• Specific Year
    Any

Groves, Matthew --- "International Law and Australian Prisoners" [2001] UNSWLawJl 11; (2001) 24(1) UNSW Law Journal 17

[*] BA, LLB (Hons); Barrister and Solicitor of the Supreme Court of Victoria; Legal Policy Officer, Victorian Bar. The views expressed in this article are those of the author only. The author gratefully acknowledges the assistance of Emeritus Professor Enid Campbell for her comments on drafts of this article.

[1] Other legislation important to the treatment of prisoners and the management of prisons includes the statutes creating the office of Ombudsman and Freedom of Information legislation. All Australian jurisdictions have Ombudsmen, who are granted jurisdiction to investigate complaints from persons, including prisoners, who are dissatisfied about the administrative acts and practices of public officials and agencies. Freedom of Information legislation, which exists in all Australian jurisdictions except the Northern Territory, has also proved useful for prisoners. The general right of access to information, though subject to many exemptions, often enables prisoners to gain access to much of the information related to decisions that affect them, which would otherwise be inaccessible.

[2] See Matthew Groves, ‘Proceedings for Prison Disciplinary Offences’ [1998] MonashULawRw 14; (1998) 24 Monash University Law Review 338.

[3] I use the term ‘international instruments’ rather than ‘international law’ because many model guidelines and international documents concerning prisoners do not have the force of law (see below Part IV).

[4] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[5] There were, however, many local prisons used to hold debtors and petty criminals. On this aspect of penal history see generally Sean McConville, A History of Prison Administration – Volume 1: 1750-1877 (1981) and English Local Prisons 1860-900: Next Only to Death (1995).

[6] The widespread use of imprisonment marked a fundamental change in social order and punishment, see: Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1780-1850 (1978); Michel Foucault, Discipline and Punish – The Birth of the Prison (1979). For an excellent interdisciplinary history of prisons in Western society see Norval Morris and David Rothman (eds), The Oxford History of the Prison: The Practice of Punishment in Western Society (1998).

[7] This feudal doctrine was subject to many complexities. For a detailed historical analysis see Jacob Finkelstein, ‘The Goring Ox: Some Historical Perspectives on Deodands, Wrongful Death and the Western Notion of Sovereignty’ (1973) 46 Temple Law Quarterly 169. The High Court has held that the doctrine remains part of the law of Australia until expressly abolished: Dugan v Mirror Newspapers (1978) 142 CLR 583. Various aspects have, however, been removed by statute; see, eg, Felons (Civil Proceedings) Act 1981 (NSW) and Prisoners (Removal of Civil Disabilities) Act 1991 (Tas). Both Acts enable prisoners to commence legal proceedings in various circumstances, subject to specific requirements. On the NSW legislation, see George Zdenkowski, ‘NSW Prisoners and Access to Courts: Disappointing Legislation’ (1981) 6 Legal Services Bulletin 148.

[8] While the doctrine of civil death may no longer prevail, prisoners still suffer many civil disabilities. For example, many prisoners are disenfranchised, and those eligible to vote face practical difficulties in exercising this right. See Graeme Orr, ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners’ [1998] FedLawRw 3; (1998) 26 Federal Law Review 55.

[9] Ironically, it has long been clear that courts have jurisdiction over prisons, and particularly over the behaviour of gaolers. In the 18th century, Lord Mansfield stated that he ‘had no doubt of the power of the court over all prisons in the kingdom’: Re Rioters [1774] Loft 436. That jurisdiction was simply never exercised.

[10] The leading case on this point was Arbon v Anderson [1943] KB 252. Other frequently cited cases include: Morris v Winter [1930] 1 KB 243; Flynn v R [1949] HCA 38; (1949) 79 CLR 1; Bromley v Dawes (1983) 10 A Crim R 98, 113 (White J); Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, 328-9 (Hutley JA).

[11] Nor did prisoners have any remedy in private law. For example, provisions on the conferral of remissions were not regarded as mandatory. A prisoner had no right to remissions and, therefore, no right of action in false imprisonment if remissions were withheld and the prisoner detained beyond the earliest eligible release date: Morris v Winter [1930] 1 KB 243; ‘Case and Comment: Silverman v Prison Commissioners[1956] Criminal Law Review 56; ‘Case and Comment: D’Arcy v Prison Commissioners[1956] Criminal Law Review 56.

[12] Flynn v R [1949] HCA 38; (1949) 79 CLR 1, 8.

[13] H R W Wade, Administrative Law (5th ed, 1982) 219.

[14] A principle strongly affirmed in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58.

[15] [1983] 1 AC 1.

[16] On this issue, the House of Lords accepted that a more clearly worded regulation would have entitled the Governor to halt the letter. But subsequent European decisions have emphatically rejected the notion that prison rules could limit a prisoner’s right of correspondence in such a way, even if the relevant rules simply require that a prisoner exhaust all potential administrative remedies before he or she commences legal action: Silver v UK [1983] ECHR 5; (1983) 5 EHRR 347, 371-84; McCallum v UK (1991) 13 EHRR 597, 609-10. This principle has since been accepted by English courts in the interpretation of English prison regulations: R v Secretary of State for the Home Department; Ex parte Leech [1993] EWCA Civ 12; [1993] 4 All ER 539.

[17] Raymond v Honey [1983] 1 AC 1, 10. This passage paraphrases, without citation, Coffin v Reichard 143 F2d 443, 445 (1944), in which it was stated that ‘a prisoner retains all the rights of an ordinary citizen except those expressly or by necessary implication, taken from him by law’.

[18] Although the decision has been cited with approval in several Australian cases, see, eg, McEvoy v Lobban (1988) 35 A Crim R 68, 71 (Carter J); Kuczynski v R (1994) 72 A Crim R 568, 583 (Wallwork J).

[19] See, eg, the decision in Binse v Williams [1998] 1 VR 381. In that case (the facts of which are explained below in Part VIII), the Court of Appeal of Victoria held that an application for review of a decision of a prison governor (on the ground of unreasonableness) should be determined by reference to the views of ‘the reasonable prison governor’ rather than the reasonable person. This formulation of the test of unreasonableness is most unfavourable to prisoners. Justice Charles also suggested that decisions of prison governors ‘must be treated as authorised if they are reasonably capable of being regarded as appropriate’: 394. This favourable presumption renders the availability of review otiose. Other cases in which courts have shown a reluctance to query the decisions of prison officials include: McEvoy v Lobban [1990] 2 Qd R 235; Gray v Hamburger [1993] 1 Qd R 595; Fricker v Dawes (1992) 57 SASR 494.

[20] Prisoners A to XX (inclusive) v NSW (1994) 75 A Crim R 205; aff’d (1995) 38 NSWLR 622.

[21] See, eg, Mathew Groves ‘Administrative Segregation of Prisoners: Powers, Principles of Review and Remedies’ [1996] MelbULawRw 1; (1996) 20 Melbourne University Law Review 639, where it is argued that prisoners have no real prospect of gaining relief against decisions by prison officials to place or retain a prisoner in administrative segregation due to the combined effect of the broad and unstructured powers granted to prison officials and the refusal of courts to apply principles of judicial review with any rigour.

[22] Corrections Act 1986 (Vic) s 47(2).

[23] Commonwealth, Aboriginal Deaths in Custody: Response by Government to the Royal Commission (1992) vol 2, 1259-61. The Northern Territory stated that ‘cognisance’ would be given to the recommendation when prison legislation was amended or drafted. Queensland and South Australia noted that, if the recommendation was intended to provide the basis for the introduction of uniform legislative standards for the treatment of prisoners, it was unlikely that agreement could be reached between the various Australian jurisdictions. Western Australia did not accept that uniform standards should be adopted by legislation. The Commonwealth and the ACT gave unqualified support to the recommendation. However, at the time the Commission reported, s 20 of the Remand Centres Act 1976 (ACT) granted a small number of ‘entitlements’ to remand prisoners. The section expressly provides that the entitlements do not extend to convicted prisoners. That exclusion has not been removed in the several years since the Commission reported.

