Castan Centre for Human Rights Law

"Prisons, privatisation and human rights"

Dr Bronwyn Naylor

Law Faculty, Monash University

Introduction
A study on prisoners' human rights in 1986 by Gordon Hawkins was summarised as follows:
... in neither Australia, nor the United States, the United Kingdom or Canada, do prisoners have substantial and enforceable rights. Indeed the study leads to the conclusion that prisoners are probably the most rightless group within the population, with neither the law nor the courts providing protection (Hawkins, 1986, v).
Have there been significant changes in Australia since 1986? Rights debates have developed since that time, and the privatisation of prisons has obviously had political and practical implications for the rights of prisoners. However fundamental questions about the legitimacy of imprisonment, and the protections accorded to prisoners, remain.

Prison management has been undergoing massive change in Australia and overseas in recent years, with the introduction of private corrections providers. Under a conservative government strongly committed to a competition and privatisation agenda Victoria restructured its prison system and introduced private prisons more rapidly, and more pervasively, than any other Australian jurisdiction, through the 1990s.
As at July 1995, Victoria's prison system comprised 15 publicly-managed prisons. By June 1999, five publicly-managed prisons had closed,2 three private prisons had opened,3 and the system comprised ten publicly-managed prisons and three privately-managed prisons, with 45% of the prisoner population housed in private prisons. The public prisons were managed by CORE - The Correctional Enterprise, and the private prisons by private companies - Port Phillip by Group 4 Securitas, Fulham by Australian Correctional Management (ACM), and the Metropolitan Women's Correctional Centre (MWCC) by Corrections Corporation of Australia (CCA).4 MWCC held over 80% of Victoria's women prisoners.
All 13 prisons are supervised and monitored by the Office of the Correctional Services Commissioner (OCSC), established in 1995 within the Department of Justice.5 The present Commissioner is Penny Armytage.
The years 1999-2001 have seen reports critical of aspects of privatised corrections by the state Auditor-General and coroners' inquiries, and independent inquiries into general privatisation practices (the Russell Report) and prison privatisation specifically (the Kirby inquiry). In 1999 a state Labor government was elected with an official policy against privatisation of prisons.6
Continuing problems with the management of the MWCC by CCA led to the government 'stepping in' in September 2000 to regain control of the prison.7 MWCC is now managed by CORE and has been renamed the Dame Phyllis Frost Centre (after the influential campaigner for improvements in women's imprisonment).
CORE now manages 11 prisons in Victoria, with a total population of around 1882,8 or around 60% of the prisoner population. The remaining 40% of prisoners are held in privately-run prisons. This is the highest proportion of private-sector imprisonment in the world; Queensland has the next largest Australian private prison population at 11.5%.9
In the year 2000 there were 2970 male prisoners and 183 female prisoners, a total of 3153 prisoners, in Victorian prisons.10 Prisoner numbers are increasing across Australia and in other comparable countries, at rates higher than the rate of increase in reported crime, due primarily to longer sentences and increasing use of custodial sentences.
Overcrowding in Victorian prisons, for example, has become a serious issue, and discussions are occurring about expanding capacity and/or building further prisons. At 30 June 2000 the men's prisons were utilised at 109.5% capacity and the women's prisons at 112.3%, an overall average utilisation rate of 109.7%.11
The first Australian private prison was opened in Queensland, Borallon Correctional Centre (1990), built by the Queensland government and operated and managed by Corrections Corporations of Australia (CCA). Queensland then opened Arthur Gorrie Correctional Centre in 1992, run by ACM. In NSW there is one private prison, Junee Correctional Centre, commissioned in 1993 and owned and operated by Australasian Correctional Management ACM.12 WA initially substantially reformed its public sector regime, the government working co-operatively with the Prison Officers' Union. The first private prison, Acacia, was eventually opened, in 2000; South Australia's Mt Gambier Prison is government-owned but run by Group 4.13
The enthusiasm for privatisation appears however to have lessened in recent years. In Queensland in 1997 the state Corrective Services Commission bid successfully against the private sector to manage Woodford Correctional Centre.14 In the UK in 1999 a privately-run prison was put to tender at the end of the private provider's contract, and the contract was won by the public sector Prison Service.15 Changes in Victoria have already been noted.
The New Zealand Minister for Corrections, Matt Robson, was reported to have said in January 2000 that
there has been an experiment overseas - driven by ideology - to introduce private prisons and it hasn't worked. The ideology-driven belief that ... private is better is not suited to our prisons, and this government won't let New Zealanders become guinea pigs for an experiment here. ...at the end of the day, we don't want prisons to be a growth industry. We want the need for prisons to decrease by putting resources into crime prevention.16
The focus of this paper is on the implications of the recent trend to privatising corrections for prisoners' human rights. As preliminary point, however, it may be noted that imprisonment was historically largely private. Religious and non-profit organisations have also long been involved in corrections.
Early forms of prisons were local, mainly private, often labour-exploiting (see White 2001, 8ff). The eighteenth century saw the development of modern prisons in the US and UK. The system of transportation of convicts from the UK to Australia in the eighteenth and nineteenth centuries was a mechanism for getting rid of prisons as well as prisoners; the convicts were then available as labour for private contractors, who essentially managed their custody.17 'Convict-leasing', the cheap hire of convicts for private labour, was widespread in the US until the early part of the twentieth century.18

The protection of human rights through law requires both articulation of rights in law, and mechanisms for enforcement. As Kinley points out,
The legal expression of human rights is not by itself sufficient; enforcement - and, in particular, enforcement by those directly, adversely, affected by a breach - must be provided for (1998, 18).

