] VicRp 53; [1980] VR 561 at 567 per Kaye J; Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87 per Dunford J.
[59] For instance the rise of the notion of ‘legitimate expectations’ in the administrative law context. The most well known statement in Australian law is the dicta of Mason J, as he then was, in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582-583. See also Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. For instances where prisoners have been successful in a submission centered on the notion of legitimate expectations see Ex Parte Fritz (1992) 59 A Crim R 132; Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490.
[60] See for instance the dicta of White J in Bromley v Dawes (1983) 10 A Crim R 98 where, it is noted that:
It may be that judicial intervention in favour of prisoners will be rare for the reasons
of policy advanced by Dixon J in Flynn. But the rarity, even the absence , of
judicial intervention does not mean that prisoners have no right to approach the courts
in any circumstances. Habeas corpus must be available in the appropriate circumstances.
A close analysis discloses in my opinion , that the door is not, and never was, closed
entirely to a prisoners claim to a right of protection such as that claimed in this case (at 107).
[61] See for instance Zdenowski G ‘ Judicial Intervention in Prisons’ [1980] MonashULawRw 7; (1982) 6 Monash University Law Review 294; Zellick G ‘The Prison Rules and the Courts’ [1981] Crim LR 602 at 614-616.
[62] Livingstone & Owen, above note 19, pp 294-95.
[64] Above note 63, at 254.
[65] Above note 63, at 255.
[67] Above note 66, at 418. For an analysis of the policy issues arising out of the decision in Becker’s case see Tettenboun A ‘Prisoners’ Rights’ (1980) Public Law 74 at 77-79.
[68] Alexander E ‘The New Prison Administrators and the Court: New Directions in Prison Law’ (1978) 56 Texas Law Review 963. Also see Hawkins G The Prison (University of Chicago Press, Chicago, 1976) pp 136-41; Morris N The Future of Imprisonment (University of Chicago Press, Chicago, 1974) pp 21-2.
[69] Alexander, above note 68, at 964.
[70] See Feeley M & Rubin E Judicial Policy Making and the Modern State: How the Courts Reformed American’s Prisons (Cambridge University Press, Cambridge, 1998) pp 30-4.
[71] Cullum v California Department of Corrections (1967) 267 F.Supp. 524 at 525; Tabor v Hardwick [1955] USCA5 435; (1955) 224 F. 2d 526 at 529. Also see Feldberg M ‘Confronting the Conditions of Confinement: An Expanded Role for Courts in Prison Reform’ (1977) 12 Harvard Civil Rights-Civil Liberties Review 367, 371.
[72] See Banning v Looney [1954] USCA10 92; (1954) 213 F.2d 771.
[73] Stroud v Swope [1951] USCA9 64; (1951) 187 F. 2d 850 at 852. Contrast the approach in this case with that in Leech v Deputy Governor of Parkhurst Prison [1988] UKHL 16; (1988) 1 AC 533 at 557 per Lord Bridge.
[74] United States ex rel. Morris v Radio Station WENR (1953) 209 f. 2d 105 at 107; Atterbury v Ragen [1956] USCA7 241; (1956) 237 F.2d 953 at 955. Also see Robbins I & Buser M ‘Punitive Conditions of Prison Confinement: An Analysis of Pugh v Locke and the Federal Court Supervision of State Penal Administration Under the Eighth Amendment’ (1977) 29 Stanford Law Review 893 at 898-899.
[75] See The Age (Melbourne) ‘Pentridge in Flames’, Editorial, 4 October 1972.
[76] Parliament of New South Wales Report of the Royal Commission into New South Wales Prison: Volumes I, II & III (Government Printer, 1978) p 17. For an excellent overview of what became known as the ‘Nagle’ Royal Commission see Brown & Zdenowski , above note 52, pp 158-93.
[77] Nagle Royal Commission, above note 76, p 18. For an account of the history of Bathurst Prison and the events that preceded the riot in October 1970 see Ramsland J With Just But Relentless Discipline: A Social History of Corrective Services in New South Wales (Kangaroo Press, Kenthurst, 1996) pp 315-20. In February 1974 Bathurst Prison was set on fire and destroyed by inmates. Prison officers in dealing with the matter used firearms in an indiscriminate manner. According to Ramsland:
The toll was enormous, almost surreal. Eleven of the prisoners had been wounded by
gunfire during the riot, one in the spine, so that he became a paraplegic and is still confined
to a wheelchair. The use of firearms had been indiscriminate and demonstrated a ‘naked
repressive’ use of force on the part of some of the warders (at 318).