[24] See Corrections Act 1997 (Tas) s 29. The Tasmanian charter is modelled very closely on the Victorian example, but contains no provision which expressly states that the rights granted to prisoners are in addition to any other rights enjoyed by prisoners. It could be argued, however, that if the Tasmanian charter was intended to somehow limit or remove other rights that prisoners may enjoy, such a result would require an express legislative statement to that effect.

[25] See Corrections Act 1986 (Vic) ss 47(1)(a), (b), (d), (h) and (k); Corrections Act 1997 (Tas) ss 29(1)(a), (b), (d), (h) and (j).

[26] In the absence of an enforcement mechanism, it is highly unlikely that a court would accept that such a breach was intended to confer on prisoners a private right of action in the tort of breach of statutory duty. A legislative intention to confer such a right is an important element of that tort, which is determined by reference to the intention of the legislature and the construction of the relevant statute: O’Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464. In R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1991] 1 AC 58, the House of Lords rejected emphatically the suggestion that a breach of correctional legislation could give rise to a cause of action against prison officials. A court might, however, issue an injunction against gaolers who prevented prisoners from enjoying one or more rights contained in the charter, such as daily exercise. Mandamus could also be issued to require prison officials to provide, or allow prisoners to enjoy, the relevant statutory right. It is arguable that any prison official faced with the possibility of defending an application for such an order would be likely to adopt a pragmatic solution, and provide at least a minimum of whatever was required to satisfy the relevant right. In view of the vague language in which the rights are expressed, such a pragmatic solution would not be difficult to achieve.

[27] Corrections Act 1986 (Vic) s 47(1)(o). There is no equivalent provision in the Tasmanian charter.

[28] Corrections Act 1986 (Vic) s 47(1)(i); Corrections Act 1997 (Tas) s 29(1)(i). The legislation of other jurisdictions concerning the possession of religious material and the participation in services, though not contained in a charter of ‘rights’, is very similar. See, eg, Prisons (Correctional Services) Act 1980 (NT) ss 85-6.

[29] Corrections Act 1986 (Vic) s 47(1)(l).

[30] Corrections Act 1997 (Tas) s 29(1)(l).

[31] For example, in New South Wales, a prisoner may send mail, without interruption or censorship, to the following State bodies or office holders: the State Ombudsman, Judicial Commission, Crime Commission, Anti-Discrimination Board, Equal Opportunity Tribunal, Independent Commission Against Corruption, Privacy Committee, Legal Aid Commission, Legal Services Commissioner, Legal Services Tribunal, and the Inspector-General of Corrective Services. Similar rights attach to communications to the National Crime Authority and the Commonwealth Ombudsman: Crimes (Administration of Sentences) (Correctional Centre Administration Routine) Regulations 1995 (NSW) reg 118.

[32] However, it should be noted that a Victorian prisoner (Mr Minogue) has recently commenced several unsuccessful legal actions against prison officials, founded mostly on international instruments. The Full Court of the Federal Court unanimously dismissed an action seeking to invoke the original jurisdiction of the High Court for alleged violations of rights specified under international law, but the Court noted that a possible related action under s 47 of the Corrections Act 1986 (Vic) remained unresolved: Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 371. Minogue has demonstrated great tenacity in commencing and maintaining several actions, which were opposed by skilful and experienced counsel. This resolve may lead him to commence the first action based solely on s 47 (which would need to be commenced in the Supreme Court of Victoria).

[33] Opened for signature 16 December 1966, 999 UNTS 171, art 10(1) (entered into force 23 March 1976). Aspects of the ICCPR are discussed below in Part VII.

[34] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

[35] Opened for signature 26 November 1987, ETS No 126 (entered into force 1 February 1989).

[36] For example, the Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), is often thought to extend to all prisoners, yet applies only to prisoners of war: see Suzanne Bernard, ‘An Eye for an Eye: The Current Status of International Law on the Humane Treatment of Prisoners’ (1994) 25 Rutgers Law Journal 759, 765-6.

[37] ESC Res 663C, UN Doc E/3048 (1957). (The UNSMR were adopted by the first UN Congress on the Prevention of Crime and the Treatment of Offenders on 30 August 1955, and two years later they were endorsed by the UN Economic and Social Council.) On the history of the UNSMR see William Clifford, ‘The Standard Minimum Rules for the Treatment of Prisoners’ (1972) 66 American Journal of International Law 232. Clifford notes that the history of the UNSMR has not been adequately documented but suggests that they were devised in order to ‘spell out the conditions which are thought to be minimal to preserve human dignity, maintain contact with outside society, and encourage a form of classification that protects prisoners and reduces the risk of contamination for those younger and less addicted to crime’: 233.

[38] Daniel Stoker, ‘World Implementation of the United Nations Standard Minimum Rules for the Treatment of Prisoners’ (1975) 10 Journal of International Law and Economics 453.

[39] UNSMR, above n 37, r 66. The same rule indicates that the UNSMR extend to prisoners who are subject to security or corrective measures upon order of a judge.

[40] Ibid rr 35-6.

[41] Ibid rr 17-20.

[42] Ibid rr 22-6.

[43] Ibid r 37.

[44] Ibid rr 39-40.

[45] Ibid rr 41-2.

[46] Ibid r 33. This provision is similar to art 10(1) of the ICCPR.

[47] Ibid rr 31, 34. Restraints are not prohibited absolutely, only as a form of punishment. This qualification is important. In Binse v Williams [1998] 1 VR 381 (see below Part VIII), restraints were applied in order to prevent future escape attempts and violence, rather than to punish the prisoner for previous examples of such behaviour. The former is not prohibited under the UNSMR.

[48] UNSMR, above n 37, r 32(1).

[49] See Jiri Toman, ‘Quasi-Legal Standards and Guidelines for Protecting Human Rights’ in Hurst Hannum (ed), Guide to International Human Rights Practice (3rd ed, 1999) 203. It was accepted that the UNSMR have no legal force in Collins v South Australia [1999] SASC 257; (1999) 74 SASR 200, 208 (Millhouse J).

[50] Toman, above n 49, 205.

[51] ESC Res 47, UN Doc E/Res/1984/47 (1984) Procedure 1.

[52] The Secretary-General submitted reports on the implementation of the UNSMR every five years to the meetings of the UN Congress on the Prevention of Crime and the Treatment of Offenders (also held every five years). This practice ceased in 1990. Subsequent documentation on the UNSMR has drawn from the responses to annual surveys submitted by individual states. The most recent report on the UNSMR was in 1996: Secretary-General of the United Nations, Addendum to the Report of the Secretary-General: Use and Application of the Standard Model Rules for the Treatment of Prisoners, UN Doc E/CN.15/1996/16/Add.1 (1996).

[53] For example, in 1975, Australia submitted a response to a UN survey stating that Australian prisons ‘substantially complied’ with the UNSMR: Australia, Australian Report to the Secretary-General of the United Nations on Standard Minimum Rules for the Treatment of Prisoners (1975), quoted in Australian Law Reform Commission, Sentencing of Federal Offenders, Report No 15 (1980) [233]. Yet the findings of the Royal Commission into New South Wales Prisons at the time suggest that this statement was fanciful: see George Zdenkowski and David Brown, The Prison Struggle (1982) 158-264.

[54] Toman, above n 49, 203.

[55] Ibid 202.

[56] Human Rights Committee, ‘General Comment 21’ in Compilation of general comments and general recommendations adopted by human rights treaty bodies, [5], UN Doc HRI/GEN/1/REV.1 (1994); reproduced in (1994) 1(2) IHRR 28.