How are prisoners' human rights articulated and enforced in Australia? What is the impact of privatisation on the protection of prisoners' rights? I will outline the international and domestic mechanisms for protection of prisoners' human rights, and will then consider the implications of privatisation for the protection of rights.

International human rights treaties and guidelines affecting prisoners
ICCPR
The ICCPR is the main international statement of prisoners' human rights, and will be the focus of this discussion. The Convention was ratified by Australia in 1980. Complaint can be made to the UN Human Rights Committee pursuant to the first Optional Protocol (1991), by an individual who considers his/her rights have been violated.19
Several ICCPR articles address the situation of prisoners. The main articles, which will be considered here, are articles 7 and 10.20
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. ...
General Comment 20 notes that no definition 'list' is necessary: the meaning depends on the nature, purpose and severity of the treatment. Article 7 covers acts causing physical pain and mental suffering; the prohibition extends to excessive corporal punishment.
Related to article 7 is the UN Convention against Torture and other cruel, Inhuman or Degrading Treatment or Punishment 1984. This Convention provides a more detailed definition of torture; the cases on this Convention are relevant to the interpretation of Article 7 of the ICCPR.21
Under Article 7 the UN Human Rights Committee has dealt with issues such as:22 beatings and ill treatment by prison officers (several Latin American and other cases);23 violations by employing whipping and flogging of prisoners as punishment; use of solitary confinement as punishment other than very short periods as disciplinary measure;24 holding prisoners on 'death row' for extended periods leading to high levels of stress and anxiety;25 and certain methods of restraint such as shackles. Evatt (2000) notes that 'allegations of the use of hobbles in WA prisons, leading to wounds and scarring, were recently made to the Torture Committee'.
ATSIC, in a submission to the Torture Committee, argued that mandatory sentencing in the NT and in WA 'may constitute cruel, inhuman or degrading treatment'. Evatt (2000) notes that the HRC has been concerned about mandatory sentencing, as possibly leading to the imposition of disproportionate sentences, but has not defined it as cruel or inhuman punishment.

Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

There is an overlap between article 7 and article 10. 'The prohibition in article 7 is complemented by the positive requirements of article 10' (General Comment 20). In practice 'the Committee deals with beatings and physical violence against prisoners under article 7 and questions relating to prison conditions under article 10' (Evatt 2000).
ICCPR Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasize their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in article 14, paragraph 2. The reports of States parties should indicate how the separation of accused persons from convicted persons is effected and explain how the treatment of accused persons differs from that of convicted persons (General Comment 21).
Australia has lodged a reservation against the requirement of segregation of remand and convicted prisoners. It reads in part:
"In relation to paragraph 2 (a) the principle of segregation is accepted as an objective to be achieved progressively... ".
This reservation was endorsed in Cabal v Secretary, Dept of Justice (Vic) (2000) 177 ALR 306 (FCA).26
Victorian prisons do not keep unconvicted prisoners separate from convicted prisoners. The main remand prison is Port Phillip Prison, which has at least 60% remand and 40% sentenced inmates, housed together.27 This is also the case, for example, in South Australia.28
Article 10(3) states that the essential aim of imprisonment is 'reformation and social rehabilitation':
The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation....
Read with 10(1) the ICCPR clearly indicates that punitive aims are subordinated to rehabilitative aims, that prisoners retain their rights, other than as necessitated by the requirements of imprisonment.29
This raises a fundamental question about the basis for claiming rights for prisoners. The ancient common law doctrine of 'civil death' was 'the ultimate form of social punishment ... the annihilation of the legal person'.30 The doctrine, which can be traced through feudal times to Roman and Greek practices, included the loss of property rights, and 'rights associated with political and public affairs'.31 Despite the abolition of forfeiture by the Forfeiture Act 1870 (Imp), other civil disabilities were retained for those sentenced for more than 12 months, including automatic loss of the right to sue and to sell property, and 'any right of suffrage'.32
The WA Watch Committee (2000), in a submission to the Committee against Torture, argues that the residuum principle - that prisoners retain all rights not precluded by incarceration, (as reflected in the ICCPR and other international instruments) - also means 'that imprisonment should be a punishment of last resort, that it should be for the shortest possible period, and that when people are imprisoned, it is as punishment, not for punishment. In other words, deprivation of liberty is the punitive measure, not further pain and suffering occasioned by ill-treatment.'(2000, 80)
This seems to have been accepted in the UK,33 Canada and the US. It is not, however, clearly accepted in Australia. The doctrine of 'civil death' was endorsed by a majority of the High Court in 1979.34
It should be noted that the Victorian Corrections Act 1986 s.47 sets out a charter of prisoners' rights, which are specifically stated to be 'additional to ... any other rights which a prisoner has under an Act ... or at common law' (s.47(2)). This provision is consistent with a presumption that prisoners do retain their rights upon imprisonment, subject to the requirements of imprisonment.
This issue was considered recently in the Victorian Supreme Court in HWT v Correctional Services Commissioner [2001] VSC 329 in terms of the 'principle of legality'. The court appeared to accept that the prisoner retains fundamental human rights to the extent that such rights are not necessarily curbed by virtue of the necessities of imprisonment and the maintenance of discipline and order in the prisons. (HWT p. 12) 35
In this case the CSC located her statutory power to refuse media access to a prisoner as arising under s.21(1) Corrections Act
...which makes the Governor [and CSC] responsible for "the management, security and good order" of the prison. The Commissioner does not contend that that section overrides the civil rights of prisoners, save to the extent that their exercise can not be permitted due to considerations relating to management, security and good order of the prison. (HWT at 14).

