What is their legal status?Prisoners, while losing certain
rights inherent to the notion of incarceration being freedom of
movement, and liberty, would technically have otherwise equal
rights to all other members of society. However, in practice the
extent of these residual civil rights have been difficult to
define. To quote Beverly Schurr solicitor for Australian Council
for Civil Liberties, the crux of the issue is prisoners' rights is
in conflict with policies which give administrative discretion and
convenience overriding importance in prison administration.What
disadvantages do they face, legally and non-legally? / What
legislation covers these disadvantages and how effective is it?The
biggest disadvantage that prisoners face from a legal perspective
is the concept of disenfranchisement. Under current Australian
legislation Electoral and Referendum Amendment (Prisoner Voting and
Other Measures) Act 2004 (Cth) prisoners serving a sentence of 3
years or more are restricted from voting. This equated to almost
10,000 inmates restricted from voting in the 2007 election, and in
practical terms a negligible 0.07% of voters. The International
Convention on Civil and Political Rights (ICCPR) establishes
various human rights that have been ratified by Australia and
codified in the Australian Human Rights Commission Act (1986). The
ICCPR contains provisions regarding prisoners, relevant to
disenfranchisement. Article 10 s3 specifies that The penitentiary
system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Which
precedes the argument that disenfranchisement in fact impedes
social reintegration, and that allowing prisoners to vote and take
part in the election process would assist in the processes of
reformation and social rehabilitation. That being said, the AHRC
Act 1986 is limited to areas of Commonwealth powers, and thereby
the provisions regarding prisoners are only applicable to federal
prisoners, which as of 2005 consisted of approximately 3% of
inmates in Australia.
What access do people have to legal processes? Is this access
adequate?In NSW, the primary access to legal process for prisoners
is through the Prisoners Legal Service, a specialist service of
Legal Aid NSW. Unfortunately, the service is limited to minor
advice and assistance, and minimal representation. However, other
non-profit organisations, such as the Human Rights Law Centre take
on larger, more complex issues such as disenfranchisement. Notably,
Roach v Electoral Commissioner (2007) HCA 43, ruled that the
Electoral and Referendum Amendment (Electoral Integrity and Other
Measures) Act 2006 was unconstitutional and therefore invalid. The
2006 Amendment made provision that every prisoners was restricted
from voting if they were incarcerated at the time of the issuing of
the electoral writs. The SMH article Court gives vote back to some
inmates summarizes the reasoning behind the judgment as the blanket
ban was inconsistent with the constitutional requirement that the
government be directly chosen by the people, referring to s24. The
case illustrates that it is possible What appeal mechanisms do they
have, legally and non-legally?An appeals process is possible
through the Prisoners Legal Service and in addition it is possible
to petition the Australian Human Rights Commission.
Types of Evidence Legislation Australian Human Rights Commission
Act 1986 (Cwlth) Enforces the rights given in ICCPR Limited in that
its prisoner specific rights can only be applied to Federal
prisoners 3% in 2005 Electoral and Referendum Amendment (Prisoner
Voting and Other Measures) Act 2004 (Cth) Electoral and Referendum
Amendment (Enrolment Integrity and Other Measures) Act 2006 (Cth)
Ruled unconstitutional in Roach v Electoral Commissioner Cases
Roach v Electoral Commissioner (2007) HCA 43 Media Article SMH
article Court gives back vote to some inmates August 31, 2007
Statistics Approximately 10,000 people were disqualified from
voting in the 2007 election as a result of not meeting the less
than 3 years sentence requirement 13.6 million people registered
0.07% - relatively irrelevant practically International Convention
International Covenant on Civil and Political Rights (ICCPR)
Scaffold
Intro Residual civil rights Prisoners' rights is in conflict
with policies which give administrative discretion and convenience
overriding importance in prison administration. Beverly Schurr
ACCLBody 1 Current 2004 law + 0.07% stat ICCPR article 10 s3 + AHRC
1986 Federal 3%Body 2 PLS + Issues Human Rights Law Center Roach v
Electoral Commissioner 2006 Law SMH - Court gives vote back to some
inmates - the blanket ban was inconsistent with the constitutional
requirement that the government be directly chosen by the people,
referring to s24 Prisoners can petition AHRCConclusion
