South Australian Treasurer Kevin Foley and Attorney-General Michael Atkinson have just exposed the taxpayers of their state to potential claims from prisoners for mistreatment, and they are jeopardising the criminal trial process.
Why? Because recent comments by both about prisons and prisoners show a clear intention by the South Australian government to flout its obligations under UN connections on human rights.
Atkinson, a right-wing monarchist, last week lambasted magistrate Dr Andrew Cannon for suggesting in a paper on sentencing that courts should take account of crowded prisons when considering a jail term for offenders. Atkinson called Cannon “daft” and “delusional” for these comments.
Only a few weeks earlier, Mr Foley opined that he couldn’t care less about prison overcrowding. “Rack ‘em, pack ‘em, and stack ‘em in the cells”, said Foley, apparently in contradiction with a stance he took in 1994.
The problem with both these ill-informed and intemperate comments is that the South Australian government has legal obligations to prisoners which require it to provide humane treatment. And if the government does not do this, two consequences follow.
Firstly, if South Australia mistreats prisoners because of a deliberate policy of overcrowding and other actions which amount to inhumane treatment, then individual prisoners could launch legal action against the State for breach of duty of care.
The case law in this area is clear. Australia, and therefore each Australian state and territory, is a signatory to the UN Convention on Civil and Political Rights, the Convention on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and UN-approved minimum standards on treatment of prisoners. And there is also a duty recognised by courts in the common law world on the part of the state to exercise reasonable care for the safety of prisoners during their detention in custody.
If Foley and Atkinson’s comments are indicative of policy in the South Australian prison system then bring on the claims for compensation now!
The attitude of Atkinson and Foley to prisoners also opens the possibility of criminal trials being stayed (adjourned or delayed) for months, years or even permanently because prisoners cannot prepare their case adequately and therefore cannot get a fair trial. Once again, the law in this area is uncontroversial. If prison conditions are so intolerable that they are adversely impacting in a real way on prisoners getting access to their lawyers for the purpose of preparing their case, then the right to a fair trial is being breached; the courts will not tolerate this state of affairs.
Messrs Atkinson and Foley, in their desperate desire to rally around the law and order flag, have just undermined their own government’s position. How’s that for incompetence?
Atkinson and Foley are, like their leader, rallying around the law and order band wagon. However the impact is that it is one more instance of bullying. The strong man chest beating is wearing thin with a lot of South Australians seeing that the tough approach is crossing from the law and order arena into the industrial arena. The Workcover changes are very unpopular because of their unfairness and Foley was stupid enough to say that the head of Unions SA was irrelevant a couple of Sundays ago. The industrial scene has been very rocky ever since. The Rann government is also bullying the country people by closing their hospitals.
The population is getting very sick of the bully boy tactics and the fact that so many ordinary people are being demonised through restrictive laws.
The Liberals will have a chance in the next election if they understand that it is the bullying that is alienating voters. So far however they have only joined in. Foley bragged the other night that there were hundreds more prisoners in jail than when they came to power and Martin Hamilton Smith let him get off without asking about rehabilitiation or safety etc
People may not care too much about prisoners which is what Foley and Atkinson are banking on. They do however dislike the attitude being displayed – an arrogant and uncaring stance. This is likely to have more impact in the long term than a prisoner suing. After all the government would just pass a law exonerating them from any legal action if anyone tried.
As a South Australian taxpayer, I’d prefer to see prisons doing a better job of rehabilitating crims rather than just being used to punish them, but I don’t expect any particular government to actually do this any time soon. State elections here are law-and-order auctions every time. That said, it seems to me that all governments regard their ‘obligations’ under UN conventions as being pretty thin. Has there ever been a case of a prisoner successfully suing a government as Greg Barns suggests here based on these UN conventions? It’s like the silly article by Peter Faris QC in Crikey when Rudd made the apology to the stolen generations, referring to the possibility of legal claims based on UN conventions regarding the rights of children. Goverments regard UN conventions as feelgood piles of nothing, I think. Lawyers like Barns and Faris (who normally disagree on so much in these pages) see them as opportunities to sue people, but I don’t think these conventions have the standing lawyers wish they did.
Agreed.
Greg barns obviously has no understanding of law. You only have a claim for breach of duty of care if you suffer a loss resulting from that breach. And UN Conventions are not binding unless they have been ratified AND incorporated into Australian law; the worst that happens is the UN holds a hearing (at which Australia respectfully participates), the UN issues an “Adverse View” and Australia politely responds to it.