[57] The General Comment does not actually state this, but it does stress that the obligation created by art 10(1) of the ICCPR is ‘a fundamental and universally applicable rule’: ibid [4]. In my opinion, this point suggests that the Human Rights Committee does not view art 10(1) in a minimalist sense, according to which compliance with the UNSMR would itself be sufficient.

[58] For example, the UNSMR influenced the work of the sentencing project of the Australian Law Reform Commission: see Australian Law Reform Commission, above n 53, [225]-[235]. The Commission stated that reports provided by Australia to the UN on the implementation of the UNSMR, which suggested a high level of compliance with the Rules, should be viewed cautiously. The Commission noted that responses were not collected scientifically, but instead were based on ‘largely impressionistic’ information supplied by State prison officials: [233]. It should be noted that a resolution of the American Correctional Association acknowledged the value of the UNSMR and called for American and Canadian delegates to the UN to press for the inclusion in the UNSMR of the experience gained in those countries in the implementation of model standards and codes of accreditation of prisons: American Correctional Association, Proceedings of the 114th Annual Congress of the American Correctional Association (1984) 211-12.

[59] Royal Commission into New South Wales Prisons, Report of the Royal Commission into New South Wales Prisons (1978). Justice Nagle made many findings of systematic brutality and mistreatment of prisoners. The Report revealed such an extraordinary level of maladministration within the New South Wales prison system that it appeared as if the standards contained in model rules and guidelines were beyond reach. Nevertheless, in one of many references to the UNSMR, Nagle J noted that while ‘circumstances may make it difficult to comply literally with every rule ... no one would suggest that a prison system is not bound in the containment of prisoners, by normal codes of proper conduct’: 214. See also Recommendation 186, which stated that the UNSMR should be observed by prison officials so far as practicable.

[60] Commonwealth, Aboriginal Deaths in Custody: Response by Government to the Royal Commission (1992) vol 3, 1256-7.

[61] GA Res A43/173, UN Doc A/RES/43/173 (1988). For a brief account of the history of the Body of Principles see Tullio Treves, ‘The UN Body of Principles for the Protection of Detained or Imprisoned Persons’ (1990) 84 American Journal of International Law 578. See also Nigel Rodley, The Treatment of Prisoners Under International Law (2nd ed, 1999) 326-33; Amnesty International, A Guide to the United Nations Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment (AI Index IOR/52/04/89).

[62] This point is highlighted by the final (and unnumbered) clause of the Body of Principles, which states that the principles are not to be construed as restricting or derogating from any right contained in the ICCPR.

[63] Body of Principles, above n 61, nos 13, 20. In a large country such as Australia, this issue can be especially important to prisoners. The transfer of a prisoner from one part of a large State or Territory to another can effectively deprive the prisoner of all personal contact with his or her family and friends.

[64] Ibid nos 15, 19.

[65] Ibid no 18. Visits with lawyers must be conducted out of the hearing range of all prison officials: no 18.4.

[66] Ibid no 30. There is no requirement that disciplinary proceedings be subject to judicial review. Accordingly, the availability of some form of administrative review or appeal would be sufficient. In some Australian jurisdictions, a prison disciplinary decision may be reviewed by a more senior prison official, see, eg, Corrections Act 1997 (Tas) s 60, under which a prisoner has the right to appeal against disciplinary decisions to the Director of Corrective Services. Yet in other jurisdictions, there are no such rights, see, eg, Corrections Act 1986 (Vic) s 50, which provides that all prison disciplinary proceedings are conducted by prison staff. The procedure includes a wide privative clause that seeks to exclude all forms of review and appeal: s 50(9).

[67] Council of Europe, Committee of Ministers, Recommendation No R(87)3 of the Committee of Ministers to Member States on the European Prison Rules (1987).

[68] The EPR were modelled on the European Standard Minimum Rules: Council of Europe, Resolution (73)5 on the European Standard Minimum Rules (1973), which were themselves based on the UNSMR.

[69] Neither the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), nor the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, opened for signature 26 November 1987, ETS No 126 (entered into force 1 February 1989), contain detailed or systematic principles for the treatment of prisoners.

[70] EPR, above n 67, rr 1-6.

[71] Nancy Louckes (ed), Prison Rules: A Working Guide (1993) 96.

[72] Ibid 11.

[73] The Preamble to the earlier version of the EPR noted that the promulgation of the Rules ‘invites governments of member States to report every five years to the Secretary of the Council of Europe, informing him of the action they have taken on this resolution’ (emphasis added).

[74] [1977] 6 European Commission of Human Rights Decisions and Reports 170. This case concerned the European Standard Minimum Rules (see above n 68), the predecessor of the EPR.

[75] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

[76] Eggs v Switzerland [1977] 6 European Commission of Human Rights Decisions and Reports 170, 181. The Commission considered a similar complaint in Koskinen v Finland (1994) 18 EHRR CD 146. In that case, a prisoner alleged he had been held in isolation for long periods and that many aspects of the condition of his detention, such as sanitation facilities and medical treatment, were harsh or inadequate. The Commission referred to an investigation conducted by the European Committee for the Prevention of Torture (‘CPT’) into conditions for prisoners held in solitary confinement in the same prison (see (1994) 18 EHRR CD 146, 161). The CPT extensively criticised the relevant prison but declined to find that the conditions amounted to a breach of art 3 of the European Convention on Human Rights. Neither the Commission nor the CPT made significant reference to the EPR. Neither body considered whether it might have been more appropriate to determine whether the conditions in question amounted to inhuman or degrading treatment by examining the standards established by the EPR. The Commission dismissed the complaint as manifestly ill-founded.

[77] Stephen Livingstone and Tim Owen, Prison Law (2nd ed, 1999) 120-1.

[78] See Louckes, above n 71. The English Rules have since been revised and remade. The Prison Reform Trust has not issued a similar comparative analysis with the new Rules.

[79] See Roy Morgan and Michael Evans, Protecting Prisoners – The Standards of the European Committee for the Prevention of Torture in Context (1999) 59, 106-10.

[80] Council of Europe, Committee of Ministers, Recommendation R(99)22 of the Committee of Ministers to Member States concerning Prison Overcrowding and Prison Population Inflation (1999). See Hans-Jürgen Bartsch, ‘Council of Europe: Legal Co-operation in 1988-9’ in P Eeckhout and T Tridimas (eds) (1999-2000) 19 Yearbook of European Law 533, 544.

[81] Australia, The Corrective Services Ministers’ Conference, Standard Guidelines for Corrections in Australia (2nd ed, 1994). The first draft of the Guidelines was prepared by Colin Bean. This draft version was circulated to various interest groups and all correctional departments of Australia and New Zealand. A revised version was then approved by the correctional Ministers of Australia and New Zealand. The history of the Australian Guidelines is explained briefly in Australian Law Reform Commission, above n 53, [229]. A review of the Guidelines has recently been commissioned by the Ministers.

[82] The influence of the UNSMR and the EPR is expressly acknowledged in the Preface to the Australian Guidelines.

[83] This point was acknowledged by Millhouse J in Collins v South Australia (1999) 70 SASR 200, 208.

[84] Australian Guidelines, above n 81, no 1.1. In keeping with this view, the Guidelines address aspects of prison administration other than the treatment of prisoners, such as the selection and training of prison staff, and non-custodial sentences: nos 3.4-3.13, pt 4.

[85] Ibid nos 5.66-79 (dealing with general health services) and nos 5.80-4 (dealing with psychiatrically disturbed and intellectually disabled prisoners). This section of the Australian Guidelines is easily the most detailed.

[86] Ibid no 5.29.

[87] Ibid no 5.31.