Whilst these comments recognise the residuum principle, the reservation of managerial powers clearly allows for a wide reading of the scope for restricting prisoner rights.

UN Standard Minimum Rules for the Treatment of Prisoners 1957
The UN Standard Minimum Rules (SMR) were adopted in 1955 and endorsed in 1957.36
The SMR set out minimum standards in relation to:
* necessities such as food, water, basic clothing; information concerning rights; grievance procedures; staff to include medical officers.
* Access to social and cultural information: eg entitlement to correspond with family and friends, and receive visits; access to adequate library; information on major news items; access to religious services.
* Discipline - protection from cruel, inhuman and degrading treatment, including corporal punishment, solitary confinement, instruments of restraint as punishment.
The Rules are not a convention and therefore have no legal effect.37 They are stated as seeking 'to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions' and to 'stimulate a constant endeavour to overcome practical difficulties in the way of their application' taking account of the variety of legal, social, economic and geographical conditions in the world (SMR clauses 1 and 2). UN member states are required to report on their implementation. The UN HRC has stated that State parties reporting on compliance with Art 10 of the ICCPR should also indicate to what extent they apply the relevant UN standards, including the Standard Minimum Rules and the Body of Principles (1988). The HRC also refers to the adoption of the Standard Minimum Rules, and the Body of Principles (1988) when considering whether article 10 has been complied with.
There has been limited adoption of the Rules internationally, although many countries indicate they have incorporated them.38 In Victoria, the contracts of the private prison providers have the SMRs (and other standards) annexed as 'policy' which is to be taken into account (discussed further below).
The Standard Minimum Rules overlap to some extent with the express requirements of article 10 - eg rule 8 requires segregation of convicted and remand prisoners. The SMRs have been useful in identifying standards for 'humane' treatment, with their emphasis on single cells, adequate lighting, heating and ventilation, bedding, clothing and food; medical services and access to information.39
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
The Body of Principles was adopted by UN General Assembly in 1988. These are also a general set of principles, adopted by consensus by the General Assembly and annexed to a resolution of the General Assembly; as with the SMRs, the Body of Principles is not binding in international law. They are, however, also taken into account when assessing compliance with Article 10. The Body of Principles includes provision for regular family contact and for access to lawyers. It also addresses what should be included in disciplinary offences, the nature of penalties that might be imposed, and requires that such information be prescribed by law and published.
Basic Principles for the Treatment of Prisoners
The UN General Assembly adopted the Basic Principles in 1990. These set out several general principles addressing respect, lack of discrimination, and prisoner welfare, and requiring the observance of rights under the ICCPR and other covenants, and are aimed at implementing the SMR.40 Principle 2 emphasises the continuing existence of prisoners' rights, which are only to be limited as 'demonstrably necessitated by the fact of incarceration', an explicit rejection of the notion of 'civil death' discussed earlier.

Domestic instruments setting out prisoners' human rights
Standard Guidelines for Corrections in Australia - 1996
The Standard Guidelines (SGC) were developed by a working party including heads of prison services, prison officers, prisoners' action groups, Law Foundations, and the Council for Civil Liberties. Minimum Standard Guidelines for Australian Prisons were published in 1978, 'based on the UN Standard Minimum Rules for the Treatment of Prisoners and related recommendations and the Council of Europe Standard Minimum Rules' (Preface para 2). The Minimum Guidelines were reviewed in 1986 by correctional administrators to take account of developments in corrections including community-based corrections. They were further revised (and renamed) in 1992 to reflect the recommendations of the Royal Commission into Aboriginal Deaths in Custody.41
The Standard Guidelines are currently under review. The Review's terms of reference include consideration of the moves to contracted prison services, a re-focusing on rehabilitation and reintegration, and consideration of needs of special categories such as women and indigenous prisoners.42
The Australian Standard Guidelines deal with:
* accommodation, work, food, medical services.
* Disciplinary processes - including the requirement of representation where prisoner risking further imprisonment.
* Prohibition of some instruments of restraint, teargas, dietary restrictions as forms of punishment.
* needs of female prisoners - access to accommodation with children; pre and post natal care, birth in a hospital outside prison 'where practicable'.
The Guidelines have been approved by Australian prison administrators but are not incorporated into legislation. They expressly do not have the force of law.43 They are stated to be 'guidelines' only, and include no provisions for enforcement or consequences of breach. They also tend to be general, with little detail, and would in any event be difficult to rely on. Groves concludes that
... the absence of any means by which prisoners may enforce general principles of particular standards contained in the Guidelines, or seek a remedy for a failure by prison officials to adhere to the Guidelines, renders the Australian Guidelines of little practical relevance to prisoners (2001, 33).

