Overview of Australian Justice and Prison Systems
CHINA – AUSTRALIA HUMAN RIGHTS
TECHNICAL COOPERATION PROGRAMME:
WORKSHOP ON PRISONERS AND DETAINEES:
XIAN MAY 2004
OVERVIEW OF AUSTRALIAN
JUSTICE AND PRISON SYSTEMS
JUSTICE WOOD
CHIEF JUDGE
COMMON LAW DIVISION
SUPREME COURT OF NEW SOUTH WALES
1. The Australian Justice and Prison System – An Overview
Australia consists of a federation of states and territories, with a central national government, and separate state and territory governments. The justice system is shared between the central government, and the state and territory governments, in relation to the enactment of penal laws and their enforcement by police, or by individual specialised law enforcement agencies.
The prosecution of criminal offenders is, in the main, entrusted to the Directors of Public Prosecutions, and their staff, again organised on a national, state or territory basis. However, the pursuit of criminal prosecutions, whether state or federal, takes place in the state or territory courts, since the federal courts have no criminal jurisdiction.
Similarly, offenders who are sentenced to any form of detention (“prisoners”) or who are held in detention pending trial (“detainees”) come within the responsibility of the state and territory justice system, and the state or territory corrective services. There are no federal prisons and, subject to some differences in practice, federal and state offenders have similar rights and entitlements.
2. The Westminster System and Independence
Critical for an understanding of the Australian justice and penal system is an understanding that each of the several agencies, that is, the law enforcement agencies, the Directors of Public Prosecutions, the courts, the corrections services, and the oversight agencies, is independent of one another. Within the limitations of the proper exercise of their powers and functions, none can be directed as to the manner of their performance, by either central or state or territory governments, or by any of the other agencies.
The presentation, which will be made today, will examine the role of each of these arms of the justice and prison systems, in so far as they may have a separate role in the protection of the human rights of prisoners and detainees, either directly or by way of oversight. While there are differences in detail between the arrangements in place in each state and territory, the presentation will, in the main, confine itself to the system in place in New South Wales, which is the state with the largest population.
3. The Law Enforcement Agencies
(a) Federal
At a federal or central level there are several law enforcement agencies, each with a jurisdiction in the specific area or areas entrusted to it under federal statutory law. In summary, they include the following:
(i) The Australian Federal Police (AFP)
This agency investigates and presents for prosecution, cases arising under specific federal laws, including for example, narcotics importations, immigration offences, money laundering, and offences arising under maritime and aviation laws.
(ii) The Australian Security Intelligence Organisation (ASIO)
This agency has a responsibility for investigation, usually in conjunction with the Australian Federal Police, of activities concerned with espionage and terrorism.
(iii) The Australian Crime Commission (ACC)
This agency is a specialised agency with responsibility to investigate certain areas of organised crime or national crime syndicates, in some cases under reference, or with the agreement of the states and territories.
(iv) The Australian Securities and Investments Commission (ASIC)
This is an agency with power to investigate, often in conjunction with the Australian Federal Police, certain areas of corporate crime. It also has regulatory and supervisory powers concerning securities and investments.
(v) Other Agencies
There are several other government agencies with power to investigate offences under specific acts, for example taxation, although again they tend to work in conjunction with the Australian Federal Police.
At the initial arrest and charging phase of a criminal investigation, these agencies place suspected offenders before a court, and either seek their detention pending trial or consent to their conditional release. In the investigative phase they have limited powers of detention of suspected offenders (detainees), for the purpose of interrogation or investigation.
(b) States
Taking New South Wales as an example, there are again several different law enforcement agencies with powers to investigate offences, and to arrest and place offenders before a court. They include:
(i) The New South Wales Police Force
This is a police force with a general power to investigate and prosecute offences arising under New South Wales law.
(ii) The New South Wales Crime Commission
This is a specialised agency, in the main staffed by investigators on secondment from the New South Wales Police Force, but with a permanent support staff, which is tasked with investigating major and organised crime.