[88] Ibid no 5.39.

[89] Ibid nos 5.33, 5.43.

[90] Ibid no 5.44.

[91] Ibid no 5.71a. This guideline imposts a similar obligation in relation to Aboriginal and Torres Strait Islander prisoners.

[92] Ibid nos 5.85-9. While these guidelines are not gender specific, in practice, children are accommodated with female prisoners (and normally only in exceptional circumstances). For a detailed assessment of this area, see Ann Farrell, ‘Policies for Incarcerated Mothers and their Families in Australian Corrections’ (1998) 31 Australian and New Zealand Journal of Criminology 101.

[93] HREOC is established under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

[94] See Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11(1)(e), (f), (g); HREOC, Annual Report 1996/7 (1997) 15. On the meaning of ‘acts’ and ‘practices’ see Secretary, Department of Defence v HREOC (1997) 149 ALR 309.

[95] Human Rights and Equal Opportunity Commission, Annual Report 1994/5 (1995) 10. The Human Rights Commissioner appeared before the House of Representatives Standing Committee on Legal and Constitutional Affairs to give evidence in support of the International Transfer of Prisoners Bill 1996 (Cth), which was subsequently enacted: Human Rights and Equal Opportunity Commission, Annual Report 1996/7 (1997) 106.

[96] For example, HREOC is granted powers under s 20(1) of the Racial Discrimination Act 1975 (Cth), s 48(1) of the Sex Discrimination Act 1984 (Cth) and s 67(1) of the Disability Discrimination Act 1992 (Cth).

[97] [1996] HREOCA 32 (Unreported, The Hon Robert Nettlefold, 26 November 1996).

[98] The Equal Opportunity (Infectious Diseases) Regulations 1994 (WA), which were made pursuant to s 66U of the Equal Opportunity Act 1984 (WA), and which exempted the prison management regime from the Act for six months. The exemption was designed to provide the Ministry of Justice with sufficient time to plan and implement a regime of treatment for HIV positive prisoners which did not contravene anti-discrimination legislation.

[99] HREOC may grant exemptions from pts 1 and 2 of the Disability Discrimination Act 1992 (Cth).

[100] Under s 76(1)(b) of the Disability Discrimination Act 1992 (Cth), the Disability Discrimination Commissioner may refer complaints to HREOC for investigation. On the history and scope of the Act see Melissa Tyler, ‘The Disability Discrimination Act 1992: Genesis, Drafting, and Prospects’ [1993] MelbULawRw 8; (1993) 19 Melbourne University Law Review 211.

[101] This argument was based upon two submissions. First, that facilities provided to prisoners were not ‘services’ for the purposes of disability legislation. Second, the managerial directives, upon which the treatment of HIV positive prisoners were based, were not ‘law’ within the meaning of s 47(3) of the Disability Discrimination Act 1992 (Cth), which provides that nothing in pt 2 of the Act (which contains the provisions against discrimination) renders unlawful anything done in pursuance of another law. Had this submission been accepted, the operation of the federal Act could have effectively been precluded by the promulgation of administrative rules by prison officials. Had the first submission been accepted, the treatment of prisoners would have been effectively removed from the scope of the Act.

[102] X and Y [1996] HREOCA 32 (Unreported, The Hon Robert Nettlefold, 26 November 1996) [5.3].

[103] See Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, in which the High Court held that legislation that allowed the determinations of HREOC to be registered in the Federal Court and enforced as orders of that Court was unconstitutional because it involved the exercise of the judicial power of the Commonwealth by a body which was not a court within the meaning of s 71 of the Australian Constitution.

[104] [2000] FCA 1892 (Unreported, Gray J, 20 December 2000).

[105] Justice Gray described the views expressed by HREOC as ‘simply opinions’: ibid [53].

[106] This limitation does not extend to all aspects of HREOC’s work. For example, the employment discrimination and equal opportunity provisions of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) extend to both the States and Territories as well as the Commonwealth. While employment discrimination would not normally be relevant to prisoners, the decision in X and Y demonstrates that disability discrimination may be a useful area of jurisdiction for prisoners.

[107] HREOC may be granted jurisdiction over State matters by arrangement between the Commonwealth and a State: Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11(1)(c), 16. No such arrangements concerning prisons ha ve been made. The jurisdiction of the Commission in X and Y arose by operation of s 13 of the Disability Discrimination Act 1992 (Cth) under which State and federal laws concerning disability discrimination may operate concurrently.

[108] (1992) 107 ALR 672, 679 (Mason CJ, Dawson and McHugh JJ), 688 (Brennan J), 697 (Deane and Toohey JJ). The Court divided on whether the Australian Constitution contained a general requirement that the laws of the Commonwealth should have a uniform operation throughout the Commonwealth. The case at hand raised this issue in the context of the differences in eligibility for parole and release that

federal prisoners might face in differing jurisdictions, and whether the Commonwealth Prisoners Act 1968 (Cth) and associated legislation that addressed these problems was invalid because it invested federal courts with non-judicial powers.

[109] Ibid 678 (Mason CJ, Dawson and McHugh JJ), 704 (Gaudron J).

[110] The issue in Leeth can be distinguished as the Court only examined mechanisms that ultimately determined the length of time served by federal prisoners, as opposed to examining the conditions under which sentences are served.

[111] In Leeth, no member of the Court suggested this could not be done. In my opinion, the power to do so could clearly be drawn from the executive and incidental powers: Australian Constitution, ss 51(xxxix), 61. Power could also be drawn from the inherent powers that arise by virtue of the Commonwealth’s status as a mature and sovereign nation: see generally Leslie Zines, The High Court and the Constitution (4th ed, 1997) chh 3, 12. The creation of a federal prison system was considered, and rejected, by a majority of the Australian Law Reform Commission in their report, Australian Law Reform Commission, above n 53, [153].

[112] For example, by using the external affairs power to directly incorporate the ICCPR and other relevant instruments into Australian law. This step would of course affect all prisoners.

[113] Cabal v United Mexican States [2000] FCA 1892 (Unreported, Gray J, 20 December 2000) [37].

[114] Ibid [51].

[115] HREOC has jurisdiction over federal ‘acts’ or ‘practices’. An ‘act’ is defined as an act done by or on behalf of the Commonwealth: HREOC Act 1986 (Cth) s 3(1). If the Commonwealth is obliged to take State prisons as it finds them, and the States must accept federal prisoners, it is arguable that the notion of agency that is implied by the definition of ‘act’ cannot operate because the States manage and administer federal prisoners in their own right.

[116] (1998) 54 ALD 389.

[117] On the very limited rights of prisoners to possess and use legal material see Matthew Groves, ‘Case and Comment: Rich v Van Groningen, Williams and Spandano(1997) 21 Criminal Law Journal 355.

[118] A similar restriction applies to the Territories. The definition of Commonwealth enactments, which HREOC may investigate, expressly excludes enactments of the Northern Territory and the Australian Capital Territory: Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3(1).

[119] Authorities cited included: The Commonwealth of Australia v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 233-4 (Brennan J), 268 (Deane J); Victoria v Commonwealth (1996) 187 CLR 416, 488 (Brennan CJ, Toohey Gaudron, McHugh and Gummow JJ).

[120] See Tasmanian Wilderness Society Inc v Fraser [1982] HCA 37; (1982) 153 CLR 270, 274 (Mason J). See also Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 305-6 (Mason CJ and McHugh J), 321 (Brennan J), 348 (Dawson J), 359-60 (Toohey J).

[121] Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11(1), (j) and (k).

[122] Support for this proposition was drawn from Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 579-80 (Mason CJ, Dawson, Toohey and Gaudron JJ), 595 (Brennan J). On the purpose and scope of mandamus see Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (1999) 582-610.