Prisoners' rights as outlined in Corrections Act (Vic) and regulations
The general operation of Victoria's correctional system is legislated for in the Corrections Act 1986 and the Corrections Regulations 1998.
Section 47 of the Corrections Act sets out a list of prisoners' rights, dealing with (inter alia) access to open air exercise, adequate clothing, food, medical care, to at least one half-hour visit per week (s.47(1)(k)) and also the right to make complaints to the Minister and other outside authorities (s.47(1)(j)), and to send letters to, and receive letters from the Ombudsman without those letters being opened by prison staff (s.47(1)(m)).44
Like many guidelines and rules, many of the rights in s.47 are expressed in general terms - there is a 'right to take part in educational programmes' (47(1)(o)) but no detail about the standard of programmes, or regularity or quality of teaching; the right to receive at least one visit per week does not to create entitlement to a contact (as distinct from box) visit;45 other rights are subject to prison approval, for example participation in religious services with other prisoners and possession of religious articles.
The Act provides no mechanism for enforcement. It would, however, be possible to bring a judicial review action through the courts for failure to provide a specific and identifiable right - such as access to open air at least one hour each day (s.47(1)(a)) or to be able to make appropriate complaints (s.47(1)(j)). The provisions have not, however, been relied on successfully in legal action by a prisoner. 46
Groves is critical of the limited practical application of s.47:
... the practical value of the various statutory rights granted to prisoners is doubtful. ...In my view the imprecise nature of the rights ... coupled with the absence of any means by which those rights may be enforced, detracts significantly from the value of the rights purportedly granted to prisoners. More particularly, the creation of prisoners' rights, the enjoyment of which is conditional upon the approval of prison officials, represents no significant advance for prisoners (2001, 22-23)
Further, the general statutory obligation of prison Governors to maintain the security of the prison and the safe custody of prisoners (s.20(1) and (2)) and to be responsible 'for the management, security and good order of the prison and the safe custody and welfare of the prisoners' (s.21(1)) is likely to be interpreted as allowing all but the most specific of the s.47 (or any common law) rights to be overridden in appropriate circumstances.
Current practices potentially raising human rights issues in prisons (public and private) include the strip-searching of prisoners, and the rigorous regimes of drug testing by urinalysis. There are broad powers of search (s.45) and drug testing (s.29A) in the Corrections Act 1986; the drug-testing and penalty regime is also established by the Victorian Prison Drug Strategy (and specified as a relevant 'policy' under the private prison contracts). Such practices may also be authorised under the wide general discretion in ss.20 and 21, in relation to controlling the entry and transfer of items prohibited items. These powers would, nonetheless, be subject to judicial review if carried out for a non-authorised purpose. In the UK context it has been stated that:47
Searches whose purpose was purely to harass a prisoner would undoubtedly be seen as an abuse of discretion. Similarly the power the search is subject to the requirement of reasonableness, as regards both the decision to search and the manner of its execution. Thus courts have suggested that ...a decision to subject all prisoners to a strip search or body cavity search without any advance reason to suspect the need for this might be viewed as a decision no reasonable governor would reach.48 ...
The policy of routine strip searches before and after visits has been upheld by the Divisional Court in R v Secretary of State; ex p. Mohammed Zukfikar.49
It may also be argued that excessive or forceful searches may be said to degrade a prisoner, and constitute a breach of article 7 of the ICCPR.50
In the UK provisions for mandatory drug-testing were unsuccessfully challenged in 1996; the applicant had argued that such testing violated the presumption of innocence and/or amounted to an unnecessary interference with privacy.51

Contracts and other prison operating documents
All Victorian prisons operate under contracts or 'Service Agreements'. These will be outlined here; the private prison contracts will also be discussed further below.
At the level of individual contracts, private prison operators enter Prison Service Agreements which set out contractors' obligations in terms of Service Delivery Outcomes (SDOs), and provide a bonus and penalty approach to performance criteria. 52 These mechanisms depend on internal monitoring by the contractor and presentation of regular reports to the Correctional Services Commissioner (CSC), who approves payment in part or full of performance linked fees (PLFs). For example, at Port Phillip Prison, the PLF is calculated on the following basis:53
SDO category
% PLF
Accommodation services:
35%
Prison Operation (eg number of escapes and self-harms; assaults; positive drug tests)
25%
Education and training
10%
Prison Industries
10%
Health: Primary care
10%
Health: secondary and tertiary care
10%

The eleven public prisons run by CORE have Service Agreements, and are also required to achieve specified SDOs but without the direct financial implications - to reward achievement or penalise failure to satisfy SDOs - of the private sector contracts. Their arrangements are based on a Framework Agreement (with CORE as the service agency) and a Service Agreement (formalising the quantity and nature of services and CORE's proposed delivery model).54 The Auditor-General (1999) recommended the establishment of uniform performance requirements across the system.
The obligations of prison management are therefore set out in the Statute and Regulations, the Service Agreement, under government policies and standards, and under internal operating procedures.
Specific obligations of prison contractors are also established in the guidelines and standards developed by each of the contractors and approved by the Office of the Correctional Services Commissioner (OCSC) in accordance with the more general contractual requirements.55
Clause 43.1, Compliance requirements, of the (former) MWCC contract states that 'the Correctional Services must at all times comply with ... relevant legislation and policy'. Annexure M to the contract sets out a range of policy documents, including UN Standard Minimum Rules for the Treatment of Prisoners, Standard Guidelines for Corrections in Australia, Royal Commission into Aboriginal Deaths in Custody, and Victorian Prison Drugs Strategy documents as falling within the meaning of 'policy' as used in the contract. It is, however, unlikely that the UN Rules, or the Australian Guidelines, would be held to therefore form terms of the contract, breach of which might be legally enforceable.

