Precedent (Australian Lawyers Alliance)
OVERCROWDING IN AUSTRALIAN PRISONS
THE HUMAN RIGHTS IMPLICATIONS
By Anita Mackay
A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.
A corollary of the ‘tough on crime’ agendas being implemented by the majority of state and territory governments around Australia is rapidly rising prison populations. Prison capacity has not kept pace with demand, resulting in chronic overcrowding. This has a number of implications for society, including economic impacts. However, this article focuses on the implications for those inside Australian prisons who, under international human rights law, retain the majority of the human rights afforded to the rest of society. Simply put, individuals’ human rights are being violated on a daily basis in Australian prisons because of overcrowding.
PRISON POPULATIONS AROUND AUSTRALIA
Prison populations in Australian states and territories are on an upward trajectory. This is evident from a range of different measures, including:
• increases in the daily prison population: the Productivity Commission reports that the average number of people in prison per day was 32,683 in 2013-14, an 8.6 per cent increase on 2012-13 rates;
• increases in the imprisonment rate per 100,000 of population: this rose from 172.4 in 2012-13 to 187.3 in 2013-14; and
• the rise in expenditure on prisons: this rose from $2,420,489,000 in 2009-10 to $2,614,477,000 in 2013-14 nationally.
A major source of expenditure on prisons is the building programs many jurisdictions are undertaking to cope with the increased demand for prison places. For example, Victoria is building a new 1,300-bed prison; Western Australia plans to add 2,600 beds; the Northern Territory plans to add 1,000 beds; and The Alexander Maconochie Centre (the only prison in the Australian Capital Territory (ACT)) is also being expanded at a reported cost of $2.77 million.
A longer-term perspective is useful here. In the Northern Territory, for example, the imprisonment rate increased by 46 per cent between 2001 and 2011. The Victorian rate increased by 40 per cent between 2002 and 2012; then by 25 per cent between 2012 and 2014. Furthermore, the New South Wales (NSW) prison population increased by 13 per cent between September 2012 and late March 2014, and in 2014 was predicted to grow by a further 17 per cent by the end of March 2015.
Increasing crime rates do not entirely explain increasing imprisonment rates. In fact, the rates of most types of crime in Australia are declining. The causes for growth in prison populations are varied and include:
• changes to sentencing legislation (leading to more people going in to prison for longer periods of time);
• fewer people being eligible for bail (they are instead remanded in custody);
• tightening of parole eligibility (leading to fewer people being released); and
• the use of preventive detention of sex offenders (these people are remaining in prison following completion of their sentence).
These developments have occurred despite evidence that imprisonment increases the chance that people will reoffend after they are released, as well as evidence that tougher sentences do not deter people from offending.
Growth is not evenly distributed among the prison population. Some sub-sets of the prison population are growing faster than others, including women and Indigenous people. Between 2002 and 2012, the number of women in prison increased by 48 per cent (while the number of men increased 29 per cent over the same period). From 1992 to 2009, the Indigenous prison population rose by 79 per cent; the Indigenous imprisonment rate is so high that Indigenous people are 15 times more likely to be imprisoned than non-Indigenous people. The United Nations Committee against Torture was critical of this issue in December 2014.
Growing prison populations do not automatically lead to overcrowding; governments can increase capacity to cater for the increased numbers. However, this has not been the case in most Australian states and territories, despite the building programs referred to above. The Productivity Commission prison utilisation rates show that Australian prisons are operating at an average of 104.4 per cent capacity. The overcrowding is extreme in some jurisdictions. For example, prisons in the Northern Territory are operating at 124.7 per cent capacity and the figures are 122.7 per cent in the ACT and 109.4 per cent in NSW.
As a result of prison expansion initiatives failing to keep up with rapidly expanding prison populations, a number of jurisdictions are relying on shipping containers to accommodate imprisoned people (South Australia, Western Australia and Victoria). There are also reports that NSW may use demountable buildings to accommodate people.
