Prisoners - Legal Information Access Centre - NSW Government

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Prisoners as Citizens Feudal conceptions of prisoners as ‘civilly dead’, far from being consigned to history have undergone somewhat of a revival, evident in Australia in the Dugan decision as recently as 1979 where the High Court held that the doctrine still applied to Australian capital felons, meaning in Dugan’s case he could not sue for defamation. 80 Echoes of civil death can be found in a host of recent exclusionary practices: > in the 2004 and 2006 federal disenfranchising legislation, discussed below and in the Roach case – see box); > in State provisions restricting prisoner access to victims compensation for injuries suffered in prison; > in the Civil Liability Act 2002 (NSW) and subsequent amendments which ‘substantially removes any effective redress for negligence or abuse by prison authorities and other prisoners’; 81 > in long standing exclusions in most jurisdictions from jury service; > in post release disabilities suffered by those with criminal records such as gaining insurance; > and in attempts to deny male prisoners access to medical services in order to store sperm when undergoing potentially debilitating surgery; to mention but some. Positions range between those who argue that prisoners should lose all rights including citizenship by virtue of being convicted and imprisoned – that they have forfeited their right to exercise citizenship – through to those who argue that prisoners are simply citizens behind bars and should lose none of their rights of citizenship except those necessarily involved in imprisonment such as the freedom of movement and assembly. Perhaps prisoners can be seen as ‘conditional’ or ‘partial citizens’, neither enjoying full citizenship, nor entirely outside it. For example, Vaughan argues that ‘for punishment to be meaningful, it must entail that some rights and privileges are forgone; the process of inclusion cannot be total.’ 82 In practice, the force operating in and through the prison, its architecture, rules and regulations, routines, enclosures, separations, effects on the body, subservience to authority, in short the ‘pains of imprisonment’, mean that prisoners’ citizenship is indeed somewhat less than full. As a political aim, partial or conditional citizenship should be rendered fuller and more complete. The focus should be on the necessary conditions under which prisoners might participate in a democratic citizenship. To enable this: prisoners must be secured under regimes which are healthy, not conducive to or tolerant of violence; conditions which promote contact with family and friends and the various associations of civil society; conditions which promote the maximum ability to participate in public discourse through access to all forms of media, including the internet; conditions which encourage participation in meaningful literacy, education, work skills and other programs; and conditions which do not permit the isolation and segregation of prisoners for the purposes of punishment or convenience, except on justifiable grounds which can be tested against clearly articulated legal standards. 83 ATTempTed remOvAl Of prisOner frAncHise In 2006, the Howard Federal Government attempted to completely remove serving prisoners from the franchise in federal elections, taking the position back to before federation. 84 Notably absent from government contributions to the 2004 and 2006 parliamentary debates was any reference to the importance of the franchise as a manifestation (indeed under the Electoral 80. Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. 81. A Morrison (2007) ‘The duty of care to prisoners’ 81 Precedent, July/August 8-12. 82. B Vaughan (2000) ‘The Civilizing Process and the Janus-Face of Modern Punishment’ Theoretical Criminology 4:1: 71-91 at 26. 83. D Brown, ‘Prisoners as Citizens’ in Prisoners as Citizens, D Brown and M Wilkie (eds) Federation Press 2002 at p 324. 84. See G Orr, ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners’, (1998) 26 Federal Law Review 55; J Fitzgerald and G Zdenkowski, ‘Voting Rights of Convicted Persons’ (1987) 11 Criminal Law Journal 11; J Davidson, ‘Inside Outcasts: Prisoners and the Right to Vote in Australia’ (Current Issues Brief No 12 2003-04, Australian Parliamentary Library, 2004) http://www.aph.gov.au/library/pubs/ CIB/2003-04/04cib12.pdf; M Ridley-Smith and R Redman, ‘Prisoners and the Right to Vote’, in D Brown and M Wilkie (eds) Prisoners as Citizens (2002) 283. prisoners as citizens 19
Act, a ‘duty’) of citizenship, a basic human right, and a mechanism of participation in a democratic polity. The independent country-based MP, Peter Andren, and the leader of the Greens, Senator Bob Brown raised these broader arguments. Peter Andren: ‘the right to vote – to have a say in who governs the country and even, at a state level, who runs the prisons – is a basic human right. as a right, it is not something that should be taken away by politicians.’ 85 Bob Brown: ‘the whole basis of the respect for the rule of law rests on the participation of citizens through the democratic selection of their representatives making the law. how will prisoners subject to this feudal concept of civil death have respect for the law if they are banned from participating in its formation? one has to remember that it is our job to encourage people to take part in society, to feel empowered to be in society and to feel they have a role in society – not to take away that role.’ 86 The government argument seemed to be that disenfranchisement of prisoners enhances civic responsibility and the rule of law. That same argument had been put by the UK, South African and Canadian governments previously and rejected by the courts each time. 87 In the case of Sauvé the Canadian Supreme Court stated: the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. to deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility. 88 When challenged in the Australian High Court in the Roach case (see separate box) it was unsuccessful as well and the 2006 legislation totally disenfranchising prisoners from voting in federal elections was struck down as unconstitutional. The court upheld the 2004 legislation which restricted the vote to those serving sentences of less than three years. cAse sTudy – r v BenBriKA in r v Benbrika and ors (Ruling no 20) [2008] Vsc 80 (20 March 2008), Justice Bongiorno upheld a defence submission for a stay of proceedings on the basis that the conditions of imprisonment in the acacia unit at Barwon were such that a fair trial was not possible. the defence argument was that the oppressive conditions in which they are currently incarcerated and transported is having such an effect on their capacity to attend to their own interests in defence of the charges against them that the trial they are currently engaged in is unfair and will become more so as time passes. r v Benbrika [2008] Vsc 80, para 80. Justice Bongiorno ruled that: the minimum alterations to the accuseds’ conditions of incarceration and travel which would be necessary to remove the unfairness currently affecting this trial are as follows: 1. they be incarcerated for the rest of the trial at the Metropolitan assessment prison, spencer street. 2. they be transported to and from court directly from and to the Map without any detour. 3. they be not shackled or subjected to any other restraining devices other than ordinary handcuffs not connected to a waist belt. 4. they not be strip searched in any situation where they have been under constant supervision and have only been in secure areas. 5. that their out of cell hours on days when they do not attend court be not less than ten. that they otherwise be subjected to conditions of incarceration not more onerous than those normally imposed on ordinary remand prisoners, including conditions as to professional and personal visitors. (see para 100) an adjournment was granted to enable these changes to be made, following an earlier ruling that screens in the court had to be removed. on 15 september 2008 Benbrika was found guilty of intentionally directing the activities of a terrorist organisation and of being a member of a terrorist organisation. Five of Benbrika’s followers were found guilty of intentionally being members of a terrorist group and four others were acquitted. in February 2009, Benbrika was sentenced to 15 years in prison. Available online at http://www.austlii.edu.au/au/cases/vic/VSC/ 2008/80. html 85. Hansard, House of Representatives, 10 August 2004. 86. Hansard, Senate, 12 August 2004. 87. In the UK case of Hirst v United Kingdom (No 2) 74025/01 ECHR 2004; the South African case of Minister of Home Affairs v National Institute for Crime Prevention (NICRO) (2004) 5 BCLR 445 (CC) and the Canadian case of Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519. 88. [2002] 3 SCR 519, pp 4-5. 20 HOT TOPICS 67 > Prisoners
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