Prisoners' Rights in Australia
| Author | Terry B Birtles |
| Published date | 01 December 1989 |
| Date | 01 December 1989 |
| DOI | 10.1177/000486588902200402 |
| Subject Matter | Original Article |
202 (1989)
22
ANZJ
Crim
PRISONERS' RIGHTS IN AUSTRALIA
Terry BBirtles*
Abstract
This study directs attention to the history of legal developments prior
to
the
preparation
of
adraft ofMinimum Standard Guidelines for Corrections in Australia
and New Zealand. The progression
of
an international law applicable to prisoners
is
reviewed. Note
is
taken of international influences upon seminars conducted by
the Australian Institute of Criminology to draw up Minimum Standard Guidelines
for Australian prisons. It
is
suggested that the Nagle Report of 1978 removed
substantial Australian conservative restrictions against prison reform and has
opened the way for more effectual Australian commitment to its international
human rights obligations.
Introduction
This article seeks to demonstrate the impact
of
developments in international
human rights law on the treatment of prisoners
in
Australia. Because Australia
functions as afederal system, with all prisons operating according to independent
penal codes, common standards at national level can only be offered
as
guidelines,
with considerable geographical variation
in
interpretation persisting from state to
state. This discussion
of
prisoners' rights follows three themes: (i) developments
of
international law; (ii) minimum standard guidelines for Australian prisons; and
(iii) State and Commonwealth interpretations relevant to international law.
Development of an International Law Applicable to Prisoners
The origins
of
the modern conception of human rights can be traced from the
French Revolution of 1789, with the Declaration
of
the Rights of Man and the
Citizen borrowing from Stoic and Ciceronian classical sources to inspire such
subsequent international conventions as the abolition of slavery, the protection
of
minorities, the treatment of aliens in times of peace and war, and the United
Nations Charter
of
1945. The Nuremberg war crimes trials as areaction to Nazi
practices
of
genocide and gross maltreatment of civilians introduced the concept
of
crimes against humanity into the ensuing Genocide Convention, the UN Universal
Declaration
of
Human Rights
(UDHR),
both of 1948, the European Convention
for the Protection of Human Rights (1950), the American Convention on
Human
Rights (1969) and the African Charter on Human and Peoples' Rights (1981).
Articles 5and 6of the
UDHR
proclaimed that no one "shall be subjected to torture
or to cruel, inhuman
or
degrading treatment or punishment"
~d
everyone has
"a
right to recognition everywhere
as
aperson before the law"
wi~hout
discrimination,
arbitrary arrest, detention, exile or attacks upon honour/ and reputation, as
subsequent
UDHR
clauses identify. Assaults upon the inherent dignity of human
beings became recognised as relevant to the stability of international'order. As a
sequel to the
UDHR,
the First UN Congress on the Prevention of Crime and the
Treatment of Offenders in
1955
successfully completed and adopted standard
*Associate Professor, School
of
Applied Sciences, Canberra College
of
Advanced Education.
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