HUMAN RIGHTS IMPLICATIONS OF OVERCROWDING
The Victorian Auditor-General has stated that the ‘nationally accepted limit for the safe and efficient operation of the prison system’ is a 95 per cent utilisation rate because this rate ‘allows prison management the flexibility to adequately manage the rehabilitation, human rights and welfare of prisoners’. The Auditor-General goes on to emphasise that ‘[o]perating above 95 per cent utilisation compromises the ability of prison management to safely and humanely manage prisoners’. Most Australian states and territories exceed this 95 per cent rate.
It is important to emphasise that under international human rights law, people do not lose all their rights upon imprisonment. They retain all rights other than those necessarily lost due to imprisonment – that is, liberty. This article looks at the human rights implications of this situation by reference to two themes: sharing cells and access to medical care and other services. Owing to the dearth of Australian case law about human rights and prison overcrowding, this article refers to decisions that have been made by international courts.
Sharing cells and human rights
The sharing of cells is a common result of prison overcrowding, and the cells are often used to accommodate more people than they were designed for. For instance, in Western Australia, there are situations where two people are sharing cells designed for one person, and cells designed for three people are accommodating four to six people. Triple bunking is occurring in Victorian prisons.
People in prisons have a right to privacy, which is abrogated in such circumstances. Furthermore, there is significant potential for ‘cruel, inhuman or degrading treatment’ (contrary to Article 7 of the International Covenant on Civil and Political Rights (ICCPR)) if overcrowding leads to having to use a toilet in front of others.
Both of these implications have been highlighted by an inspection of the Greenough Regional Prison in Western Australia by the Office of the Inspector of Custodial Services. The Inspector observed in the report that:
‘[t]he majority were sleeping in double-bunks in cells originally designed for single occupancy. This meant that living space and storage space inside the cell was extremely limited. This confined space also contained a toilet, requiring prisoners to urinate and defecate in front of each other. This lack of privacy, now common throughout the Western Australian prison system, is fundamentally degrading.’
Similar circumstances have been the subject of litigation in the European Court of Human Rights (ECtHR). In the case of Peers v Greece, the applicant was sharing an isolation cell designed for one person with another imprisoned person. The cell had no window or ventilation, the temperature was extremely hot and each had to use the toilet in front of the other. The ECtHR concluded that ‘the prison conditions complained of diminished the applicant’s human dignity and aroused in him feelings of anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical or moral resistance’. The Court held that Greece had breached Article 3 of the European Convention on Human Rights, which is similarly worded to Article 7 of the ICCPR.
There is an increased risk of intimidation, bullying and violence when people are forced to share cells, infringing upon the human right to personal security contained in Article 9 of the ICCPR. This is reflected in the non-binding Standard Guidelines for Corrections in Australia, which stipulate the following requirements in relation to sharing of cells to protect against such risks:
‘Where prisoners are accommodated in multiple occupancy cells or rooms, the prisoners are to be carefully assessed and selected as being suitable to associate with one another in those conditions. Particular care should be taken to avoid prisoners being subjected to intimidation or bullying.’
It is difficult to establish whether this policy is being followed in practice because there is no reporting requirement stipulated in the guidelines. However, there is some evidence to suggest that it is not being complied with. This includes a Victorian Ombudsman report into Victorian prisons that has found that ‘with overcrowding, Victorian prisons are becoming more violent’. For example, the report cites the increased risk of sexual assault when young men, who are particularly at risk of this type of assault in prison, are required to share cells.
This finding is supported by a study of sexual assault in Western Australian prisons that found that 14 per cent of those interviewed admitted to having been victims of sexual assault and 23.3 per cent saying they had been pressured to ‘perform sexual acts’. This study identified the places within the prison where the risk of sexual assault is highest to be within cells (by the person sharing the cell), in shower blocks, and in protection units.
The human rights implications of sharing cells are compounded by the amount of time people in Australian prisons are required to spend in their cells. The Productivity Commission has documented that people in secure prisons spend an average of 9.3 hours per day out of their cells, with the figure being as low at 6.9 hours in NSW. This may be partly caused by staffing levels failing to keep pace with growing prison populations, such that prisons are subject to ‘lockdowns’ where no one is allowed out of their cells. This was a concern raised by the Victorian Ombudsman whose investigation uncovered that many people in Victorian prisons are being confined for 23 or 24 hours per day, which adversely impacts on their mental health and in some cases causes people to attempt or commit suicide or self-harm.