[123] Minogue v HREOC [1999] FCA 85; (1999) 166 ALR 129. The main ground of appeal was that Marshall J had not provided adequate assistance and guidance to the unrepresented applicant. The Full Court rejected this argument, holding that whilst Minogue was not legally qualified, he was able to make intelligent and reasoned arguments. The Court also noted that the clear and detailed submissions provided by other parties assisted Minogue by clarifying the nature of the proceedings and the issues in dispute.

[124] The apparent tension between art 50 and the jurisdiction of HREOC would be more problematic if the ICCPR was incorporated into Australian law. A finding to this effect was made in Collins v South Australia (1999) 70 SASR 200, 209-10, in which Millhouse J held that the inclusion of the ICCPR in a schedule to the HREOC Act had the effect of enacting the ICCPR in Australian domestic law. However, this conclusion was flatly rejected by the Full Court of the Federal Court in a subsequent application brought by Minogue: Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 371.

[125] This reasoning would only apply to investigations conducted under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(f), which enables HREOC to inquire into any ‘act or practice’, defined in s 3(1) by reference to the behaviour of the Commonwealth. Other aspects of HREOC’s powers are not constrained by use of the terms ‘acts’ or ‘practices’, for example, s 11(1)(g) (empowering HREOC to ‘promote an understanding and acceptance, and the public discussion, of human rights in Australia’), and s 11(1)(j) (enabling HREOC ‘on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights’).

[126] See, eg, Human Rights and Equal Opportunity Commission, above n 94, 61.

[127] It is fair to assume that the Commonwealth has failed to do so partly due to the high cost of establishing such facilities. There would also be significant practical problems with a separate federal prisons system. There are relatively few federal offenders, so it would not be realistic for the Commonwealth to locate prisons in all major centres. Accordingly, many offenders would be located very far from their normal place of residence. Furthermore, the Commonwealth gains a practical political advantage from the use of State prisons. At present, the Commonwealth is widely perceived as not holding any political responsibility for the management of prisons despite the presence of federal offenders in most prisons. As a result, federal politicians are not troubled by the intense publicity when escapes or riots occur. It is doubtful whether any federal Minister would willingly assume this aspect of Ministerial responsibility that would accompany the establishment of a federal prison system.

[128] This point was not pursued by Minogue on appeal: Minogue v Williams (1999) ALR 129, 136.

[129] A suggestion to this effect was made by an Australian member of the Human Rights Committee: Elizabeth Evatt, ‘Reflecting on the Role of International Communications in Implementing Human Rights’ (1995) 5 Australian Journal of Human Rights 20, 25. Evatt commented that the applicant in Toonen v Australia (1994) 1(3) IHRR 97 (see below n 130) was unable to effectively pursue his case in the Australian courts, and that the absence of such a remedy could have been added as a further ground to his complaint to the Human Rights Committee. While Evatt was commenting more generally about the absence of effective domestic remedies available for Australians, there is no reason why a complaint could not simply address the jurisdictional limitations of HREOC. Such an application would bring the federalist tensions involved in any expansion to the jurisdiction of HREOC (over actions of the Australian States and Territories) into sharp focus.

[130] This suggestion is speculative. The analysis of the Optional Protocol to the International Covenant on Civil and Political Rights in Part VII explains that a complainant must exhaust all domestic avenues of redress. That requirement could constitute a significant obstacle to such a complaint. The most well- known complaint by an Australian to the HRC, concerning the now repealed laws of Tasmania which outlawed homosexual activity between consenting adults, proceeded to the HRC in the absence of any opposition from the Commonwealth: Toonen v Australia (1994) 1(3) IHRR 97 (‘Toonen’). See Alexandra Purvis and Joseph Castellino, ‘A History of Homosexual Law Reform in Tasmania’ [1997] UTasLawRw 3; (1997) 16 University of Tasmania Law Review 12. The case involved an exceptional coalescence of events, and thus the change of law following Toonen may prove an anomaly. Toonen can be contrasted with another successful petition to the HRC: A v Australia (1998) 5 IHRR 78 (see below n 183 and accompanying text). Despite the adverse findings of the HRC in that case, the Commonwealth has not changed the relevant laws for the better, and continues to respond to suggestions that it should do so with hostility. It is fair to suggest that any application to the HRC which could lead to a finding that the Commonwealth should subject the States to the jurisdiction of HREOC would be strongly opposed by the States, and possibly also the Commonwealth (see above n 126). It is doubtful that a prisoner could mount a successful complaint to the HRC in the face of sustained government opposition, and even if they did, whether any legislative change would result.

[131] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Australia’s accession occurred on 25 September 1991 and, by virtue of art 9(2) of the Optional Protocol, took effect three months later. See generally Hilary Charlesworth, ‘Australia’s Accession to the First Optional Protocol of the International Covenant on Civil and Political Rights’ (1991) 19 Melbourne University Law Review 428; Christopher Caleo, ‘Implications of Australia’s Accession to the First Optional Protocol on Civil and Political Rights’ (1993) 4 Public Law Review 175.

[132] Article 1 of the Optional Protocol provides that a state which is a party to the ICCPR and then ratifies the Optional Protocol thereby accepts the competence of the HRC to receive and consider complaints from individuals (who are subject to the jurisdiction of that state) alleging that the state has violated any of the rights embodied in the ICCPR.

[133] Sir Anthony Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ (1996) 7 Public Law Review 20, 28. A similar comment was made in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 305 (Mason CJ and McHugh J). An Australian representative on the HRC has noted that because many states fail to provide effective domestic remedies to persons whose rights are violated under the ICCPR, the HRC spends a great deal of time acting as a primary fact-finder, which slows the work of the HRC significantly: Elizabeth Evatt, above n 129, 23-4.

[134] [1992] HCA 23; (1992) 175 CLR 1, 42.

[135] Complaints must be anonymous, and the subject matter of a complaint must not be incompatible with the provisions of the ICCPR.

[136] This policy was confirmed recently in relation to a communication forwarded to the HRC on the mandatory sentencing laws of Western Australia and the Northern Territory: see Commonwealth Attorney-General, Response to UN Human Rights Committee, Press Release, No 932 (6 March 2001) <http://www.law.gov.au/aghome/2001newsag/932_01.htm> at 26 May 2001.

[137] Articles 4 and 5. The practice of the HRC is explained in Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the ICCPR (1991).

[138] It should be noted that the procedures for the resolution of individual complaints are additional to the general monitoring function of the HRC established in art 40 of the ICCPR, whereby states are required to submit periodic reports on the implementation of the guarantees contained in the Covenant. On this aspect of the work of the HRC see Sarah Joseph, ‘New Procedures Concerning the Human Rights Committee’s Examination of State Reports’ (1995) 13 Netherlands Human Rights Quarterly 5; Ineke Boerefijn, ‘Towards a Strong System of Supervision: The Human Rights Committee’s Role in Reforming Report Procedure under Article 40 of the Covenant on Civil and Political Rights’ (1995) 17 Human Rights Quarterly 766.

[139] Article (10)(a).

[140] Article 1(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 8 (entered into force 26 June 1987), prohibits torture by reference to an extended and precise definition. Article 16(1) of the Convention also requires parties to ‘undertake to prevent ... cruel, inhuman, and degrading treatment’, but this latter phrase is not defined. It has been argued that the failure to include such a definition greatly reduces the scope of the definition of torture: Bernard, above n 36, 767-9.

[141] Bernard, above n 36, 768. Bernard notes that the concept of human dignity often accompanies international standards prohibiting torture and cruel, inhuman or degrading treatment.

[142] Human Rights Committee, above n 56.

[143] Amendola and Baritussio v Uruguay, HRC Communication No R.6/25 (25 January 1978); see Human Rights Committee, Report of the Human Rights Committee, 37 UN GAOR (Supp No 40), 187, UN Doc A/37/40 (1982).