(iii) Other Agencies
In common with the Commonwealth, there are a large number of other government departments with power to investigate, and to prepare for prosecution, offences in relation to specific areas falling within their area of responsibility. They include, for example, offences under laws concerning the regulation of fisheries, state parks and forests, the waterways, local transport, the environment, and so on. For the most part they are concerned with lesser offences, which do not normally result in detention, either pre-trial or post-trial.
4. The Directors of Public Prosecutions
Both at state and federal level, their powers, responsibilities, and independence, and that of their staff, are regulated by statute. Their role is to prosecute offences investigated by law enforcement agencies, on their behalf.
At a state level, the Director of Public Prosecutions (DPP) is assisted by permanent Crown Prosecutors who are entrusted with the conduct of trials in the courts, and by legal and other support staff. The ultimate decision to prosecute, or to bring a prosecution to an end for lack of evidence, rests with the Director. He or she cannot be directed by the Attorney General, or Justice Minister, in relation to the exercise of this power, nor, subject to certain qualifications, can a decision to prosecute be reversed by a court.
Commonly, law enforcement agencies will seek advice from the Director of Public Prosecutions as to whether or not there is sufficient evidence to prosecute a case, but the DPP cannot direct these agencies on how to go about their work.
At a federal level, the Director of Public Prosecutions is a somewhat smaller agency, which tends to engage private practitioners to prosecute individual cases in the state and territory courts, but otherwise it's role is similar to that of the state Directorates.
5. The Courts
Typically the courts within the states are organised in a three-tiered system:
(a) Local Courts and Children's Courts
These deal with the lesser offences, which are presented for prosecution by the DPP or by law enforcement agencies. Their powers include the preliminary determination of custody or release on bail pending trial, and the imposition of sentences of detention, for the lesser offences which come before them.
(b) District or County Courts
These courts deal with criminal offences of intermediate seriousness, and again they have a power, in certain circumstances, to determine questions of detention, or release on bail, for suspects pending trial, and to pass sentences requiring imprisonment;
(c) Supreme Courts
These courts are superior courts of record, which try the most serious offences, and which also have an appellate jurisdiction in relation to trials conducted, both in the District Court and in the trial division of the Supreme Court.
They have certain supervisory powers in relation to issues concerning the custody of persons held pending trial (detainees) and of offenders after sentences have been passed (prisoners).
6. The Correctional System
While there are differences in detail between the states and territories, upon an organisational basis, and by reference to the use of corrective centres, which are conducted by private enterprise under contract, there are general similarities. So far as New South Wales is concerned, there is a division as follows:
(a) The Department of Corrective Services
This department manages a series of detention centres and correctional centres throughout the state, of varying degrees of security, ranging from the most secure High Risk Management Unit, through maximum security centres to afforestation camps, and periodic detention centres.
In general terms, adult suspects held pending trial ("detainees") are held in the remand centres, within the correctional services complexes, but have additional privileges and rights not possessed by those serving sentences in the correctional centres ("prisoners").
Provision exists for reclassification, as a prisoner moves through the system, allowing for a progressive increase in entitlements and privileges (eventually including work release), as well as for programs for education, training, counselling and the like, which are aimed at securing as much rehabilitation as can be achieved before release. The system also provides for post release supervision during the balance of the sentence, after the parole period (or minimum term of imprisonment) set by the Court, has been served.
(b) Department of Juvenile Justice
Juvenile Justice Centres are established for offenders up to the age of 18 years, although by Court order, at the time of sentencing, some offenders may be permitted to remain at such centres until, or shortly beyond, the age of 21 years. The emphasis in these centres is upon rehabilitation, with a wide range of educational, training, counselling and other programs or activities available.
The detail in relation to the organisation of the correctional and juvenile justice services, from the departmental perspective and also from the detainees’ and the prisoners’ perspective, including their legal representation through private and public lawyers, will be developed by the speakers who follow.
