Prison Law

 

Prison Law

 

Prison Law: Evaluate the success of Australian prison law

According to the research of the Australian Bureau of Statics, the number of adult prisoners has increased by ten percent over the past twelve months, to reach a ten year high of 33,791. The number of female prisoners has been increasing in Australia for the last few decades. The number of female prisoners rose by 78 percent between 1995 and 2002.  From 2002 to 2012, the number of female prisoners increased by 48 percent, whereas the number of male prisoners only increased by 29 percent. However, women who have been sexually and physically abused often face humiliation and discomfort when strip searches are conducted in prison. In addition to this, mental health services are inadequate in most of the Australian prisons for women prisoners and cannot serve the high percentage of female prisoners who have a mental illness. This essay will review the prison system in Australia, whether it supports females’ fundamental rights in prison, and also compare Australia’s prison system with the female prison system in Norway.

 


 

Introduction

Aristotle said that “man is by nature a social animal; an individual who is unsocial naturally and not accidentally is either beneath our notice or more than human. Society is something that precedes the individual. Anyone who either cannot lead the common life or is so self-sufficient as not to need to, and therefore does not partake of society, is either a beast or a god. ”

Prison is not a place for isolating or punishing people; it can be another world or society for someone to rehabilitate and to prepare for a brighter life. It is no different from the place where we are living; there are rules that individuals must comply with to keep their society functioning. However, the condition and welfare for prisoners has always been a controversial subject in modern society.

According to the research of the Australian Bureau of Statics, the number of adult prisoners has increased by ten percent over the past twelve months, to reach a ten year high of 33,791.[1]  This essay will review the prison system in Australia, whether it supports females’ fundamental rights in prison, and also compares Australia’s prison system with the female prison system in Norway.

 

Australia Prison Law on Women

The majority of female offenders tended to receive short sentences compared to the male offenders for minor or repeated offences, and rarely went to prison in the 19th century. In 1804, Governor King created the female penitentiary in Sydney's Parramatta.[2]  Since then, the number of female prisoners has been steadily increasing in Australia. The number of female prisoners rose by 78 percent between 1995 and 2002.[3]  From 2002 to 2012, the number of female prisoners increased by 48 percent, whereas the number of male prisoners only increased by 29 percent.[4]

There are a number of factors that contribute to the increase in the rate of female imprisonment.[5]  For instance, female prisoners were convicted of various offences, from domestic offences to drug dealing offences, in 2010.[6]  A survey of women in Queensland prisons determined that 95 percent had experienced sexual and physical abuse by family members, which is a contributing factor to their drug use.[7]   Also, emotional and mental abuse are often reported among women prisoners. Strategies have been made in past years to help have a good environment for female prisoners in Australia.

After various reviews conducted by a committee appointed by the government, a new guideline was adopted to help improve the safety of female prisoners. In particular, in section 3.14 of the Standard Guideline for Corrections in Australia, programmes and services provided to prisoners, especially women, indigenous prisoners, and prisoners from culturally and linguistically diverse backgrounds should be established, following close consultation with the appropriate community groups and experts.[8] It is also articulated that female prisoners are treated with dignity and respect, to bring out self-responsibility in them.[9]  The guideline suggested that a rehabilitative and culturally sensitive environment be created to recognize women’s needs.

 

Protection from Strip Search for Women

Many cases have been reported of women being sexually and physically abused in corrective centers, especially Brisbane Women’s Correctional Centre. Sexual assault is against the rights of a person; security as stipulated by international human rights law. Women who have been sexually and physically abused face humiliation and discomfort when strip searches are conducted. A strip search is done several times throughout the period of incarceration: when inmates are first imprisoned, after every visit, when returning from either the court or hospital, and also when they are released.  The act of strip searching humiliates women's dignity, make women powerless, and are against human rights, which is also a violation of the UN Human Right.

In Queensland, strip searching is regulated in section 624 (1) in the Police Power and Responsibility Act (QLD).[10]  Section 624 (2) states that a search must ordinarily be conducted by an officer of the same sex as the person searched. The officer must explain what will happen and why it is necessary, and also ask for co-operation: s 630 (1) (a). Moreover, the prisoners must be given the opportunity to keep some clothes on during each stage of the search: s 630 (1) (b); reasonable privacy must be afforded: s 630 (2); and the search must be conducted as quickly as reasonably practicable: s 630 (3). In Western Australia, the strip search is defined in sections 70 - 72 of The Criminal Investigation Act (WA).[11]

 

Female Prisoners’ Human Rights in Australia

The legal term “human rights” has been recently interpreted as the basic rights and freedoms to which all humans are entitled to have: the right to life and liberty, freedom of thought and expression, and equality before the law.[12]  The international Human Rights Law states that prisoners have the right to receive the highest standard of physical and mental health. It further asserts that prisoners are entitled to health services equal to those in the community.[13]

