Recommendation 329

This recommendation is assigned to CSNSW.

Recommendation

That the National Standards Body comprising Ministers responsible for corrections throughout Australia give consideration to the drafting and introduction of legislation embodying the Standard Guidelines and in drafting such legislation give consideration to prisoners' rights contained in Division 4 of the Victorian Corrections Act 1986.

Context

The Royal Commission acknowledged that the effective enjoyment of a human right is more substantial that its legal prescription and identified that Prisoner rights as identified in the Corrections Act 1986 (VIC) related to adequate food, medical and psychiatric care, annual review of classification, to make complaints concerning prison management to the Minister, Director-General, Governor, Official Visitor and the Ombudsman with an express provision that Ombudsman letters not be opened by prison staff, to send and receive other letters uncensored by prison staff subject to security considerations and to practice a religion of the prisoners choice. Recommendation 329 is directed at establishing basic prisoner rights in legislation across Australia.  

Detail of implementation

This recommendation is directed at the Corrective Services Ministers Council (CSMC), the NSW Minister for Corrections sits on this Council. The spirit of this guideline has been implemented as the National Standards Body are responsible for endorsing National Standards with respect to Corrective Services across Australia.  The standard guidelines were amended in 1992 to reflect recommendations of the RCIADIC. 

Each jurisdiction publishes those standards on their websites and NSW provides for similar rights to those in the Corrections Act 1986 (VIC) in the Crimes (Administration of Sentences) Act 1999. 

National Standards Body & Guiding Principles

Until 2011, Corrective Services Ministers were part of the Ministerial Council for the Administrations of Justice under the Council of Australian Governments (COAG).  Following the 2011 Hawke review of Ministerial Councils, COAG agreed to a comprehensive reform plan and as part of this process Corrective Services Ministers lost its remit as of 30 June 2011.  In 2011, it was agreed to establish an informal body for Corrective Services Ministers that would meet once per year to discuss and approve national matters referred by CSAC.  During the 2020 review of the former COAG Councils and Ministerial Forums, it was agreed ‘where forums are disbanded Ministers should be encouraged to hold occasional gatherings to share best practice and build relationships across the federation or deal with one-off issues, without the structure and trappings of official meetings’.  It was agreed by Corrective Services Ministers that as CSMC was already an informal body that meets under less formal arrangements, that CSMC would continue in its current format.

National Standards – Historical context

The first edition of the Minimum Standard Guidelines for Australian Prisons were first published in 1978.  

In 1986, Community-based corrections were incorporated and the Principles expanded to Minimum Standard Guidelines for Corrections in Australia and New Zealand. 

 In 1992, the revision of the Principles considered the recommendations of the Royal Commission into Aboriginal Deaths in Custody.  

In 2012, the Principles were re-titled to the ‘Standard Guidelines for Corrections in Australia’.  

During the 2018 review, the Principles were rebranded to the Guiding Principles for Corrections in Australia, to reflect its purpose as a national statement of intent and a foundation for the development of agency specific policies, procedures and standards. The Principles have been reframed as core outcome focussed principles, beyond minimum standards, to encourage each agency to strive to achieve best practice that is fit for purpose in each environment.

Endorsement of the Principles

The Principles are endorsed by Corrective Services Ministers at the Corrective Services Ministers’ Conference (CSMC) after being endorsed by the Corrective Services Administrators’ Council (CSAC). CSAC and CSMC comprises Corrective Services Administrators and Ministers in each State, Territory and New Zealand.  The Commonwealth sits as an observer to both CSAC and CSMC through the Attorney-General’s Department.

Once the Principles are endorsed by CSAC and Corrective Services Ministers they are published on each correctional agencies website.

Current Principles –  The Guiding Principles for Corrections in Australia (ed. 2018)

The Guiding Principles for Corrections in Australia (ed. 2018) (the Principles) represent a national intent around which each Australian state and territory will develop its practices, policies and performance standards.  The Principles are outcomes focussed articulating the impact of correctional services and interventions rather than the processes involved in corrections activities and support Australian correctional services to achieve best practice.

In the 2018 revision of the Principles there was focus on contemporary and emerging themes, trends and challenges facing correction, one of these is ‘the continued and increased overrepresentation of Aboriginal and Torres Strait Islander people within the criminal justice system.  

CSNSW is responsible for ensuring that NSW Correctional centres provide humane prison conditions for inmates, as included in the objects of the Crimes (Administration of Sentences) Act 1999.

Corrections Act 1986 (Vic) Division 4 – Prisoners Rights – the earliest version available online is for 1997. The 1997 version lists the following rights (section 47)

(1) Every prisoner has the following rights— 

 (a) if not ordinarily engaged in outdoor work, the right to be in the open air for at least an hour each day, if the weather permits; 

(b) the right to be provided with food that is adequate to maintain the health and wellbeing of the prisoner;   

(c) the right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner's religious beliefs or because the prisoner is a vegetarian;  

(d) the right to be provided with clothing that is suitable for the climate and for any work which the prisoner is required to do and adequate to maintain the health of the prisoner; 

(e) if not serving a sentence of imprisonment, the right to wear suitable clothing owned by the prisoner; 

(f) the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner's own expense, a private registered medical practitioner physiotherapist or chiropractor chosen by the prisoner;  (2023 version includes dentist) 

(g) if intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor's approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;  

(h) the right to have access to reasonable dental treatment necessary for the preservation of dental health;  

(i) the right to practise a religion of the prisoner's choice and, if consistent with prison security and good prison management to join with other prisoners in practising that religion and to possess such articles as are necessary for the practice of that religion;  

(j) the right to make complaints concerning prison management to the Minister, the Secretary, the Governor, an official visitor and the Ombudsman;   

(k) the right to receive at least one visit which is to last at least half an hour in each week under section 37;  

(l) the right to be classified under a classification system established in accordance with the regulations as soon as possible after being sentenced and to have that classification reviewed annually;  

(m) the right to send letters to, and receive letters from, the Ombudsman or the Ombudsman's officers, without those letters being opened by prison staff; (2023 version slightly amended to provide for exceptions) 

(n) the right to send and receive other letters uncensored by prison staff; 

(o) the right to take part in educational programmes in the prison.

(2) A prisoner's rights under this section are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law. 

(3) Sub-section (1)(m) does not prevent the opening of letters in accordance with section 28(3) of the Ombudsman Act 1973 or section 86L(7) of the Police Regulation Act 1958. 

(4) Despite sub-section (1)(n), if the Governor reasonably believes that any letter sent or received by a prisoner is a threat to prison security or may be of a threatening or harassing nature, the Governor may—  (a) if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or  (b) if the belief concerns only part of a letter, cause the relevant part of the letter to be censored. 

Evidence

• The Guiding Principles for Corrections in Australia (ed. 2018) (the Principles)