In cases where prison conditions lead people to commit suicide it may be argued that the right to life (provided for by Article 9 of the ICCPR) has been infringed. This is precisely what occurred in the European case of Renolde v France. Mr Renolde was suffering from ‘psychotic disorders’ and had attempted suicide, following which he was placed in an isolation cell where he was to have been confined for a period of 45 days. However, 18 days after his initial attempt at self-harm, which should have alerted prison authorities to his mental state, he committed suicide. The ECtHR held that France had failed to ‘comply with their positive obligation to protect Joselito Renolde’s right to life’.
ACCESS TO MEDICAL CARE AND OTHER SERVICES
As prison populations grow, investment in services and programs do not necessarily keep pace. This is evident in both access to medical care and other services that facilitate rehabilitation.
With regard to medical care, it is important to note that in addition to the right to life, people in prison have a right to health, as articulated in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Other relevant rights are Article 10(1) of the ICCPR, which provides that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’ and the prohibition of cruel, inhuman or degrading treatment contained in Article 7.
The 2012 United States Supreme Court decision in Brown v Plata clearly demonstrates the dire consequences that overcrowding may have on access to medical care. Severe overcrowding in Californian prisons had resulted in people with mental illness not receiving adequate treatment. The situation was so serious that there were 68 preventable deaths in a year. People were waiting for 12 months to receive mental health treatment, and some mentally ill people were held in cages while awaiting treatment. The court held that this violated the United States Constitution Eighth Amendment prohibition of cruel and unusual punishment. The court ordered that overcrowding in Californian prisons be reduced from 200 per cent to 137.5 per cent.
In South Australian prisons, the Department for Correctional Services currently requires all imprisoned people receiving medical treatment in hospital to have their legs shackled together, in addition to having one arm and one leg shackled to the hospital bed. This includes women giving birth and people receiving end-of-life care.
There are two main human rights implications of this policy. The first is that this treatment may violate the prohibition against cruel, inhuman or degrading treatment. The restraint of an elderly person undergoing an operation in hospital was held to be ‘disproportionate to the needs of security’ by the ECtHR, in finding that France had breached Article 3 of the European Convention.
The second implication is that people may refuse medical treatment that they need because of the humiliation caused by shackling. The shackling policy was investigated by the South Australian Ombudsman, who found that people are indeed refusing medical treatment. The Ombudsman’s report noted that ‘prisoners (particularly low risk prisoners) do not wish to face the humiliation and shame of attending medical facilities amongst the general public in prison clothing and shackles’. This is arguably in breach of the right to health contained in the ICESCR, as well as the right to be treated with dignity and respect in Article 10(1) of the ICCPR.
With regard to rehabilitation and other services, Article 10(3) of the ICCPR provides that ‘[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation’. The Victorian Ombudsman, in a discussion paper about rehabilitation and reintegration of imprisoned people in Victoria, has aptly described what happens to rehabilitation when prison populations expand rapidly: ‘when corrections departments go through intensive periods of expansion, the rehabilitation aspects of imprisonment are often overwhelmed by the accommodation and security aspects’.
The discussion paper goes on to document some of the challenges facing the Victorian prison system. Some examples include a three-year waiting list for the Serious Violent Offenders program as at June 2014 and people being released straight from prison without having undertaken a program or being given the supervision that the parole system provides.
Similar documentation is not available for other jurisdictions. It seems unlikely, however, that the funding for rehabilitation programs has kept pace with the increases in the prison population in these jurisdictions either.
In addition to insufficient rehabilitation programs, access to general facilities can become strained in overcrowded conditions. Telephone access to keep in contact with people outside the prison, ability to use exercise areas, and common areas (including showers) are all likely to be constrained as the prison population increases.
Australian prisons are overcrowded and there are no signs of this being adequately addressed in the near future. Overcrowding has serious implications for the human rights of imprisoned people. Overcrowding particularly impacts on the rights to life, health, security of the person, privacy, to be free from cruel, inhuman or degrading treatment and the international human rights law requirement that the goal of prison be rehabilitation.