As a result of the riot fifteen prisoners were to transferred to Long Bay Gaol where there were further reprisals and where:
...the prisoners from the Bathurst riot were forced to ‘run the gauntlet’ between lines of
warders administering corporal punishment with riot batons. As a result of this illegal battery
most of these prisoners’ bodies were covered with bruising (at 319).
[78] Nagle Royal Commission, above note 76, pp 19-20.
[79] (Victorian Government Printer, 1973).
[80] Above note 79, p 9.
[81] Ramsland above note 77, p 322.
[82] For a useful survey of the unrest that was to characterize prisons in New South Wales and Victoria during the 1970s see Rinaldi F Australian Prisons (F&M Publishers, Canberra, 1977) pp 50-61, 93-103.
[83] See, for instance, Kane v Daniels [1972] VicRp 91; [1972] VR 765; R v Acting Governor of Her Majesty’s Prison, Pentridge; Ex parte Butterly [1974] VicRp 76; [1974] VR 634; R v Visiting Justice at Her Majesty’s Prison, Pentridge, Ex parte Walker [1975] VicRp 86; [1975] VR 883.
[84] Pursuant to the Ombudsman Act 1973 (Vic). In the early history of the Act there were a number of Supreme Court challenges to the power of the Ombudsman to investigate decision making of governments, especially the department responsible for administering prisons in Victoria at that time; the Department of Social Welfare. See Booth v Dillon (No 1) [1976] VicRp 23; (1976) VR 291; Booth v Dillon (No 2) (1976) VR 437; Booth v Dillon (No 3) [1977] VicRp 16; (1977) VR 143. For an example of an investigation undertaken by the Ombudsman see An Investigation into the Cause of Unrest in “H” Division Pentridge During the Weekend Commencing 15 April 1978 (Victorian Government Printing Service, 1978).
[85] Charlesworth H ‘The Australian Reluctance About Rights’ (1993) 31 Osgoode Hall Law Journal 195 at 197-201. The absence of explicit statutory or constitutional protections does not prevent prisoners from pleading the Bill of Rights 1688 (UK) and the provision contained therein concerning the prohibition on cruel and unusual punishment. This matter was raised in the South Australian Supreme Court case of Holden v State of South Australia (1992) 62 A Crim R 308 where the prisoner argued that his treatment amounted to cruel and unusual punishment. His Honour Justice Legoe held, although denying the prisoner’s claim in this case, that the Bill of Rights continued to be force in South Australia and may be used by prisoners to challenge the conditions of their confinement. Also see R v Secretary of State for the Home Department; ex parte Herbage (No 2) [1987] 1 QB 1077 at 1095-1096 per Purchas LJ.
[86] Corrections Act 1986 (Vic); Prison Act 1981 (WA); Prison Act 1977 (TAS); Corrective Services Act 1988 (Qld); Remand Centres Act 1976 (ACT); Crimes(Administration of Sentences) Act 1999 (NSW); Prisons (Correctional Services) Act 1980 (NT).
[87] The Federal Parliament could rely on the external affairs power (s 51 (xxviv)) of the Australian Constitution.
[88] For instance see Corrections Act 1986 (Vic) s 47 which is headed ‘Prisoners’ Rights’.
[89] See for instance Bromley v Dawes (1983) 10 A Crim R 98; Maybury v Osborne (1984) 13 A Crim R 180; Dimozantos v Governor of Barwon Prison & Director General of Corrections (Unreported, Supreme Court of Victoria, 21 June 1993, Ashley J); Collins v State of South Australia [1999] SASC 257; (1999) 74 SASR 200; Farr v Corrective Services Commission (1999) 109 A Crim R 153.
[90] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582-583 per Mason J. The dicta of Mason J in Kioa v West is the leading statement of the doctrine of ‘legitimate expectation’ in Australia. For examples where prisoners have been successful in using that type of argument see Ex Parte Fritz (1992) 59 A Crim R 132; Felton v Queensland Corrective Services Commission [1994] 2 Qd R 490. Cf Walker (1992) 60 A Crim R 463 at 469 per Wilson J.
[91] McEvoy v Lobban [1990] 2 Qd R 235 at 240 per Thomas J. Also see Gray, Hunter and Speedy (1990) 45 A Crim R 364.