7. The Oversight of Detention and Imprisonment
The machinery for the oversight of the rights of persons held in any form of detention, or imprisonment, and for the regulation or enforcement of the obligations of those who are responsible for the initial placement of persons into custody, and for their ongoing management and care, is somewhat complex and fragmented.
A brief outline in relation to the available agencies, and avenues for oversight, may be helpful.
(a) Official Visitors
Most correctional systems provide for the appointment of official visitors to each corrective centre, to whom the prisoners within that centre can direct complaints concerning any form of unfair treatment, or denial of their rights or privileges. They also have a role in relation to overseeing prison conditions. Their obligations extend to regular visits to the centre, during which they are expected to give interviews to staff and to inmates, to deal with complaints, and to report to the Minister.
(b) The Independent Commission Against Corruption (ICAC)
ICAC has a statutory duty and power to investigate and to report, with appropriate recommendations, in relation to any corrupt activity on the part of public justice officials, which extends to the wrongful performance, or non-performance, of the duties attaching to the staff of the Departments of Corrective Services and of Juvenile Justice.
(c) The Ombudsman
The Office of the Ombudsman has a power of investigation in relation to administrative matters within the correctional system, such as procedural unfairness or oppression, where the internal investigation process within the corrective centre has reached its conclusion, and the outcome remains unsatisfactory.
(d) The Supreme Court
The Court has a limited jurisdiction, pursuant to habeas corpus principles, and also in the exercise of its jurisdiction to review administrative decisions, to remedy injustices or unlawful treatment, including unlawful detention, in relation to persons in custody, whether as detainees or prisoners.
In addition, it has the power to review decisions affecting persons who are refused bail pending trial, and to award monetary damages to prisoners who suffer physical injuries while in custody, as a result of the unlawful conduct, or negligence, of correctional officers, and to prisoners who are falsely imprisoned.
It also has a power to quash convictions and to set aside sentences, where error has been made at the trial, or in relation to the sentencing proceedings.
(e) The Human Rights and Equal Opportunity Commission (HREOC)
The Commission plays an important role in relation to the protection of human rights, including those of detainees and prisoners. It extends to monitoring, and investigating Commonwealth legislation and the practices of commonwealth agencies, in order to determine whether they are consistent with Australia's human rights obligations. It also fosters public debate and makes submissions to governments and parliamentary committees to encourage Australian compliance.
Its jurisdiction is however subject to two limitations. First, it is not able to make binding decisions in relation to any issues which might arise between two parties, for example, a prisoner and a correctional centre or the responsible Minister. Secondly, its jurisdiction is limited to the acts or practices of commonwealth agencies and does not extend, as a consequence, to prisoners detained for offences committed under state or territory law, or for federal prisoners held in state prisons.
(f) The Police Integrity Commission
The Police Integrity Commission is a separate agency. It is headed by a Commissioner, and its staff includes lawyers, investigators, financial analysts, and surveillance and technical support officers. It is tasked with the investigation of corruption and misconduct, in relation to the performance, by members of the New South Wales Police Force, of their duties and with reporting to Parliament on those investigations.
In this capacity it is able to investigate and report on abuses of police powers concerning the arrest, charging and detention of suspects, including, for example, the manufacture of false evidence, police assaults and shootings, the acceptance of bribes and theft.
It supplements the activities of the Force’s own Internal Affairs Unit, and it can take over, for its exclusive control, any investigation into complaints of police misconduct or corruption.
It is able to conduct public hearings, and to compel witnesses to give evidence and to produce documents. It has the authority to exercise a wide range of covert and other investigative powers, including the making of searches and the use of electronic surveillance.
8. Refugees
There is one further category of detainees in Australia arising out of its restrictive policies in relation to illegal immigrants. Those refugees who do make it through the immigration zone, or are rescued, are held in a variety of detention centres, either inside the country or offshore, for example in Nauru.
Their processing for refugee status, and their designation as temporary or permanent residents, or as illegal immigrants subject to deportation, is conducted by the Department of Immigration and Ethnic Affairs, subject to review by the Refugee Review Tribunals, with a very limited right of review by the High Court, and, by reference from the High Court, to the Federal Court of Australia.
