By Bronwyn Naylor

Governments around the world have invested in prisons as places for the punishment of offenders. They are expensive, harmful and overused. In Australia, prisons are becoming increasingly overcrowded, and their populations demonstrate striking levels of vulnerability and disadvantage. There were 29,383 prisoners (sentenced and unsentenced) in Australian prisons at 30 June 2012, and Aboriginal and Torres Strait Islander people comprised just over a quarter of the total prisoner population, despite being only 2 per cent of the overall Australian population. Prisons have been called the ‘mental health institutions of the 21st century’, with high levels of mental ill health, cognitive impairment and acquired brain injury among prisoners, in a population with significant histories of abuse and neglect, substance addiction, and low levels of educational achievement.

At the same time, governments are encouraging more and longer prison sentences in response to perceived increases in crime. Statistically, this fear is not warranted: most crimes continue to occur at the same or lower rates. It is now internationally recognised that rates of crime and rates of imprisonment bear little relationship; the use of imprisonment is a political choice, not a criminological necessity.

Overcrowding of prisons means cramped accommodation and sharing cells built originally for one person, longer waiting times for medical attention, and more limited access to education and therapeutic programs. In Victoria, it has meant that people held in prisons on remand – that is, not convicted but waiting to come to court for a hearing – have missed court dates due to overcrowding in custody cells, in breach of basic rights not to be arbitrarily detained, and to a fair and timely hearing.

Two issues are therefore important in this discussion: first, the negative impacts of overcrowding and over use of prisons; and second, whether governments could use alternative forms of punishment for crime. The underlying issue of whether tougher sentences are needed at all is beyond the scope of this report.

Prisoners’ rights and overcrowding

It is now accepted that people who go to prison retain their rights as human beings, other than the rights that are inevitably lost when they forfeit their liberty. This general principle is recognised in legislation, in international treaties and in case law. However, in practice it can be problematic, for a number of reasons.

First, most Australian jurisdictions have no legislation spelling out prisoners’ rights. In Victoria the Corrections Act sets out a range of rights, for example to visits, time out of cells, education, and religious practice. However it is far from a comprehensive list of prisoners’ rights, and some other states have even less protection.

Second, basic international human rights that apply to people in prisons (unless explicitly excluded) are unenforceable in Australia. These include the right not to be subjected to cruel, inhuman or degrading treatment or punishment and more generally to the protection of life, family, reputation, privacy, and religious belief.

When these rights – which are set out in the International Covenant on Civil and Political Rights (ICCPR) – are breached, prisoners can only complain to the UN Human Rights Committee, but the committee’s conclusions are non-binding. The exceptions are Victoria and the ACT, which have enshrined the ICCPR in domestic law. The recent Victorian case upholding a prisoner’s right to access ‘reasonable’ medical care shows the importance of human rights legislation. In that case, the female prisoner was permitted to continue IVF treatment, in circumstances where she would be too old to continue if she waited to the end of her sentence (Castles v Secretary to the Department of Justice & Ors)

Third, the daily practice of operating and managing a prison makes it difficult to protect rights, even when prison operators are aiming to do so. Community expectations of punitive conditions in detention discourage more humane prison conditions, as evidenced by tabloid media critiques to which governments can be extremely sensitive. Further, security requirements routinely take priority over other interests. Corrections legislation emphasises the primacy of maintaining security; this is of course the raison d’etre of a custodial facility, and the courts have accepted argument that security requirements can legitimately limit individual rights. Without human rights laws, courts can struggle to identify principles which challenge the primacy of security.

Finding alternatives to imprisonment

Prisons detain the most vulnerable and marginalised of the community, and risk causing them further harm. They are also expensive: in Australia it costs over $300 per day to keep someone behind bars. Scandinavian countries, as a comparison, have substantially lower imprisonment rates with no greater occurrence of crime. A number of countries are now recognising the need to reduce the use of imprisonment, if only for economic reasons.

There are alternatives to custodial sentences. Across Australia sentence options include fines and community work orders; they also include referral to mental health and drug treatment facilities. We need a debate in Australia about what we really want when we call for ‘punishment’ of offending behaviour. It is arguably impossible to imprison people and at the same time protect their human rights. Therefore, governments in Australia should investigate all non-custodial forms of punishment and minimise the use of imprisonment. Redirecting resources to mental health care, alcohol and drug treatment, supports for indigenous communities, and constructive forms of community punishment should be a priority for any government interested in human rights.

This piece is featured in the 2014 Castan Human Rights Report. You can read the full report and download a pdf here. 

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Further reading

B. Naylor, ‘Protecting the Human Rights of Prisoners in Australia’ in Paula Gerber and Melissa Castan (eds)Contemporary Perspectives on Human Rights Law in Australia (Thomson Reuters, 2013) pp.395-416.

The Senate Legal and Constitutional Affairs References Committee, Value of a justice reinvestment approach to criminal justice in Australia, June 2013.

Anita Mackay’ Accommodating people in cages and shipping containers: the reality of overcrowded prisons‘ January 2014 http://asiapacific.anu.edu.au/regarding-rights/tag/anita-mackay/

Tomislav V Kovandizic ad Lynne M Vieraitis, ‘The effect of County-level Prison Population Growth on Crime Rates’, (2006) 5(2) Criminology & Public Policy 285.

SmartJustice, FactSheet: Crime Statistics – The Real Picture, (11 November 2010)http://www.smartjustice.org.au/resources/SMART_CrimeStats.pdf

Tapio Lappi-Seppala and Michael Tonry, ‘Crime, Criminal Justice and Criminology in the Nordic Countries’, (2011) 40(1) Crime and Justice 1

John Pratt and Anna Eriksson,  ‘”Mr. Larsson is walking out again”. The origins and development of Scandinavian prison systems’ (2011) 44 Australian & New Zealand Journal of Criminology 7-21

Jonny Steinberg, ‘Prison Overcrowding and the Constitutional Right to Adequate Accommodation in South Africa’, Centre for the Study of Violence and Reconciliation, January 2005

Michael Tonry, ‘Punishment Policies and Patterns in Western Countries’, in Sentencing and Sanctions in Western Countries Michael Tonry & Richard S. Frase, eds. (Oxford University Press, 2001)