[92] Kuczynski v R (1994) 72 A Crim R 568 at 589 per Owen J; Henderson v Beltracchi [1999] VSC 135; (1999) 105 A Crim R 578 at 590 per Mandie J. Also see Bromley v Dawes (1983) 10 A Crim R 98. Note that the rules of natural justice are not fixed and immutable, and the Court in determining whether or not there has been a breach of the rules of natural justice will consider, inter alia, the statutory framework and the nature of the inquiry to be undertaken. See Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Clth) [1963] HCA 41; (1960) 113 CLR 475 at 504 per Kitto J. Also see Kiao v West [1985] HCA 81; (1985) 159 CLR 550.
[93] Fricker v Dawes (1992) 57 SASR 494 at 504-505 per Mullighan J; R v Deputy Governor of Parkhurst Prison ; Ex parte Hague [1992] 1 AC 58 at 165-166 per Lord Bridge. See also Williams v Home Office (No 2) [1981] 1 ALL ER 1211 at 1242-1246 per Tudor Evans J; Holden v State of South Australia (1992) 62 A Crim R 308 at 318 per Legoe J. See also Groves M ‘The Use of Habeas Corpus to Challenge Prison Conditions’ [1996] UNSWLawJl 15; (1996) 19 UNSWLJ 281 at 290-291.
[94] See for instance Bromley v Dawes (1983) 10 A Crim R 98; Maybury v Osborne (1984) 13 A Crim R 180; Re Walker (1992) 60 A Crim R 463; Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82; Rich v Gronigen [1997] VSC 35; (1997) 95 A Crim R 272; Binsev Williams (19[1998] 1 VR 381.
[95] Sandery v State of South Australia (1987) 48 SASR 500 at 513 per Olsson J; Binse v Governor Her Majesty’s Prison Barwon (1995) 8 VAR 508 at 516 per Byrne J.
[96] See Prisoners AA to XX Inclusive v State of New South Wales (1994) 75 A Crim R 205 at 210-211 per Dunford J.
[97] Groves M ‘Administrative Segregation of Prisoners: Powers, Principles of Review and Remedies’ [1996] MelbULawRw 1; (1996) 20 MULR 639 at 667-670.
[98] Vezitis v McGeechan [1974] 1 NSWLR 718; Bromley v Dawes (1983) 34 SASR 73; McEvoy v Lobban (1988) 35 A Crim R 68; Re Walker [1993] 2 Qd R 345; Farr v Corrective Services Commission (1999) 109 A Crim R 153.
[99] McEvoy v Lobban [1990] 2 Qd R 235 at 240 per Thomas J.
[100] Kuczynski v R (1994) 72 A Crim R 568 at 589 per Owen J.
[102] Above note 101 at 455 per Shaw LJ.
[103] Above note 101.
[104] Above note 101 at 466 per Shaw LJ.
[105] See for instance Raymond v Honey [1983] 1 AC 1; O’Reilly v Mackmann [1983] UKHL 1; [1982] 3 WLR 1096; Leech v Deputy Governor of Parkhurst Prison; ex parte Hague [1988] UKHL 16; [1988] 2 WLR 290.
[106] See for instance Secretary of State for the Home Department; Ex parte Herbage (No 2) [1987] 1 QB 1077; Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58.
[107] Livingstone S ‘Prisoners Have Rights, But What Rights?’ (1988) 51 Modern Law Review 525.
[108] Above note 107.
[110] Above note 109 at 10 per Lord Wilberforce. Although as Generva Richardson notes in ‘From Rights to Expectations’ in Player E & Jenkins M (eds) Prisons After Woolf: Reform through Riot (Routledge, London, 1993):
...it is clear that Lord Wilberforce’s statement is concerned exclusively with existing
rights: no reference is made to the possibility of additional rights attaching to
prisoners by virtue of their exceptional dependence (p 81).
In addition Richardson also points out, the difficulty of articulating prisoners residual rights when in the United Kingdom ‘...there is the incorrigible problem of identifying exactly what ‘civil rights’ are possessed by non-prisoners’ (p 81). It is submitted that Australia, like the United Kingdom, is in a similar position given the lack of entrenched constitutional rights in our State and Federal Constitutions.
[111] Newburn T Crime and Criminal Justice Policy (Longman, London, 1995) p 17.