[144] Conteris v Uruguay, HRC Communication No 139/1983 (17 July 1985); see Human Rights Committee, Report of the Human Rights Committee, 40 UN GAOR (Supp No 40), 196, UN Doc A/40/40 (1985). See also Human Rights Committee, Report of the Human Rights Committee, 38 UN GAOR (Supp No 40), Annex Item XV, UN Doc A/38/40 (1983).

[145] See the discussion in Nigel Rodley, The Treatment of Prisoners Under International Law (2nd ed, 1999) 289-90. See also Griffin v Spain, HRC Communication No 493/1992 (5 April 1995) UN Doc CCPR/C.57/WP/1 (1995).

[146] Rodley, above n 145, 289-92.

[147] The ‘Greek Case’ (1969) 12 Yearbook of the European Convention on Human Rights: Report of the European Commission of Human Rights on the ‘Greek Case’ 186. This case was commenced by Denmark, Norway, Sweden and the Netherlands against Greece after the 1967 military coup in Greece and the subsequent imprisonment and mistreatment of many people.

[148] Koskinen v Finland (1994) 18 EHRR CD 146, 158; see also above n 76.

[149] Tyrer v United Kingdom [1978] ECHR 2; (1979-80) 2 EHRR 1.

[150] The circumstances to be taken into account may, in some cases, include the sex, age and state of health of the victim: Ireland v United Kingdom (1979-80) 2 EHHR 1, 25.

[151] Dhoest v Belgium (1987) 55 D and R 5, 20-1; Koskinen v Finland (1994) 18 EHRR CD 146, 158.

[152] See, eg, Hilton v United Kingdom (1981) 3 EHRR 104. In that case, a prisoner was held in administrative segregation, which included 23 hours of solitary confinement per day. In addition he was subject to harsh treatment: he suffered impersonal treatment by staff, disciplinary provisions were applied in a very strict manner, and he received little attention because other parts of the prison were overcrowded and understaffed. In Treholt v Norway (1991) 71 D and R 168, a prisoner undergoing a long sentence for crimes of espionage was subjected to long periods of solitary confinement, sometimes including sensory deprivation. In both cases, no violation of art 3 was found.

[153] Livingstone and Owen, above n 77, 317.

[154] Report to the United Kingdom Government on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment from 29 July to 10 August 1990, quoted in Livingstone and Owen, above n 77, 150.

[155] This point was recently confirmed in Minogue v Williams (1999) 54 ALD 389; aff’d Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366. See also Cabal [2000] FCA 1892, [48]-[52] (doubting the value of art 10 of the ICCPR as an interpretative aid to courts).

[156] See, eg, Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 321, where Brennan J made this point by specific reference to the ICCPR. For an acute example of the influence of the European Convention on Human Rights on English law, see R v Governor of Brockhill Prison; Ex parte Evans (No 2) [1998] EWCA Civ 1042; [1998] 4 All ER 993, 1003-4; aff’d [2000] UKHL 48; [2000] 3 WLR 843, 866.

[157] See Peter Bailey, Human Rights: Australia in an International Context (1990) 113. A similar suggestion was made in Collins v South Australia (1999) 70 SASR 200, see above n 124.

[158] Charlesworth, above n 131.

[159] This point was affirmed by the Full Court of the Federal Court in Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, 363. Strictly speaking, however, the complete incorporation of an international human rights document in domestic law is not required to protect the rights embodied in that instrument. For example, the Human Rights Act 1998 (UK) renders provisions of the European Convention on Human Rights enforceable in English courts, even though the Convention has not been incorporated into English Law.

[160] This statement is not intended to suggest that the Commonwealth is not competent to pass legislation forcing compliance with a decision of the HRC in an area of State responsibility. See the discussion of Toonen v Australia (1994) 1(3) IHRR 97, above n 130.

[161] ATS 1980 No 23, Reservations and Declarations, art 10. The ICCPR and Australia’s reservations to the Convention are reproduced at <http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html> at 28 June 2001.

[162] On the legal arrangements governing prison discipline see Matthew Groves, ‘Proceedings for Prison Disciplinary Offences: The Conduct of Hearings and Principles of Review’ (1998) 24 Monash University Law Review 339.

[163] On this issue see the discussion of Binse v Williams [1998] 1 VR 381, below Part VIII.

[164] See, eg, Maybury v Osborne [1984] 1 NSWLR 579, 589; McEvoy v Lobban [1990] 2 Qd R 235; Re Walker [1993] 2 Qd R 325; Bromley v McGowan (Unreported, Supreme Court of South Australia, Perry J, 4 August 1994).

[165] ATS 1980 No 23, Reservations and Declarations, art 10. The ICCPR and Australia’s reservations to the Convention are reproduced at <http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html> at 28 June 2001.

[166] [2000] FCA 949; (2000) 177 ALR 306.

[167] Bail may be granted to persons held in custody pending the determination of extradition proceedings if the court is satisfied that ‘special circumstances’ exist: Extradition Act 1988 (Cth) s 21(6)(f)(iv). On the exercise of the discretion to grant bail by virtue of this provision see Holt v Hogan (No 1) [1993] FCA 463; (1993) 44 FCR 572, 570; Bertran v Minister for Justice [1999] FCA 1117; (1999) 165 ALR 155, 163; Cabal v United Mexican States (No 5) [2000] FCA 525 (Unreported, Goldberg J, 20 April 2000).

[168] Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949; (2000) 177 ALR 306, 315.

[169] Cabal v Secretary, Department of Justice [2000] FCA 1227 (Unreported, Drummond, North and Gyles JJ, 30 August 2000) [4]. An application for special leave to appeal to the High Court was refused on 28 November 2000.

[170] Cabal v United Mexican States [2000] FCA 1892 (Unreported, Gray J, 20 December 2000) [43]. In that case, Gray J strongly criticised the preliminary findings of HREOC which suggested that Cabal’s conditions of confinement contravened the ICCPR. His Honour noted, with some exasperation, that HREOC appeared unaware of Australia’s reservation to art 10: [48].

[171] Opened for signature 23 May 1969, 1155 UNTS 331, art 19(3) (entered into force 27 January 1980). The customary law concerning reservations also prevents states from making incompatible reservations: Case Concerning Reservations to the Geneva Convention (Advisory Opinion) [1951] ICJ Rep 15.

[172] Case Concerning Reservations to the Geneva Convention (Advisory Opinion) [1951] ICJ Rep 15, 29.

[173] See Human Rights Committee, General Comment 24(52): General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocol thereto, or in relation to declarations under article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6 (1994); reproduced at (1995) 2 IHRR 10. On the General Comment and reservations to the ICCPR generally see Catherine Redgwell, ‘Reservations to Treaties and Human Rights Committee General Comment No 24(52)’ (1997) 46 International and Comparative Law Quarterly 390.

[174] Many of the uncertainties are highlighted in the observations made by the United Kingdom and the United States about the Human Rights Committee’s General Comment 24(25), reproduced at (1996) 3(2) IHRR 261 and 265. See also Sarah Joseph, ‘A Rights Analysis of the Covenant on Civil and Political Rights’ (1999) 5 Journal of International Legal Studies 57, 86-91. Joseph concludes that the uncertainty surrounding the status of incompatible reservations ‘evinces a clear tension between the classical view of treaties creating bilateral and multilateral relations between States, which informs the customary law of reservations, and the modern view that human rights treaties essentially create bilateral relations between “State parties” and individuals’: 91.

[175] Joseph, above n 174, 91.

[176] Neilsen v Denmark, cited in Antonio Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law (1983) 59.