International case law demonstrates that the types of situations being documented in Australian prisons by Ombudsmen, the Office for the Inspector of Custodial Services, and other investigatory bodies do violate human rights. It has to be recognised that there are considerable challenges associated with bringing similar claims in Australian courts in the absence of human rights legislation in jurisdictions other than the ACT and Victoria. However, the Queensland Supreme Court has recently referred extensively to international human rights jurisprudence about solitary confinement, despite the absence of human rights legislation in that jurisdiction. There is, therefore, a glimmer of hope that human rights-based arguments may be made in Australian cases in the future in a manner that benefits people who are suffering human rights violations in prisons around Australia.
Anita Mackay has recently completed her doctoral thesis on the compliance of Australian prisons with international human rights law. She is a research assistant for the ‘Applying Human Rights in Closed Environments: A Strategic Framework for Compliance’, Australian Research Council project at Monash University. EMAIL email@example.com.
 Brown v Plata, unreported, Supreme Court of the United States, 23 May 2011, p13.
 Productivity Commission, Report on Government Services 2015 (2015), 8.4-8.5.
 Ibid, 8.5.
 Ibid, Table 8A.8.
 Victorian Government, Department of Justice and Regulation, Ravenhall Prison Project <http://www.corrections.vic.gov.au/home/prison/ravenhall+prison+project.shtml> .
 Jill Guthrie, Michael Levy and Cressida Forde, ‘Investment in Prisons: An Investment in Social Exclusion. Linking the Theories of Justice Reinvestment and Social Inclusion to Examine Australia’s Propensity to Incarcerate’ (2013) 1(2) Griffith Journal of Law & Human Dignity 254, 256-8.
 Christopher Knaus, ‘ACT to Spend $2.77m on Prison Expansion’, Canberra Times (ACT), 20 March 2014.
 Australian Bureau of Statistics, Prisoners in Australia 2011 (2011) 27. At <http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4517.0Main+Features12011?OpenDocument>
 Sentencing Advisory Council, Victoria’s Prison Population 2002-2012 (2013). At <https://www.sentencingcouncil.vic.gov.au/publications/victorias-prison-population-2002-2012>
 Victorian Ombudsman, Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria. Discussion Paper (2014) 6. At <https://www.ombudsman.vic.gov.au/Investigations/Investigation-into-the-rehabilitation-and-reintegr>
 Weatherburn, Don, Wai-Yin Wan and Simon Corben, ‘Why is the NSW Prison Population Growing?’ Issue Paper No. 95 (NSW Bureau of Crime Statistics and Research, 2014), 1 and 5.
 Australian Institute of Criminology, Australian Crime: Facts and Figures: 2013 (2014), Chapter 6 (‘AIC 2013’) Foreword. For a discussion of the exceptions, see Rick Sarre, ‘The Importance of Political Will in the Imprisonment Debate’ (2009) 21(1) Current Issues in Criminal Justice 154, 157-8 and Chris Cunneen et al, Penal Culture and Hyperincarceration. The Revival of the Prison (Ashgate, 2013) 40-2.
 See, for example, the discussion of Victorian legislative changes in Michelle McDonnell and James Farrell, ‘Tough, Tougher, Toughest? A New Government’s Approach to Sentencing Laws in Victoria’ (2012) 37(3) Alternative Law Journal 238; and Queensland developments discussed in Andrew Trotter and Harry Hobbs, ‘The Great Leap Backward: Criminal Law Reform with the Hon Jarrod Bleijie’  SydLawRw 1; (2014) 36(1) Sydney Law Review 1.
 Bronwyn Naylor, ‘Prisons, Overcrowding and Rights’, Castan Centre Symposium, 6 November 2014, 1. Paper available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2529820.
 For example, mandatory minimum non-parole periods: Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) 735-76.
 James Vess et al, ‘A Comparative Analysis of Australian Sex Offender Legislation for Sex Offender Registries’ (2011) 44(3) Australian and New Zealand Journal of Criminology 404.
 While there is some complexity surrounding how recidivism is measured (for example, the length of time measured between release from prison and reoffending), there is consistency in the finding that approximately 60 per cent of people entering prison have previously been imprisoned: Australian Institute of Criminology, Recidivism in Australia: Findings and Future Research, Research and Public Policy Series No. 80 (2007) xi.
 Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence (2011) 22.
 Australian Bureau of Statistics, Prisoners in Australia 2012 (2 April 2013) 9.
 Australian Institute of Criminology, see above note 12, Chapter 6.
 Australian Bureau of Statistics, Prisoners in Australia 2013 (2014), Table 17. This is a rate of incarceration that the United Nations Rapporteur on Indigenous Peoples has described as ‘alarming’: Human Rights Council, Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, 1 June 2010, 14.
 Committee against Torture, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Australia, CAT/C/AUS/CO/4-5, 23 December 2014, 4.
 Productivity Commission, above note 2, Table 8A.23.
 Elizabeth Grant ‘“Pack ‘em, rack ‘em and stack ‘em”: The Appropriateness of the Use and Reuse of Shipping Containers for Prison Accommodation’ (2013) 13(2) Australasian Journal of Construction Economics and Building 35, 37-8.
 Ibid, 36.
 Jane Lee, ‘Prisoners Moved Into Shipping Containers’, The Age, 6 January 2014.
 Janet Fife-Yeomans, ‘Prison Closures to Put NSW Inmates in Demountable Buildings’, The Daily Telegraph (NSW), 8 January 2015.
 Victorian Auditor-General, Prison Capacity Planning (2012) 9.
 Principle 5 of the United Nations Basic Principles for the Treatment of Prisoners (1990).
 Office of the Inspector of Custodial Services, Report of an Announced Inspection of Greenough Regional Prison (2013) 26.
 Victorian Auditor-General, Prison Capacity Planning (2012) 15.
 As required under Article 17 of the ICCPR.
 Office of the Inspector of Custodial Services, Report of an Announced Inspection of Greenough Regional Prison (2013), 26.
 Peers v Greece  ECHR 28524/95 .
 The Corrective Services Ministers’ Conference of Australia, Standard Guidelines for Corrections in Australia (3rd ed, 2004) 24.
 Victorian Ombudsman, Investigation into Deaths and Harms in Custody (2014) 34.
 Ibid, 35.
 Brian Steels and Dot Goulding, Predator or Prey? An Exploration of the Impact and Incidence of Sexual Assault in West Australian Prisons (Murdoch University, 2009), 54.
 Protection units contain a high concentration of people convicted of sex offences who need protection from those in the mainstream. However, some of them victimise others in the protection unit: Ibid, 50-1.
 Productivity Commission, above note 2, Table 8A.18.
 Cameron Atfield, ‘Queensland’s Correctional Officers Face Prisoner Ratio Blowout’, Brisbane Times, 2 October 2014.
 Victorian Ombudsman, Investigation into Deaths and Harms in Custody (2014), 40.
 Renolde v France  ECHR 5608/05 ,  and .
 Ibid, .
 Brown v Plata, above note 1.
 Alicia Bower ‘Unconstitutionality Crowded: Brown v Plata and How the Supreme Court Pushed Back to Keep Prison Reform Litigation Alive’ (2012) 45 Loyola of Los Angeles Law Review 555, 556-7.
 Ibid. Ian Freckelton, ‘Cruel and Unusual Punishment of Prisoners with Mental Illnesses: From Oates to Plata’ (2011) 18(3) Psychiatry, Psychology and Law 329, 329.
 Brown v Plata, above note 1.
 Custodial Services Executive Director’s Instruction 51-11, cited in Ombudsman South Australia, Ombudsman Investigation into the Department of Correctional Services in Relation to the Restraining and Shackling of Prisoners in Hospitals (2012) 1.
 Henaf v France  ECHR 45436/01 .
 Ombudsman South Australia, above note 49, 37.
 Victorian Ombudsman, above note 10, 6.
 Ibid, 18.
 Ibid, 19.
Bronwyn Naylor, ‘Human Rights and Respect in Prisons: The Prisoners’ Perspective’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (The Federation Press, 2014), 96.
 Human Rights Act 2004 (ACT).
 Charter of Human Rights and Responsibilities Act 2006 (Vic).
 See Callinan v Attendee X  QSC 340; Callinan v Attendee Y  QSC 341 and Callanan v Attendee Z  QSC 342.