Mechanisms for enforcing rights
A International human rights instruments
1. Availability of remedies for breach of ICCPR
The ICCPR - and international treaties in general - are not binding in themselves. The ICCPR provides that member states are to implement its provisions and provide effective remedies for breaches (article 2). The Commonwealth Government enacted the Human Rights and Equal Opportunity Commission Act 1986, to which the ICCPR was attached in a schedule. However it has been held in numerous cases that the ICCPR did not become binding in Australian law simply by being scheduled and does not confer statutory rights.
The matter was raised recently in an application to HCA by Craig Minogue that his rights were being breached by provision of a deficient vegetarian diet (identical meals twice a day for 3 years at Barwon prison).56 The argument was based on
- breach of statutory duty pursuant to s.47(1)(b) and (c) of the Victorian Corrections Act;57
- breach of CORE's Operational Procedures
- breach of the common law duty of care owed to prisoners.
- rights under the ICCPR, especially article10(1).
The prisoner applied to the High Court under s.75(i) Constitution, in relation to a matter arising directly under a treaty, and the matter was remitted to the Federal Court under s.44 Judiciary Act. The question in that court was specifically whether the applicant's claim gave rise to a matter arising under a treaty. The application was unsuccessful, Weinberg J in the FCA holding that there was no jurisdiction in the HCA or FCA in this case. The court affirmed and followed case law on the following points:
1. Australia's ratification of the ICCPR does not give rise individual enforceable rights58;
2. at most, international conventions may be drawn on where Australian law is ambiguous or uncertain, but here the claim was for a separate enforceable right.
3. Inclusion of the ICCPR in the schedule of HREOC Act does not constitute incorporation into Australian law. 59
Weinberg J also rejected the applicant's arguments that reference to the ICCPR in s.138 Cth Evidence Act 1995 (s.138) meant that the ICCPR was incorporated into Australian law. 60
The full Federal Court confirmed on appeal that the ICCPR is not incorporated into Australian law, and cannot form the basis of an application to the High Court under its powers to hear matters arising under any international treaty.

Traditionally the courts continued to hold that correctional statutes were not intended to confer enforceable rights on prisoners.61 Despite cases such as Raymond v Honey (1983) which have accepted that prisoners may bring action under legislative provisions, the courts have still tended to show deference to the security agendas and expertise of the prison management.62
A prisoner in SA recently brought an action for breach of article 10 in relation to the use of 'doubling up' at the Adelaide Remand Centre as overcrowding required single cells to be converted to double bunk cells.63 He referred to such issues as increases in assaults and rapes and attacks on prison officers as a result of tensions due to doubling up; he also referred to requirements for smokers and non-smokers to share cells, and to the loss of privacy, for example in using the lavatory. In addition he noted that there is no segregation of convicted from unconvicted prisoners.
Justice Millhouse agreed that the prison conditions drawn to his attention amounted to a breach of article 10(1) and (2); that they violated the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person, a right protected by the Covenant.64 However he was unable to give force and effect to the relevant Covenant provisions as they are not backed up by Commonwealth or State legislation. Whilst it is a schedule to the Cth HREOC Act it is not binding on the States.65

The provisions of ICCPR do not therefore appear to be directly enforceable. The lack of remedies in Australian law for human rights violations was alluded to recently in Collins case, discussed earlier, where Millhouse J concluded that prisons conditions were breach of art. 10 but that this breach was not enforceable. Evatt (2000) concluded however that the judge 'held out the hope that a complaint to the Human Rights Committee would at least put Australia under international scrutiny'.
The dominating interpretation to date provides that the ICCPR rights will, at most, be relevant in interpreting legislation the courts categorise as ambiguous, and are a relevant consideration (perhaps giving rise to a legitimate expectation of consideration66 for decision makers.
McMillan and Williams in Kinley (ed) 1998 conclude that in the absence of a Bill of Rights,
There is no general legal requirement in Australia that a statutory discretion be exercised in accordance with human rights norms, or with an international convention to which Australia is a party. There is an obligation, however, to give consideration to the principles of any international convention which has been ratified by Australia and which has a bearing on the rights affected by the exercise of discretion, and to give notice to a person if the decision to be made will clash with the convention principles. It can also be said that a decision which does not have regard to the human rights dimension will be closely scrutinised on review and is likely to be set aside (1998, 88)
ICCPR Article 7 and article 1 of the CAT were referred to in the Victorian Supreme Court in Binse v Williams [1998] 1 VR 381 but not applied. The Court accepted that the broad general managerial powers in s.20 (the officer in charge is to take 'all reasonable steps for the security of the prison' s.20(1) and 'for the safe custody and welfare of the prisoners' s.20(2)) and s.21(1) Corrections Act (the Governor is responsible for 'the management, security and good order' of the prison) were to be read expansively. The court accepted that international instruments could be referred to where there was uncertainty or ambiguity in the domestic legislation, but found no ambiguity here.
Grove comments on this case,
... if Australian courts steadfastly refuse to acknowledge the existence of any uncertainty when faced with an almost open-ended statutory power, international instruments may have little, if any, role to play in the interpretation of Australian correctional legislation (2001, 57).