As for Australian laws on prisoners, human rights are implied in the Corrective Services Act 2000.[14]  According to this act, the function of correctional services is as follows: to ensure community safety and prevent crime in a humane manner, and provide rehabilitation services for offenders. It also recognizes the human rights of those convicted and, therefore, they should not be denied their rights. The act also asserts that there is a need to treat these prisoners with dignity and respect. It further states that special needs are to be taken in regards to the prisoner’s age, gender, and/or a disability that the prisoner has.[15]

A female prisoner is denied her rights to freedom and liberty; she should not also be denied fundamental human rights. In particular, a report by the Anti-Discrimination Commission in Queensland shows that indigenous female prisoners are at risk of discrimination in prison.[16]  Indigenous women have also been further affected by this since the remoteness of these corrective centers is much farther away from their countries and communities. This does not go in accordance to the human rights law of protection that requires ongoing contact with members of one’s family. Article 27 of the International Covenant on Civil and Political Rights,[17] which Australia agreed to abide by, states that indigenous women in prison have the right to enjoy their culture with members of their community; therefore, by being denied this opportunity, their rights are being denied.

In Australia, women prisoners are well treated under the UN Human Right Rule; however, many female prisoners, especially aboriginal women prisoners, are exposed to a high risk of discrimination in prison. The Australian government and local corrective centers should review the current status of discrimination in prison and regulate special provisions for aboriginal women prisoners.

 

Health Protection of the Female Prisoner in Australia

Low level of health care in prison is significant issue for both men and women, in particular, the women prisoners are vulnerable for a number of reasons: Incarcerated women prisoners need special medical care around pregnancy and child birth yet very few needs are met in prison.[18]

Experiences such as physically abused, sexually assaulted and other  abuses that can cause emotional breakdown, contributes to women's mental illness. According to the National Mental Health Plan 2003–2008, prisoners with mental illness require secure inpatient hospital treatment, and prisoners with mental illness require specialist mental health assessment and/or treatment in prison.[19]  However, mental health services are inadequate in most of the Australian prisons that serve the high percentage of women who have a mental illness. Still on the provision of health services, there are few gender specific programmes on health care in Australian prisons.

Female prisoners who have mental issues but are not diagnosed with psychiatric illnesses do not get enough treatment or even the rehabilitation services they need. In particular, women with children find it difficult to balance their relationship with their children, and this could lead to emotion breakdown and this could lead to the women and children suffering from emotional breakdowns, because most of these women’s prisons in Australia are located in remote areas, making it difficult for the women to be in contact with their families.[20]

Also, as substance abuse or drug abuse is one of the significant causes of women being convicted in Australia, various rehabilitation programmes have been initiated in the prisons to help deal with this problem. However, limited programmes are provided and are not gender specific. The programmes should be gender specific to combat this problem and help women to change, so as to fit into society. Women, who are in prison for the short term, feel discriminated against since they are unable to access these programmes.

Australian law protects female detainees during their pregnancy period. Children are considered a valuable part of society, irrespective of their mothers’ positions in prison. Therefore, among the protective measures that the Australian prison system has taken into account is a measure protecting pregnant female prisoners and ensuring they receive quality health care services. The Australian prison system, through the National Commission on Correctional Health Care (NCCHC), takes the matter of women’s pregnancy in prison seriously.  The health care offered to pregnant inmates helps to protect the risk of child death within the prison or even death of the parent inmate.

 

Mother Baby Unit (MBU)

Another special consideration that Australian prison law has allocated to help protect women in prison is through the provision of a mother and baby unit (MBU). The MBU has enabled inmates with children to be in a position to have their children with them whilst in prison.  Sections 29, 30, 31, and 32 in the Corrective Service Act (QLD) regulate the application for the accommodation of a child with a female prisoner; deciding the application; removing the child from the corrective services facility and search of accommodated child.[21]  The law allows mothers to have their babies in prison and express the same affection for them and create bonds with their children, as they could were they not imprisoned. This prison system is different from the prison system in Norway. Norway’s prison system does not permit children to stay with their mothers in prison, unlike Australia.

The mother and baby unit has helped many inmates to maintain a link with their children while they are still growing. The Australian prison system has helped women with small children not to lose custody of them, despite being in prison. Thus, the system has protected the rights of women to keep their babies. This law enables women in prison from experiencing stress and post-natal depression in prison due to lack of being with their children.