[112] Above note 111, p 23.
[113] Above note 111, p 24.
[114] For a prisoner’s account of the causes of the riot at Hull Prison and the violence inflicted by prison officers in the aftermath a publication was produced by PROP (Preservation of the Rights of Prisoners) based on the narrative of individual prisoners. See Don’t Mark His Face (PROP, 1976). The title refers to the phrase used by prison officers to each other to ensure that marks were not left on the face of prisoners during an assault and thus increasing the potential for the successful prosecution of officers. PROP was composed primarily of ex-prisoners and also included academics and others concerned with the nature of prison conditions.
[115] Woolf Report Prison Disturbances April 1990: Report of an Inquiry by the Rt Hon. Lord Justice Woolf (Parts I & II) and His Honour Judge Stephen Tumin (Part II) (HMSO, 1995).
[116] Morgan R ‘Woolf: In Retrospect and Prospect’ (1991) 54 Modern Law Review 713 at 716-719.
[117] See generally Sim J ‘”We are Not Animals, We Are Human Beings”: Prisons, Protests and Politics in England and Wales, 1969-1990’ (1991) 18 Social Justice 107.
[118] Livingstone & Owen, above note 19, pp 56-80.
[119] Jacobs, above note 9 at p 432.
[120] Cooper v Pate (1964) 378 U.S. 546; Lee v Washington [1968] USSC 46; (1968) 390 U.S. 333; Johnson v Avery [1969] USSC 32; (1969) 393 U.S. 483.
[121] [1974] USSC 157; (1974) 418 U.S. 539.
[122] Above note 121 at 555-556 per White J.
[123] The First Amendment of the United States Constitution provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech of the press or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of the grievances’. The Eighth Amendment provides that ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’.
[124] For a comprehensive overview of prisoners’ rights at the State and Federal level in the United States see ‘Prisoners’ Rights’ (1999) 87 Georgetown Law Journal 1903. This journal produces an annual survey of American criminal law.
[125] Bounds v Smith [1977] USSC 67; (1977) 430 U.S. 817; Lewis v Casey [1996] USSC 67; (1996) 116 S.Ct. 2174.
[126] Cruz v Beto [1972] USSC 55; (1972) 405 U.S. 319. Also see O’Malley v Brierely [1973] USCA3 294; (1973) 477 F.2d 785; Wojtazak v Cuyler (1979) 480 F.Supp 1288.
[127] Estelle v Gamble [1976] USSC 205; (1976) 429 U.S. 97.
[128] Pell v Procunier [1974] USSC 141; (1974) 417 U.S. 817; Turner v Safley [1987] USSC 100; (1987) 482 U.S. 78.
[129] Whitley v Albers [1986] USSC 42; (1986) 475 U.S. 312; Hudson v McMillan [1992] USSC 17; (1992) 503 U.S. 1.
[130] Rhodes v Chapman [1981] USSC 144; (1981) 452 U.S. 337; Wilson v Seiter [1991] USSC 104; (1991) 111 S.Ct. 2321.
[131] Hudson v Palmer [1984] USSC 169; (1984) 468 U.S. 517 at 524 per Burger CJ; Turner v Safley [1987] USSC 100; (1987) 482 U.S. 78 at 89-91 per O’Connor J.
[132] For a seminal account by a journalist who covered the events at Attica see Wicker T A Time to Die: The Attica Prison Revolt (University of Nebraska Press, 1975)
[133] [1984] USSC 168; (1984) 468 U.S. 576.
[134] Above note 133 at 584-585. See also Bell v Wolfish [1979] USSC 82; (1979) 441 U.S. 520 at 551per Rehnquist J.
[135] Jones v North Carolina Prisoners’ Labour Union [1977] USSC 135; (1977) 433 U.S. 119 at 126 per Rehnquist J.
[136] Sturm S ‘The Legacy and Future of Corrections Litigation’ (1993) 142 University of Pennsylvania Law Review 639 at 701; Giles C ‘Turner v Safley and its Progeny: A Gradual Retreat to the ‘Hands Off’ Doctrine’ (1993) 35 Arizona Law Review 219 at 232.
[138] Above note 137. In Turner v Safley the majority per the judgment of O’Connor J, outlined a four tier test to determine the reasonableness of a challenged decision by a correctional administrator and whether or not it was reasonably connected to the furtherance of a legitimate penological objective. The test is as follows:
• Whether there was a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.