[177] But the HRC has also held that where the issue is unclear the respondent state bears the onus of proof in satisfying the HRC that the complainant has not exhausted all relevant domestic remedies: Ramirez v Uruguay, HRC Communication No 4/1977, cited in Christopher Caleo, ‘Implications of Australia’s Accession to the First Optional Protocol on Civil and Political Rights’ (1993) 4 Public Law Review 175, fn 26; see also Human Rights Committee, Selected decisions under the Optional Protocol, 2nd to 16th sessions, UN Doc CCPR/C/OP/1, 4 (1985).

[178] On the procedures for the admissibility of complaints to the HRC see Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the ICCPR (1991) 134-41.

[179] See above Part VI. This statement is not intended to suggest that a potential complainant to the HRC should not seek the assistance of HREOC. While HREOC may lack the power to enforce its recommendations against an unwilling respondent, enforcement in the strict sense may not always be necessary. A HREOC investigation, and any consequential recommendations, may be received favourably and may provide the foundation upon which a person’s complaint can be resolved by consent.

[180] Human Rights Committee, Rules of Procedure of the Human Rights Committee, UN Doc CCPR/C/3/Rev.5 (1997).

[181] The discussions of an application by Committee members (along with associated working documents prepared for the Committee) are not public documents. Article 5(3) of the Optional Protocol provides that ‘The Commission shall hold closed meetings when examining communications’. In relation to oral hearings, Evatt has noted that while the Optional Protocol does not expressly provide for the conduct of an oral hearing, it does not necessarily exclude one, see Evatt, above n 129, 40-1.

[182] Caleo, above n 177, 179. Caleo notes that decisions of the HRC are normally couched in terms suggesting that the decision must be enforced, and advising of the action required to ensure compliance with the decision. However, such language is of little effect.

[183] (1993) 5 IHRR 78. For an analysis of the decision see Jane Hearn and Kate Eastman. ‘Human Rights Issues for Australia at the United Nations’ (1998) 5 Australian Journal of Human Rights 194, 196-204.

[184] These arrangements have been accepted by Australian courts. The High Court has confirmed the constitutional validity of pt 8 of the Migration Act 1958 (Cth), which contains many draconian provisions that underpinned the conditions in which ‘A’ was held: Abebe v Commonwealth [1999] HCA 14; (1999) 162 ALR 1.

[185] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J). A similar view was adopted by the House of Lords in R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696.

[186] See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Deane and Dawson JJ); Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 306 (Mason CJ and McHugh J), 321 (Brennan J), 360 (Toohey J); ACT Television Pty Ltd v Commonwealth [No 2] [1992] HCA 45; (1992) 177 CLR 106, 140-1 (Mason CJ); Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 29 (Mason CJ), 48-50 (Brennan J), 74-5 (Deane and Toohey JJ); Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262, 274-6 (Kirby P); Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272, 297-8 (Mason CJ), 323-4 (Brennan J), 388 (Gaudron J); Sir Anthony Mason, above n 133, 28; Michael Kirby, ‘The New World Order and Human Rights’ [1991] MelbULawRw 15; (1991) 18 Melbourne University Law Review 209; Michael Kirby ‘The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms’ (1988) 62 Australian Law Journal 514, 525.

[187] [1992] HCA 23; (1992) 175 CLR 1, 42.

[188] [1995] HCA 20; (1995) 183 CLR 273.

[189] The treaty in question was the UN Convention on the Rights of the Child, opened for signature 20 November 1989, UN Doc A/RES/44/25 (1989) (entered into force 2 September 1990). Australia ratified the Convention in 1990. Article 3(1) of the Convention provides that: ‘In all actions concerning children ... the best interests of the child shall be a primary consideration’. Despite the very serious criminal convictions (multiple counts of importing and supplying heroin) that led to the deportation order which was the subject of the challenge, there was little doubt that it was appropriate for art 3(1) to have an overwhelming influence on the decision-making. In such a case, the difference between a legitimate

expectation of an interest that could have an overpowering influence and a substantive legal right is blurred. The reasoning of the majority in Teoh on the doctrine of legitimate expectation was criticised by some. See, eg, Michael Taggart, ‘Legitimate Expectation and Treaties in the High Court of Australia’ (1996) 112 Law Quarterly Review 51, 53; Elizabeth Handsley, ‘Legal Fictions and Confusion as Strategies for Protecting Human Rights: A Dissenting View on Teoh’s Case’ (1997) 2 Newcastle Law Review 56. The dissenting judgment of McHugh J relied on a more conventional view of legitimate expectation: Teoh [1995] HCA 20; (1995) 183 CLR 273, 312-14.

[190] There have been two joint Ministerial statements by the Commonwealth Attorney-General and Minister for Foreign Affairs, issued on 10 May 1995 and 25 February 1997, available at <http://www.dfat.gov.au/media/releases/foreign/1995m44.html> and <http://law.gov.au/aghome/agnews/1997newsag/attachjs. html> respectively, at 21 June 2001. Each statement explained that the signing of treaties by the Executive is not, and never has been, intended to raise an expectation that government decision-makers would act in accordance with a treaty in the absence of domestic legislation that gave effect to that treaty. The statements purported to apply to both existing treaties and future treaties that Australia might sign. The effectiveness of the statements was doubted in Department of Immigration and Ethnic Affairs v Ram (1996) 41 ALD 517, 522-3 (Hill J).

[191] Cf Administrative Decisions (Effect of International Instruments) Act 1995 (SA), which purports to reverse the effect of the Teoh decision. The Administrative Decisions (Effect of International Instruments) Bill 1998 (Cth) lapsed upon the calling of the 1999 federal election. A third Bill was introduced into the House of Representatives on 3 October 1999. The Federal Government has also introduced administrative changes to increase parliamentary involvement in the treaty process: H Coonan, ‘Signing International Treaties’ [1998] AIAdminLawF 2; (1998) 16 Australian Institute of Administrative Law Forum 15.

[192] Margaret Allars, ‘One Small Step for Legal Doctrine, One Giant Leap for Integrity in Government’ [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204. A similar view on the probable effect of the case is adopted in Handsley, above n 189. Handsley mounts a cogent attack on the reasoning adopted by the High Court, but endorses the result reached in the case.

[193] [1999] SASC 257; (1999) 74 SASR 200.

[194] There was some doubt about the nature of the relief sought by Collins. Justice Millhouse concluded that parts of the summons effectively sought a mandatory injunction against the Crown to prevent the further use of double bunking and other practices. His Honour concluded that the issue of such relief would breach the prohibition on mandatory injunctions against the Crown in s 7 of the Crown Proceedings Act 1992 (SA).

[195] Collins [1999] SASC 257; (1999) 74 SASR 200, 214-15. Justice Millhouse drew support for this conclusion from Re Citizen Limbo (1989) 92 ALR 81, 82-3, where Brennan J cautioned strongly against any suggestion that the courts should usurp the functions of the political arm of government in order to give effect to the enforcement of human rights.

[196] There is a significant body of administrative law suggesting that decisions of a political character, or those which include significant policy issues, are not amenable to review in the same manner as other decisions. For example, the rules of procedural fairness may operate in a modified manner for such decisions: Aronson and Dyer, above n 122, 344-8.

[197] Michael Taggart, ‘Legitimate Expectations and Treaties in the High Court of Australia’ (1996) 112 Law Quarterly Review 50, 52. But Taggart does not explain what might be ‘appropriate’ circumstances. For an illustration of how this view might operate see Premelal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117, in which Einfeld J held that the ground of review of unreasonableness could extend to the recognition of a fundamental human right by a decision-maker. See also Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 46 ALD 216, 232 (Burchett J).

[198] The passage of the Human Rights Act 1998 (UK) will render the future development of English law less instructive. That Act requires public authorities, including courts, to act in accordance with the European Convention on Human Rights, and a failure to do so gives rise to a new cause of action. Sir William Wade has argued that the inclusion of the courts within the scope of the Act will inevitably lead to the development of new forms of action between private citizens: Sir William Wade, ‘Human Rights and the Judiciary’ [1998] European Human Rights Law Review 520.