2. Availability of remedies in Australia for breach of ICCPR - complaints to the Human Rights Committee
Complaint can be made to the UN Human Rights Committee pursuant to the first Optional Protocol, by an individual who considers his/her rights have been violated.67 Australia acceded to the First Optional Protocol of the ICCPR in 1991.68
This process may be of limited assistance to prisoners. The HRC cannot consider a complaint until the individual has exhausted all domestic remedies (Opt. Prot. Article 5(2)(b)). This may make the process too slow and cumbersome for many prisoner complaints. Further, even if a decision is made in favour of the prisoner, there is no means of enforcement.
The WA Watch Committee conclude that essentially
The potential strength of [the HRC and the Committee against Torture] lies in their international publicity and the embarrassment caused to the breaching state by an adverse report. (2000, 84)

3. Action through HREOC
HREOC is of limited assistance in relation to the majority of Australian prisoners, as its jurisdiction in relation to human rights issues is restricted to investigating actions of Commonwealth agencies.69 This was the conclusion of the Federal Court in Minogue v HREOC. 70 Minogue complained to HREOC about conditions at Barwon prison, especially inadequate access to legal materials, documents and computer facilities to prepare an appeal. HREOC refused to inquire, on the basis that its jurisdiction was limited to Commonwealth agencies. Minogue's appeal to the full Federal Court failed.71

B Domestic remedies in Australia
Institutional remedies will be outlined first, followed for a brief consideration of court-based remedies
Internal complaints mechanisms
The Corrections Act s.47 provides for the right to make complaints to the Minister, the Secretary, the Governor, an official visitor and the Ombudsman (s.47(1)(j)), and to send letters to, and receive letters from the Ombudsman without those letters being opened by prison staff (s.47(1)(m)).
Each prison has its own Operating Procedures, which provide (inter alia) for prisoner grievance procedures. For example, CCA's policy when it managed the MWCC provided for a 'grievance officer' to be nominated by General Manager; provision for confidential receipt of prisoner grievances; assurances that there would be no retaliation or harassment for use of procedure; access to the Minister, the OCSC, Official Visitor, Ombudsman, and the General Manager of prison, with the expressed preference, however, for resolving complaints at the lowest level. The policy set out time lines for handling grievances; remedies, and a right of appeal to the General Manager.
External complaints mechanisms: (a) Prison Visitors
The Corrections Act provides for the appointment by the Minister of 'official visitors' (s.35). The Official Visitors scheme 'provides the Minister for Corrections with independent advice regarding the operation of the prison ... A secondary role is to facilitate contact and involvement between the prison and the community' (Kirby, 2000, 23). Official Visitors are expected to visit the prison to which they have been appointed to inspect the prison and discuss issues with prisoners and staff, and must report monthly to the OCSC. Prisoners and officers can request to see the Official Visitor, and when the Official Visitor intends to visit the Governor is required to post a notice advising of the time and date of the visit.
The Kirby inquiry saw the scheme as playing 'a key role in "opening up" the system' and a valuable accountability measure (Kirby, 2000, 75). The report made several recommendations to clarify and enhance the role.72 The Auditor-General had also noted in 1999 that there was room for improvement, including provision of better briefing, support and training.73

External complaints mechanisms: (b) Ombudsman
State and Federal parliaments have established an Ombudsman's office, with the tasks of investigating complaints of poor government administration on behalf of aggrieved citizens, and recommending corrective action to the government department or agency. The scheme has been adopted in many jurisdictions to address concerns about the accountability of bureaucratic power.74
The Ombudsman only has power to investigate and recommend; it cannot enforce its findings. The only additional mechanisms is reporting to Parliament on recalcitrant departments.
Victorian prisoners have a right to complain to the state Ombudsman.75 The Corrections Act specifically provides for that right, and that prisoners can write to the Ombudsman without having those letters opened.
The Victorian Ombudsman dealt with 562 complaints from prisoners in 1999-2000.76 Complaints about CORE prisons represented 248 of these,77 Group 4 (Port Phillip) 156, CCA (MWCC) 43, ACM (Fulham) 68 and the OCSC 47.
The main areas of complaint were visits (76), medical issues (44), employment/funds (44), drug testing (43), lost/damaged property (43), classification/protection (41), mail/phones (40) and charges/hearings (20).78
A limitation in the prison context is that the Ombudsman does not intervene until all other avenues have been used, requiring the prisoner to complain to the prison authorities first. This may be an appropriate process in the general public sector but may cause difficulties in a system involving a substantial imbalance of power, and where some prisoners may be reluctant to complain to the prison authorities.
The Ombudsman has a limited capacity to respond quickly, and limited investigative powers and resources. The office may be seen as being more likely to rely on prison responses and information in deciding on a prisoner's complaint.
A general problem identified by the Ombudsman in the 1999-2000 Annual Report was the existence of inconsistencies in treatment of prisoners across the public system and the three private providers (at the time). Differing (and excessive) levels of fines at disciplinary hearings was identified as one example.79 Problems of fragmentation across the system, especially with health service provision, were also highlighted by Kirby (2000) (pp.83ff), a dangerous situation also pointed out in the previous Coronial inquiries.
Victoria has no independent inspectorate of prisons. This may be contrasted with the situation in the UK and in WA. In the UK there is an independent Prisons Ombudsman, who reports to the Home Secretary.80 UK prisons are also subject to review and reporting by HM Chief Inspector of Prisons, a body established in 1980 and located within the Home Office which carries out planned and unannounced inspections of both public and private prisons, and reports publicly on these audits. HM Inspectorate has developed a highly independent and influential role, despite having only advisory powers.81
The Western Australian government has recently established an Inspector of Custodial Services, WA, under the WA Prisons Act 1981 as an independent prison auditor. Richard Harding has been appointed as the first Inspector. His role is to inspect every prison at least once every three years and to report to the Parliament. The Inspector is not a public servant, and has limited ministerial control, reporting to Parliament and to the Minister.
The Office of the Inspector of Custodial Services was established by the Western Australian Parliament under the Prisons Act 1981 (WA) in 2000 to bring independent external scrutiny to the standards and operational practices relating to custodial services within the state. The Office, which falls within the general portfolio responsibility of the state Attorney General, is answerable directly to the Parliament.
Initially, the jurisdiction will extend to adult prisons (public and private), court custody and prisoner transportation, as well as those Police lock-ups whose operation has been contracted out to the private sector.
The core responsibilities, in this initial stage, are to carry out comprehensive inspections of all individual prisons in the state and to conduct 'thematic reviews' of prison services - i.e. assessments of system-wide issues. All Reports are tabled in Parliament. 82