 

Education and Training for Female Prisoners in Australia

Recidivism is the behavior of a person repeating an offensive act after they have either experience negative consequence of that behavior. Unfortunately, recidivism rate is high in Australia:[22] Howson v R;[23] Kelly v Ashby;[24] Holder v Brennan (No 2);[25] McColl v  State of Western Australia.[26]

The Australian prison department has introduced education and training programmes for women in its correctional facilities to assist the women in self-improvement by gaining knowledge and skills, because numerous international and Australian studies of correctional education concluded that studying in prison reduces recidivism.[27]

In Queensland, 84 per cent of women prisoners are charged for minor offences, average sentence is only 2.1 months yet the recidivism rate is 57.47 per cent. Once women prisoners are released, there is no assistance to meet their immediate needs for housing, food, employment. It is no wonder that the recidivism rate is high. [28]

A "Sister Inside" is a well known organization in Queensland to provide the settlement services for women prisoners yet post-release services itself cannot be a fundamental solution to reduce the re-offending rate.[29] Therefore, the corrective centers in each State developed its own customized education and training programs to reduce recidivism and improve individual and community outcomes.

For example, according to the Report of the Investigation into Complaints from Women Prisoners at Darwin Correctional Centre 2008, in Northern Territory, NTCS developed educational courses specific to the needs of women prisoners, including conducting an examination of the feasibility and delivery options of each of the following courses suggested by J block prisoners. Programs such as computer literacy, cooking, nursery training, interpreting, counseling services, first aid, etc., have been made available to women prisoners to improve their vital skills in life. [30]

In, Western Australia, the WA Department of Corrective Services (DCS) has provided a wide range of courses and classes in Western Australia prisons, including women’s prisons. Other States have also developed and operated their own learning programmes for both men and women prisoners.

The Australian prison system offers their female inmates full-time educational programmes that are classified based on the progress of the participants. The value of learning among the women inmates has attributed to reintegration success among the inmates, making them productive members of the community. This should continue to be encouraged, to assist more women to change into being productive members of the community.

 

Women Prisoners in Norway v Women Prisoners in Australia

The number of women prisoners in Norway has increased over the years, but criminal activity is still low when compared to Australia.[31]  The population of women prisoners in Norway is 5.90 percent, whereas the Australian women prisoner population is 7.20 percent.[32]

Bredtveit Prison is the largest prison for women in Norway. It was built in 1919 for young men and was converted into the women’s prison after World War II in 1957. The scale of the prison is not the reason why it has become popular, but rather it is because it has implemented and complied with as many provisions of the United Nation's rules to treat women prisoners fairly as possible.[33]

There are many differences between Norway’s prison system and Australia’s prison system, in particular in the matter of women. The capacity of Bredtveit is two hundred women prisoners; there are no uniforms and the women are allowed personal belongings, such as clothes, jewelry, and CDs, which is unlikely to happen in Australia.[34]

As mentioned above, Norway’s prison system does not permit mother of young babies to be incarcerated unlike Australia. Alternatively, according to Norway’s Execution of Sentences Act, women who are pregnant or have young children may be able to serve sentences outside prison. This provision states that people can serve all or part of their sentences in institutions other than prisons when necessary, to improve their ability to function socially and lawfully, or where other special circumstances exist.[35] It seems that the women prisoners in Norway have been better treated and respected as human beings under the United Nation's rules than Australian women prisoners.

 

Conclusion

It is difficult to say whether the Australian prison system is successful or not at this stage, because it is still being updated and modified by the government, communities, and prison activists. The position of women inmates has been critically reviewed by the Australian prison department to ensure that they face no hardships that could lead to increased suicide or other related issues, in particular during pregnancy. Pregnant prisoners should be allowed to stay outside of the prison while pregnant, just as is done in Norway. Australia’s prison law system should learn and adopt an effective prison law system such as that in Norway, especially regarding the treatment of women prisoners. Effective prison laws must be considered and enacted by the Australian government to help ensure that women prisoners are not discriminated against or subjected to unbearable conditions within the prisons.

 


[1]  Australian Bureau of Statistics, Prisoners in Australia 2015 (2015) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0>.

[2]  Sean O'Toole, The History of Australian Corrections (UNSW Press, 2006 ) 112.

[3] White, R. D and Habibis, Daphne,  Crime and society / Rob White & Daphne Habibis (South Melbourne Oxford University Press, 2005) 224.

[4] Australian Bureau of Statistics, Prisoners in Australia 2013  (2013) < http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2013~Main%20Features~Contents~1>.

[5] David Holmes and et all, Australian Sociology (Pearson Australia, 2014) 223.

[6] Australian Bureau of Statistics, Prisoners in Australia 2010  (2010) < http://www.abs.gov.au/ausstats/abs@.nsf/Products/4936A45797AF0238CA2577F3000F095C?opendocument>.