[199] See, eg, Golder v UK (1975) 1 EHRR 524, in which a complaint alleging that gaolers had frustrated a prisoner’s efforts to commence a defamation action against an officer was declared admissible. See also Silver v UK [1983] ECHR 5; (1983) 5 EHRR 347, in which several complaints from prisoners concerning alleged interference with their correspondence led to a friendly settlement, which included publication of the relevant prison rules, with copies being placed in prison libraries.

[200] Martin Loughlin, ‘The Underside of the Law: Judicial Review and the Prison Disciplinary System’ (1993) 46(2) Current Legal Problems 52; Martin Loughlin and Peter Quinn, ‘Prisons, Rules and Courts: A Study in Administrative Law’ (1993) 56 Modern Law Review 497.

[201] [1993] EWCA Civ 12; [1993] 4 All ER 539. It should be noted that this decision was delivered shortly after the publication of Loughlin’s most influential writings on this area.

[202] The power is located in s 47(1) of the Prison Act 1952 (Eng).

[203] This principle was asserted strongly by the House of Lords in Raymond v Honey [1983] 1 AC 1. In many ways Raymond v Honey is the forerunner of Leech, in part because the decision emphasised prisoners’ right of access to the courts, but also because it was one of the earliest decisions in which the House of Lords openly drew support from European decisions. The principle (of a prisoner’s right of access) was recently affirmed in R v Secretary of State for the Home Dept; Ex parte Simms [1999] UKHL 33; [1999] 3 All ER 400, where it was held that rules restricting prisoners’ access to journalists and the conditions of visits could not be made in the absence of a clear power to do so. It is notable that the Court of Appeal, while reaching a different conclusion, also made detailed reference to European law: [1997] EWCA Civ 2913; [1998] 2 All ER 491.

[204] Most notably Campbell v UK [1992] ECHR 41; (1992) 15 EHRR 137. In that case, the European Court of Human Rights upheld a complaint by a prisoner alleging that the routine examination of his correspondence with lawyers violated art 8 of the European Convention on Human Rights, which provides that: ‘There shall be no interference by a public authority with the exercise of [the right of correspondence] except such as [is] in accordance with the law and is necessary in a democratic society in the interests of ... public safety ... the prevention of disorder or crime [or] the protection of the rights and freedoms of others’.

[205] Leech [1993] 4 A11 ER 539, 555. Much of the language of the Court of Appeal, which referred to the requirement of an ‘objective’ or ‘demonstrable need’ to read the power in the manner suggested by counsel for the prison governor, reflects the European principle of proportionality: 551. For a more recent decision, see R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 WLR 1622. In that case, parts of a Home Office policy manual which allowed guards to search prisoners’ cells in their absence were declared unlawful, because they allowed material that might be privileged to be searched while a prisoner was absent. The Law Lords were strongly influenced by European law, particularly the doctrine of proportionality: 1635.

[206] [1998] 1 VR 381.

[207] (1995) 8 VAR 508. Justice Byrne did not consider the possible application of international instruments.

[208] GA Res 3452 (XXX), GAOR (Supp No 34), Annex Item 30, 91, UN Doc A/10034 (1976).

[209] New regulations have since been issued in Victoria, but the provisions concerning the use of restraints are effectively unchanged: see Corrections Regulations 1998 (Vic) regs 14-16.

[210] Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1986, 634 (Mr R C Fordham, Minister for Industry, Technology and Resources, on behalf of the Minister for Police and Emergency Services).

[211] Binse v Williams [1998] 1 VR 381, 391-4. A similar conclusion was reached in Re Mathieson and Department of Employment, Education and Training (1990) 20 ALD 253 and in Knight and Secretary to the Department of Employment, Education and Training (Unreported, No V92/326 AAT No 8228, 7 September 1992). Both decisions concerned applications from prisoners seeking review of decisions by the Commonwealth Department of Employment, Education and Training, denying them student assistance allowances to pay for study expenses. In each case, the Administrative Appeals Tribunal held that the various provisions of the Austudy Regulations 1990 (Cth), which preclude Austudy payments to any person held in custody, were mandatory and absolute. In view of the absence of discretion, international instruments concerning the treatment of prisoners were held to be not relevant to the interpretation of the regulations.

[212] Correctional Centres Act 1952 (NSW) s 6(3); Remand Centres Act 1976 (ACT) ss 7-9; Prisons (Correctional Centres) Act 1980 (NT) s 60; Prisons Act 1981 (WA) s 7(1); Correctional Services Act 1982 (SA) s 24(2); Corrective Services Act 1988 (Qld) ss 13(1), 14; Corrections Act 1997 (Tas) s 6.

[213] This explanation of the decision is similar to that adopted in the leading American decision of Turner v Safley, [1987] USSC 100; 482 US 78, 89 (1987), in which the Supreme Court held that a prison regulation which infringed a prisoner’s rights in a manner that would normally be unconstitutional could nonetheless be valid if it was reasonably related to legitimate penological interests.

[214] It is also worth noting that the Court could have gained assistance from Australian cases. Justice Charles cited Coco v R [1994] HCA 15; (1994) 179 CLR 427, 436-7, where a majority of the High Court held that the presence of general words in a statutory provision is normally insufficient to authorise interference with the basic immunities upon which freedoms are based. Yet Charles JA apparently failed to consider the effect or relevance of the High Court’s reasoning on ‘implied rights’: Binse v Williams [1998] 1 VR 381, 394. With respect, the failure of the Court of Appeal to articulate a coherent basis for failing or refusing to consider an apparently relevant High Court case presents the least satisfactory approach possible.

[215] Section 21(6)(iv) of the Extradition Act 1988 (Cth) provides that bail may be granted ‘if there are special circumstances justifying such a course’.

[216] Cabal v United Mexican States [2000] FCA 1892 (Unreported, Gray J, 20 December 2000) [52].

[217] (1993) 112 FLR 109.

[218] Australian Capital Territory prisoners are transferred under the Removal of Prisoners (Australian Capital Territory) Act 1968 (Cth). Aspects of the transfer process are explained in Subritzky v Circosta (1997) l27 ACTR 1.

[219] Rodgers was extremely attractive. He had endured sexual attention from men during his life as a homeless youth, but had also committed many acts of violence and robbery against gay men. Expert evidence described him as a ‘classic case of the victim becoming the perpetrator’. It is worth noting that Miles CJ did not exhibit the surprise that many judges express at the suggestion that an attractive young prisoner would be the victim of sexual assault in prison. A recent study confirmed the point, apparently well known to all persons concerned with the administration of criminal justice but not to judicial officers and politicians, that sexual violence against young or vulnerable prisoners is widespread in New South Wales prisons: David Heilpurn, Without Fear of Favour: Sexual Assault of Young Prisoners (1998).

[220] R v Hollingshed and Rodgers (1993) 112 FLR 109, 116.

[221] A similar conclusion was reached in R v Smith (Unreported, Supreme Court of South Australia, Bleby J, 16 April 1998). In that case, Bleby J flatly rejected an appeal against a sentence that was based, in part, on a submission that the conditions under which the prisoner was to be confined did not conform to the UNSMR. His Honour held that, as the treatment of prisoners was regulated by the Correctional Services Act 1982 (SA), and no evidence was led suggesting that the Act had been contravened, the content of any international instruments dealing with the treatment of prisoners was not relevant. Such reasoning accords with the common law rule that intolerable conditions of detention cannot render imprisonment unlawful. The legality of detention is determined by reference to the validity of the order under which a prisoner is sentenced: R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58.