Otherwise, detainees of this character are not afforded the rights and privileges extended to detainees and prisoners falling within the criminal justice system.
9. Human Rights Standards
(a) International Human Rights Standards
The international human rights instruments, which have a relevance for the detention and imprisonment of persons, include:
Conventions
· The International Covenant on Civil and Political Rights (ICCPR)
· The United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (UNCAT)
· The UN Convention on the Rights of the Child (CROC)
Other Instruments of Relevance
· The United Nations Standard Minimum Rules for the Treatment of Prisoners 1955 (SMR)
· The United Nations Rules for the Protection of Juveniles Deprived of their Liberty
· The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)
· The Body of Principles for the Protection of all Persons Under any Form of Detention or Imprisonment 1988
· Basic Principles for the Treatment of Prisoners 1990
Australia has accepted relevant obligations arising under the three conventions, and as such, it is expected that it will respect these obligations in the way in which it, and its representatives, act. To a considerable extent the relevant obligations are incorporated into local laws, and as such they are enforceable and capable of being protected in the state or federal courts.
Otherwise non-compliance is subject to scrutiny by the various international committees appointed to supervise state performance under those instruments. As Australia has acceded to the optional protocol to the ICCPR, individuals, including prisoners, can lodge complaints concerning alleged infringements of the ICCPR with the United Nations Human Rights Committee (HRC).
It has not, however, enacted legislation which would give jurisdiction to Australian Courts to consider complaints that would fall within the scope of the protocol.
The remaining international instruments perform the role of providing standards which individual nations are encouraged to incorporate into their local laws, with suitable adaptation for local conditions. Since they do not have the status of international conventions or treaties they have no other legal effect or standing.
(i) The International Covenant on Civil and Political Rights
The general human rights recognised by the ICCPR extends to all individuals, without distinction as to race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2), and as such extended to prisoners and detainees. The general norms of relevance for prisoners, include the rights:
· not to be arbitrarily deprived of life (Article 6)
· not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 7)
· to liberty and the security of person and not to be subject to arbitrary arrest or detention (Article 9)
· when deprived of liberty, to be treated with humanity and with respect for the inherent dignity of the human person (Article 10)
· the right to non-retroactivity of criminal punishment (Article 15)
(ii) The Standard Minimum Rules detail what is generally accepted as being good principle and practice in the treatment of prisoners and in the management of institutions. It is accepted that not all of the rules are capable of application in all places and at all times. The HRC has observed that there are certain minimum requirements which should always be observed. They relate, for example, to the minimum floor space and cubic content of the air for each prisoner, adequate sanitary facilities, clothing which is not to be degrading or humiliating, the provision of a separate bed, and the provision of food of nutritional value adequate for health and strength.
The rules make provision for the following matters, in general terms:
| SMR | Provision |
| 7 | A register of prisoners must be kept in all places of detention, containing a number of required pieces of information, including the prisoner’s identity, the reasons for commitment and the authority therefore, the day and hour of his admission and release. |
| 8 | Different categories of prisoners should be kept separate. |
| 9-14 | Accommodation must comply with conditions relating to size, number of occupants, lighting, ventilation and sanitation. |
| 15-16 | Facilities should be provided for the maintenance of personal hygiene. |
| 17-19 | Clothing and bedding must be provided to a specified standard. |
| 20 | Food and water of adequate quality must be provided. |
| 21 | Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end, space, installations and equipment should be provided. |
| 22-26 | Every institution should have the services of at least one qualified medical officer who should have some knowledge of psychiatry. Prisoners must undergo medical inspection as soon as possible after admission; prisoners suspected of infectious or contagious conditions must be segregated. The medical services must include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality, and each prisoner is entitled to the services of a dentist. Special accommodation must be provided for all necessary pre-natal and post-natal care and treatment. Where specialised treatment is required, the prisoner shall be transferred to specialised institutions or to civil hospitals. |
| 27-32 | Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life.