[7] Diane C. Hatton, Women Prisoners and Health Justice: Perspectives, Issues and Advocacy for an International Hidden Population (Radcliffe Publishing, 2009) 45-48.

[8] Western Australia. Department of Justice, Revised standard guidelines for corrections in Australia (2004) <http://www.correctionalservices.nt.gov.au/documents/useful_links/aust-stand_2012.pdf>.

[9] Dr Lorana Bartels and Antonette Gaffney, Good practice in women’s prisons: A literature review (Australian Institute of Criminology, 2011)  < http://www.aic.gov.au/media_library/publications/tbp/tbp041/tbp041.pdf> 12-17.

[10] Police Power and Responsibility Act (QLD) s 624, s 630.

[11] Criminal Investigation Act (WA) s 70-72.

[12] Diane C. Hatton, Women Prisoners and Health Justice: Perspectives, Issues and Advocacy for an International Hidden Population (Radcliffe Publishing, 2009) 3-9.

[13] United Nations. Office of the High Commissioner for Human Rights, Human Rights and Prisons: A Manual on Human Rights Training for Prison Officials, Volume 1  (United Nations Publications, 2005) 65-66.

[14]  Corrective Services Act 2000 (QLD).

[15]  Susan Easton , Prisoners' Rights: Principles and Practice (Taylor & Francis, 2011) 173-174.

[16]  Diane C. Hatton, Women Prisoners and Health Justice: Perspectives, Issues and Advocacy for an International Hidden Population (Radcliffe Publishing, 2009) 49-51.

[17]  UN General Assembly, International Covenant on Civil and Political Rights (16 December 1966) < https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf>.

[18]  Elaine J. Leeder, Inside and Out: Women, Prison, and Therapy (Routledge, 2014) 61.

[19]  Australian Health Ministers, National Mental Health Plan 2003–2008 (July 2003) <http://amhocn.org/static/files/assets/6eaa072b/National_Mental_Health_Plan_03-08.pdf> 34.

[20]  Emma Stanley and Stuart Byrne, MOTHERS IN PRISON: COPING WITH SEPARATION FROM CHILDREN (University of South Australia, 2000) <http://www.aic.gov.au/media_library/conferences/womencorrections/stanbyrn.pdf>.

[21] Corrective Service Act (QLD) s 29 - s 32.

[22] Stacy Ramdhan, Lisa Bissessar, Recidivism (GRIN Verlag, 2013) 2.

[23] (2007) 210 FLR 288. Offender was released from Bali but caught custom officer at airport due to suspect behavior.  The offender was taken to secure room for strip search but nothing under offender's pants. Eventually, package of cocaine subsequently found on floor of secure room.

[24] [2015] ACTSC 346. The offender is at high risk of re-offending, related to substance abuse, financial pressures, poor familial relationships, antisocial attitudes and peer associations. The Offence committed while offender was on parole.

[25] [2014] ACTSC 383. The offender had a criminal history and showed medium to high risk of re-offending.

[26] [2014] WASC 300. The offender committed the offence while on bail and in breach of court orders which was serious nature of offence related to drugs and showed high risk of re-offending.

[27] Dr Margaret Giles  and Ms Jacqui Whale, PRISONER EDUCATION and TRAINING, and OTHER CHARACTERISTICS, Western Australia, July 2005 to June 2010 (April 2013) <https://www.ecu.edu.au/__data/assets/pdf_file/0007/460933/Giles-and-Whale-2013-Prisoner-education-Phase-1-report.pdf>.

[28] David Brown and Meredith Wilkie, Prisoners as Citizens: Human Rights in Australian Prisons (Federation Press, 2002) 41-43.

[29]  Bree Carltonand Marie Segrave, Women Exiting Prison: Critical Essays on Gender, Post-Release Support and Survival (Routledge, 2013) 163- 174.

[30]  Darwin Correctional Centre , women in prison Northern Territory: Report of the Investigation into complaints from women prisoners at Darwin Correctional Centre (April 2008) <http://www.sistersinside.com.au/media/NTWomen%20In%20Prison%20PDF.pdf>

[31] Graham Davies, Psychology, Law, and Criminal Justice: International Developments in Research and Practice (Walter de Gruyter, 1996) 573- 574.

[32]  ChartsBin statistics collector team 2010, World Female Prisoners (percentage within the Prison Population) (2010)  <http://chartsbin.com/view/t5b>.

[33] DUI HUA, Adhering to the Bangkok Rules: Norway’s Largest Women’s Prison (24 May 2015) <http://duihua.org/wp/?p=5733>.

[34] Ibid.

[35] Ibid.

 

 

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