• Whether or not there are alternative means of exercising the right that remains open for prisoners.
• The impact that the accommodation of the asserted constitutional right will have on prison staff and other inmates and on the allocation of prison resources generally.
• The absence of ready alternatives available to correctional administrators (at 89-91).
[139] [1984] USSC 168; (1984) 468 U.S. 576.
[140] [1974] USSC 141; (1974) 417 U.S. 817.
[141] Above note 140 at 827.
[142] Turner v Safley [1987] USSC 100; (1987) 482 U.S. 78 at 101-102.
[143] Willens, above note 54 at 123.
[144] See for instance Stewart v Lewis (1993) 70 A Crim R 83 at 91 per MacKenzie J; Binse v Williams (1998) 1 V.R. 381 at 393 per Charles J.
[145] See for instance Gray, Hunter and Speedy (1990) 45 A Crim R 364 at 370 per Byrne J; Walker (1992) 60 A Crim R 463 at 466 per Williams J; Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 89 per Dunford J; Rich v Gronigen [1997] VSC 35; (1997) 95 A Crim R 272 at 289 per Gillard J.
[147] Above note 146 at 412-413.
[149] Above note 148 at 393 per Charles J.
[150] Above note 148 at 394 per Charles J.
[151] Above note 148 at 394 per Charles J.
[152] Governing Prisons: A Comparative Study of Correctional Management (Free Press, New York, 1987). The State correctional systems considered by the author were Texas, Michigan and California. For a useful historical analysis of how prison management changes over time and is influenced by wider social forces see Barank-Glantz I ‘Toward a Conceptual Schema of Prison Management Styles’ (1981) 16 Prison Journal 42. Also see Ditchfield J Control in Prisons: A Review of the Literature (HMSO, 1980); Sparks J & Bottoms A ‘Legitimacy and Order in Prisons’ (1995) 46 British Journal of Sociology 45.
[153] Above note 152 at 93. A striking example of the importance of management style for the security and good order of a prison is the case of Gray, Hunter and Speedy (1990) 45 A Crim R 364. In this case the Queensland Corrective Services Commissioner introduced a new type of prison regime known as ‘interactive unit management’. A central feature of this regime was that there was no separation of prisoners by reference to their security status. As a result maximum, medium and minimum-security prisoners were housed in the same cellblock. Subsequently there was a riot in that cellblock and his Honour Byrne J found, that the ‘intermingling of members of different security groups led to a degradation of supervision and security’ (at 367). For an account of modern methods of inmate management and, in particular, the concepts of unit management see Griffin J ‘Modern Prison Management’ in Ellem B (ed) Beyond Catching and Keeping: Police, Corrections and the Community (Monash University, 1995) pp 119-23. Unit management forms the cornerstone of prison management in the Victorian prison system. See Office of Corrections ,Unit Management in Victorian Prisons (Victorian Government Printing Service, 1989)
[154] Dilulio refers to the three models, or styles, of correctional administration as follows: Texas control ; Michigan responsibility and California consensus. According to Dilulio the control model is characterized by tight administrative controls that are enforced rigidly by correctional staff. The aim of this model of prisoner control is to control strictly the behaviour of inmates with the end being the production of a prison environment that is safe, humane and ordered. In contrast, the responsibility model of prison governance places emphasis on prisoners taking responsibility for their day to day lives. To implement such a policy correctional administrators curtail the paramilitary content of the prison as far as possible and minimize the formal symbols of authority. The consensus model of prison management attempts to combine facets of both the control and responsibility models.
[155] Researchers have attempted test Dilulio’s contention that prisons with a control style administration ought to have lower levels of disorder and higher levels of amenity. Interestingly, one researcher found the opposite and concluded that the responsibility and consensus models of prison management had lower levels of serious disorder than did control based institutions. See Reising M ‘Rates of Disorder in Higher Custody State Prisons: A Comparative Analysis of Managerial Practices’ (1998) 44 Crime & Delinquency 229 at 238-241.
[156] For instance see Sentencing Act 1991 (Vic) s 5 (1) (a)-(f).
[157] See generally Sir Anthony Mason, ‘Fair Trial’ (1995) 19 Criminal Law Journal 7.
[158] Hirschkopt P & Millemann M ‘The Unconstitutionality of Prison Life’ (1969) 55 Virginia Law Review 795 at 811.
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