No prisoner shall be employed, in the service of the institution, in any disciplinary capacity.
Conduct constituting a disciplinary offence, types and duration of punishment, and the authority competent to impose such punishment must always be determined by the law or regulation of the competent administrative authority.
No prisoner shall be punished unless he/she has been informed of the offence alleged and given a proper opportunity of presenting a defence (where necessary and practicable, through an interpreter). The competent authority shall conduct a thorough examination of the case.
Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.
Punishment by close confinement or reduction of diet or any other punishment that may be prejudicial to the physical or mental health of a prisoner shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he/she is fit to sustain it. |
| 33-34 | Instruments of restraint, such as handcuffs, chains, irons and straight-jacket, shall never be applied as a punishment; only as a precaution against escape during a transfer, for medical reasons, or as a last resort to exercise control of the prisoner. |
| 35-36 | Prisoners must be informed of the rules of the institution and given an opportunity to make complaints. |
| 37-39 | Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits. Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with diplomatic and consular representatives of their State.
Prisoners shall be kept informed regularly of the more important items of news by newspapers or radio or by any similar means as authorised or controlled by the institution’s administration. |
| 40 | Access to books should be permitted. |
| 41-42 | Prisoners should be allowed to practice their religious beliefs as far as practicable. |
| 43 | All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he/she is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition. On the prisoner’s release, all such articles and money shall be returned to him except in so far as he has been authorised to spend. The prisoner shall sign a receipt for the articles and money returned to him. Any money or effects received for a prisoner from outside shall be treated in the same way. If a prisoner brings in any drugs or medicine, the medical officer shall decide what use shall be made of them. |
| 44 | Notification of death, illness, or transfer must be passed on to relatives or the prisoner as appropriate. |
| 45 | When the prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible. It is prohibited to transport prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship. |
| 46-54 | Detailed rules exist as to the selection and functions of institutional personnel. |
| 55 | Regular inspections of the institution should be carried out by an appropriate authority. |
(iii) The Body of Principles details a set of principles which are phrased in a very general terms so as to apply to all persons held under any form of detention or imprisonment, including the provision of information to prisoners on their rights, and the means by which they might be enforced, the placement of prisoners as close as possible to their normal place of residence, the securing of regular contact with family and legal representatives, and the provision of proper process for disciplinary proceedings.
(b) Australian standards
The states of Victoria and Tasmania have enacted legislation that confers specific rights on prisoners, which generally reflect the minimum international human rights standards, although this legislation does not give rise to any specific remedy for breach of those rights. Furthermore the rights are expressed in somewhat general terms.
Otherwise the states and territories have their own Acts and Regulations, which specify the obligations and entitlements of inmates, prison management procedures, and rules.
In addition, a set of Standard Guidelines for Correctional Centres in Australia has been established. They reflect the UN Standard Minimum Rules for the treatment of prisoners, and the Council of Europe Minimum Rules, with some modifications to accommodate Australian conditions. Although they are not binding on the Australian states and territories, and do not have the force of law, and although they do not include any provision for addressing the consequences of non-compliance, they do have the value of providing guidance to legislatures and to prison authorities in the drafting of local rules. They extend to matters such as:
· The provision of written and verbal information concerning all matters relevant to the prisoner’s imprisonment in a language and form which the prisoner can understand;
· the opportunity to make complaints or requests to a designated authority;
· the entitlement to inform families of their detention and to ongoing telephone access and visits;
· the right to seek assistance and to have legal visits;
· classification according to their needs, and development of a program for their rehabilitation;
· the provision of suitable accommodation and of the necessary facilities to maintain their general hygiene;
· the prohibition of collective punishment;
· the prohibition of prolonged solitary confinement, corporal punishment, reduction of diet and other cruel, inhumane or degrading punishments;
· restriction on the use of instruments of restraint and chemicals, save for control where other measures have failed;
· the provision of punishment for prison offences only in accordance with relevant laws and regulations, and subject to proper process;
· the provision of proper clothing, bedding, food and water, including special dietary food, where necessary for medical reasons, or for compliance with religious duties;
· access to (paid) productive work, education and leisure facilities, to open air for prescribed periods, and to library and information resources;
· the provision of proper health (medical and dental) services, and access to specialist and psychiatric care;
· the provision of accommodation for pre and postnatal care, and of suitable arrangements to permit children, subject to certain conditions, to live with their mothers while they are in prison;
· the rights to practise a religion of the prisoner’s choice, and to have access to qualified representatives of those religions, or in the case of Aboriginal or Torres Strait Islanders, to their elders;
· access of foreign nationals to diplomatic and consular representatives of the countries to which they belong or to the national or international authority, whose task it is to protect them.