Court action on statutory rights
As noted earlier, the courts - in Australia and the UK - have been reluctant to find any common law rights in prisoners, or even to recognise that corrections legislation gives rise to enforceable rights. Historically, prisoners could not seek judicial review for failure to comply with a statutory duty.83
Dixon J, in Flynn v R (1949) 70 CLR 1, refusing an application by a prisoner for habeus corpus on the basis that the prison regulations entitled him to release, stated,
... if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain. Such a construction of the regulation-making power was plainly never intended by the legislature and should be avoided. (at 8).
The courts emphasise the primacy of security considerations and expertise of prison managers, as requiring a non-interventionist approach by courts. Taylor J observed in Vezitis v McGeechan (1974) 1 NSWLR 718, 721,
Section 7 of the Prisons Act [NSW] casts upon the Commissioner ... the care, direction, control and management of all prisoners. He has in this prison, so I was told, upwards of one thousand prisoners, and his foremost obligation as part of the management of the prisoners is security. If for security reasons he elects to treat those he regards as security risks differently from other prisoners, and provided he does not do so in breach of the Act or the regulations, then what he does it not examinable by this Court. ... In my opinion the management of the gaol and the prisoners therein is given to the Commissioner in very wide terms, and the manner in which he carries out his duties imposed by the section ought not to be examined by this Court unless there is clear infringement of the Act or regulations.

In a recent application, upon refusal of the OCSC of permission for a journalist to interview a prisoner, Eames J in the Victorian Supreme Court noted that
Earlier statements of courts often quite narrowly confined the right of prisoners to review managerial or administrative decisions of prison authorities, and emphasised the lack of rights of prisoners. Arguably, later developments in administrative law have seen the adoption of a less structured approach (although the later authorities continue to emphasise the inappropriateness of courts too readily interfering with the management of prisons, and many of the earlier authorities also acknowledged the retention by prisoners of some civil rights) (Herald and Weekly Times v Correctional Services Commissioner [2001] VSC 329; 13 September 2001, at 11).
As discussed earlier, the generality of the rights provided under s.47 would make it difficult to enforce them, although failure to provide a specific right - such as the right to daily exercise - might be enforceable eg by injunction or mandamus.84 The general managerial powers of prison Governors/ Managers may also override specific rights, as noted above.

How does privatisation change this picture?
What is 'privatisation'?
There has been a widely-discussed trend through the 1980 and 1990s across the world to reducing the involvement of government in the provision of services and performance of particular functions. Rationales range from economic concerns with cost, risk and efficiency to ideological visions of the appropriate role of government as a small policy-making core overseeing (to a greater or lesser extent) the outsourced or privately-owned agents of implementation of that policy. But the term 'privatisation' covers a range of possible ways to achieve this result. It can cover -
... something as broad as shrinking the welfare state while promoting self-help and voluntarism, or something as narrow as substituting a team of private workers for an all-but-identical team of civil servants to carry out a particular task'.85
In the context of corrections, privatisation86 may involve the outsourcing of specific services (medical, educational, catering etc) or the private financing and construction of prisons to be run by the public sector, through to private sector construction, management and operation of the whole centre under contract to the government.
Outsourcing of specific functions has occurred for some time. Privatisation as it currently operates in Australia and the UK, however, now involves the entire package - (DFCM) design; financing; construction; management (UK framework), or as in Victoria the BOO structure - private providers build, own and operate the prisons.87 The contracts require provision by the contractors of accommodation for 20 years, with an agreement for provision of correctional services (prison operation, health services, education, prison industries) for five year terms.88
However it should be emphasised that privatisation of corrections always involves retention of overall responsibility by government, the 'purchaser' of the service. And - unlike the situation with privatisation of utilities and other GBEs - the government continues to pay the costs of running the prison.
As White points out,
no prison in the contemporary world can be fully private. Every prison remains intimately connected to the state, incarcerating inmates arrested, prosecuted, and sentenced by the state for violating the (still) very public criminal laws and their analogues (for example, juvenile offender laws). In this sense, the privatization of prisons is much unlike, say, the privatization of steel mills or utilities or even schools, which may be mandatory and relatively coercive in operation, but to a much more limited degree than prisons. Another dynamic that keeps the private prison very public is that private prisons operate exclusively on revenues derived from the state. (White, 2001, 7)

The government also establishes the regulatory framework - the statute, the regulations and the regulatory or monitoring agency/ies.

