Prisoners - Legal Information Access Centre - NSW Government

prison issues. Prison administrators and Ministers of
Corrections departments are often judged as successful
if prisons are kept off the front page of the tabloids.
Among the key conditions helping to keep prisons and
prisoners out of the media are increased emphasis and
resources devoted to security, the prevention of escapes
and a tight policy of internal administrative control of
media access to prisoners and prisons.
The ‘principle of lesser eligibility’, that prison conditions
must always be kept below those of the honest poor was
first expressed by Jeremy Bentham in 1780. 58 This has
an echo in media accounts of prisoners enjoying ‘motel
conditions’ and particular notorious prisoners having
access to electric hot water jugs and televisions.
Securing greater media access by and to prisoners for
all forms of media, especially the ‘new media’, enables
prisoners to speak for themselves and most importantly
to ‘personalise and humanise issues’. 59 Central to this are
the media produced by prisoners and prison movement
organisations such as Justice Action, which in 2005
initiated a court action seeking to require the NSW
Department of Corrective Services to distribute an
election issue of their newspaper Framed on the grounds
that its prohibition was an illegitimate infringement of
the implied constitutional right of freedom of political
communication and participation. 60
prisOners As legAl suBjecTs
Such legal actions seeking to utilise the forums of the law
and the judicial process, highlight the limited protections
for prisoners available in law in the Australian context,
in the absence of any express constitutional or statutory
rights of the sort enacted in comparable jurisdictions in
constitutional (US, Canada, South Africa) or statutory
form (UK, NZ). The clearest expression of what has
been called the ‘hands off’ doctrine is the judgment of
Dixon CJ in Flynn’s 61 case in 1949 that the courts should
be wary of recognising prisoners as legal subjects because
to do so would shift management of the prison from
prison administrators to the courts, in the process
undermining prison authorities and opening the
floodgates. This has been described in an article by
Richard Edney, as having the ‘disturbing implication’
that an important area of social concern is ‘beyond the
jurisdiction of the law’. 62
The ‘prisoners as outlaws’ approach was undermined
by the findings of inquiries such as Nagle in NSW
(1978) and Jenkinson in Victoria (1973) after riots and
disturbances at Bathurst and Pentridge and many other
prisons in Australia, the USA, UK and Europe, giving
rise to a qualified legal ‘retrieval’ of prisoners rights
in the 1960s and 1970s, a judicial move to conceive
of prisoners as legal subjects given their ‘unique and
vulnerable position.’ 63 Edney argues that this judicial
scrutiny was always limited so that ‘decisions dealing
with the transfer of prisoners between and within a
prison, segregation of prisoners, and other aspects of
prison administration concerning matters such as the
provision of condoms and syringes and the general
concern of the good order and security of the prison’
remained largely beyond the reach of judicial review and
that a new form of ‘hands off by stealth’ was achieved
by the courts giving deference to the judgment and
expertise of prison administrators.
Even where applications for judicial review are
successful victories can be shortlived, as they are often
countermanded by prison administrators or legislators.
In Middleton, 64 the NSW Supreme Court in 2004
held that the decision of the NSW Corrective Services’
Commissioner to refuse a prisoner access to a laptop
computer in order to complete a University degree
course was an ‘abrogation of the proper exercise of
the discretion’ and should be re-determined. The
Commissioner’s ‘re-determination’ was to again refuse
access, followed by a blanket ban on access to laptop
computers by all prisoners regardless of security
classification.
In an article examining judicial decisions on the
interpretation of correctional legislation, the author
concludes that they have not: ‘yielded principles by
which the decisions of prison officials may be subjected
to rigorous scrutiny by the courts in applications for
judicial review. Legislative attempts to grant rights
to prisoners have also provided few clear benefits to
prisoners’. 65 The limited jurisdiction of HREOC
‘prevents that body from operating as an effective
grievance mechanism for prisoners’ and the effects
of international instruments such as the ICCPR have
been slight, and judicial attitudes present a ‘significant
obstacle’, for Australian courts have proved ‘extremely
reluctant to draw on international instruments in the
interpretation of correctional legislation. 66
58. The Principles of Morals and Legislation, J Bentham – text available online from http://oll.libertyfund.org search ‘Bentham’.
59. C Lumby, ‘Televising the Invisible: Prisoners, Prison Reform and the Media’ in D Brown and M Wilkie (eds) Prisoners as Citizens (2002) 105.
60. See AHRC, No 32 Report of an inquiry into a complaint made on behalf of federal prisoners detained in NSW correctional centres that their
human rights have been breached by the decision to ban distribution of the magazine ‘Framed’ (2006). See http://www.humanrights.gov.au/
legal/HREOCA_reports/index.html
61. Flynn v The King (1949) 79 CLR 1; available at www.austlii.edu.au/au/cases/cth/HCA/1949/38.html
62. R Edney, (2001) ‘Judicial deference to the expertise of correctional administrators: The implications for prisoners’ rights’ Australian Journal of
Human Rights 5, 1-35 at 8; available at http://www.austlii.edu.au/au/journals/AJHR/2001/5.html
63. As above, at p 10.
64. Middleton v Commissioner of Corrective Services of NSW [2004] NSWSC 136; see www.austlii.edu.au/au/cases/nsw/NSWSC/2003/136.html
65. ‘International Law and Australian Prisoners’ by Matthew Groves (2001) UNSWLJ 11 at 20; available at http://www.austlii.edu.au/au/journals/
UNSWLJ/2001/11.html
66. As above at p 21.
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