While the international instruments do not form part of Australian domestic law and, as a result, cannot operate as a direct source of individual rights and obligations, courts can properly make reference to them to assist in clarifying and interpreting domestic law. The extent to which this has occurred, however, has been limited; there has been no attempt, for example, to follow the more proactive approach adopted in Europe, particularly in the European Commission on Human Rights and the European Court of Human Rights, which have considered complaints from prisoners on a wide variety of issues.
10. Terrorism and Organised Crime
There are some provisions in Australian law which confer powers of interrogation of persons suspected of having information concerning terrorist activities, and also concerning organised or major criminal activities which not only enlarge upon the generally permitted powers of detention for interrogation, but also depart from the right to silence in so far as they require the subject of the interview to supply the information and documents or objects which are required.
(a) Terrorist Activity
Under the Australian Security Intelligence Organisation Act, a regime has been established for the detention and questioning, under warrant, of persons suspected of having information relevant to a terrorist offence. Terrorist offences include terrorist acts, as well as conduct that involves providing or receiving training, directing organisations, possessing things and collecting or making documents, concerned with those acts.
The warrant is issued by Federal Judges or Magistrates, authorised for that purpose, and the investigation (by an ASIO officer or officers) is supervised by a former Judge who is authorised to act in that capacity. The role of the supervising official is to inform the subject of his or her rights and to supervise the interrogation so as to ensure that it is conducted humanely, and that it is neither unfair or oppressive, or subject to any form of cruelty or degrading treatment.
A warrant may allow for up to 24-hour questioning in 8 hour blocks, and the maximum period of detention allowed is 168 continuous hours, after which the subject must be released. Force and restraint is only permitted where that is necessary and reasonable to arrest the suspect and to ensure his or her continued detention. It cannot be used as a punishment, or as an encouragement to volunteer information. Provision is made to ensure that the subject has proper meals and that his health, religious, sleep and personal hygiene requirements are met.
The interrogation must be video recorded. The subject of the warrant is permitted to have contact with a third person, where that is authorised by the warrant; and in the case of complaints concerning the detention and questioning, with the Inspector-General of intelligence and security, or the Commonwealth Ombudsman. There is, however, no general entitlement to legal representation, or facility for ongoing contact with a family member or friend.
The subject cannot refuse to give any information, or to provide any record or object which is requested in accordance with the warrant, and which is within his knowledge or control. Any information supplied can be used in a trial for a terrorism offence. Offences are created for refusing to supply information and for giving false or misleading information.
The legislation seeks to achieve the balance between the protection of individual human rights and national security, and to comply with the derogation from such rights permitted under Article 4 of the International Covenant on Civil and Political Rights ("applicable in times of public emergency which threatens the life of the nation"). There are, however, several aspects of this and other international instruments with which it arguably does not fully comply.
(b) Crime Commissions
The Crime Commission of New South Wales and the Australian Crime Commission are agencies created to investigate organised and major crime. They have extensive powers to summon witnesses to provide information and documents or things, which might assist in such investigations. In each instance, the summonsed witness is required to provide the required information and documents; refusal to do so is a punishable offence. The hearings are conducted in private, and while legal representation is permitted, the summonsed party is effectively subject to temporary detention for the purposes of being interviewed.
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