Why have governments favoured privatisation of corrections?
As noted earlier, privatised corrections is not a recent concept. Privatisation of corrections in the late twentieth century has, however, occurred as a result of particular political and economic imperatives.89
The globally-experienced reassessment of the role of the state has led to particularly rapid change in Australia, with the added impetus of the adoption in 1995 of a national competition policy by state and federal governments.90 National Competition Policy provided ideologically-based support for devolving government services to the private sector, with the presumed advantages of market pressures from competition. Among Australian states, Victoria led the way, privatising state-owned utilities from the mid-1990s, and substantially restructuring the prison system from the same time to become the most fully privatised correctional system in the world (as noted earlier).
UK researchers James et al (1997) summarise Australian jurisdictions' move to privatisation of corrections in the following terms:
problems of finance ..., increasing prisoner populations (largely as a result of 'Truth in sentencing' legislation), the management of politically recalcitrant prison staff, the search for more effective prisoner programmes and anxieties caused to governments by increasing court intervention, combined together to produce a receptiveness to the idea of exploring the possibilities .. of privatization (1997, 11-12)
In Victoria the New Prisons Project in the Department of Justice embodied the government's reform agenda for corrections, based on reducing costs to government, passing on risk, and increasing efficiency through competition (for example, through reduced/ cheaper staffing91).
The NPP commenced in January 1994, with advertisements calling for expressions of interest, and then for tenders, to finance, build and operate three new prisons. The government's objectives, specified in the Project Briefs for each project were to:
* Replace inadequate and ageing plant at Pentridge Prison, the Metropolitan Reception Prison and Fairlea Prison with new facilities and increase the capacity of correctional facilities to meet projected demand;
* Reduce the cost to Government to below established benchmark costs of providing correctional services;
* Ensure the scope and quality of services to prisoners is maintained and/or enhanced;
* Meet Government policy objectives of private sector involvement in prison operations with consequential transfer of risk to the private sector;
* Establish competition among private and public sector providers of correctional services;
* Retain ability to test the competitiveness of the contracted provider from time to time;
* Introduce private sector investment funds (equity) into Victorian prison infrastructure; and
* Introduce new approaches to the design, construction and management of prisons.92
The Departmental Secretary stated that
.. the new prisons, just as with public prisons, will be open to clear, independent public scrutiny through the Official Visitors Scheme, the Ombudsman and the application of Freedom of Information legislation.
Other accountability mechanisms would include: market test contracts every three years (after an initial five year period); facilities, programs and service standards in the contracts which were performance based and could result in a contract not being renewed if standards were not met; penalties could be imposed for minor infringements and the Government could step in and take over in the event of a major breakdown in contract management. There would be rigorous probity guidelines to ensure that the highest standards of integrity applied to the prison contractors and sub-contractors.93
The essentially ideological basis for these corrections reforms is indicated the comment of the Russell Report, the Audit Review of Government Contracts (2000) that it
...has found no evidence that the previous Government undertook a detailed evaluative study of whether a BOO model of private provision of prison services was the most appropriate model of prison services. ... the Review recommends that, when a new prison is built in Victoria, a detailed evaluation of private versus public provision be undertaken. ... By undertaking such an assessment, the Government's decision-making processes will be more transparent, and a choice between one form of service delivery over another will be seen to be an informed one. (vol 2, p42)
James et al commented that,
A particularly striking feature of the Australian experience to date has been the speed with which privately managed prisons have been introduced in so many states - despite the climate of at times quite hostile criticism - resulting in the highest proportion in any country of prisoners held in establishments managed by the private sector. (1997, 17)
They analysed the hurried privatisation in Australia as driven by chronic staff problems and longstanding criticisms of the public system (1997, 17). At the same time they noted the public criticism of the speed with which privatisation was pursued, issues including the lack of scrutiny of the US firms tendering, and concerns about Australia being again colonised (1997, 17-18). 94
There are continuing debates around fundamental questions to do with the privatisation of corrections
(1): the threshold question - should it happen at all?
The central moral issues surrounding private prisons and jail management have little to do with the profit motive of the privatizers and much to do with the propriety, in a constitutional democracy, of delegating the authority to administer criminal justice to nonpublic individuals and groups (DiIulio, in McDonald (ed) 1990; 177)
To offer a brief summary of this important and controversial debate, opponents of privatisation argue (inter alia) that punishment is a fundamental state power, carried out by government on behalf of the community; that such a central and significant power should be exercised in the public interest and not on a profit basis; and that contracting out of key government functions leads to loss of accountability. It is also pointed out that prison management includes the exercise of disciplinary powers and that it is inappropriate for a private company to hold such power.95
Writers point to the notion of sovereignty, as referring not only to the exercise of authority - eg to imprison - but also an obligation to exercise authority within the limits of the government's grant.96 Moyle states:
It should be emphasised that prison regimes, and the powers exercised by those who manage them, involve a continuation of sovereign power. It may be that this power is first exercised by the courts when a sentence is passed, but this does not necessarily mean that it ends there. ... Determining how far to delegate the exercise of the state's power to remove liberty, against the contractual rights of private companies which provide custodial services, is a central issue in debates about the relationship between the allocation and the administration of punishment' (2000, 156)
There is a concern that private operators will allow economic pressures to outweigh responsibilities to prisoners; given the global nature of the key correctional corporations, there is also fear that they may exert influence on government correctional policy in favour of increased prison populations and longer prison sentences.97
George and Lazarus (1995) cite a 1994 OECD report on prison privatisation which concluded that private sector involvement in prison construction could be beneficial but not private management, given the 'conflict between the profit motives of the companies and the social objectives of government which are virtually impossible to reconcile in a contract.'98
Proponents of privatisation argue that there is no inherent contradiction in having state powers carried out by private companies; that issues of efficiency and effectiveness are key considerations in the community interest, and may in some situations be better served by private organisations; and that the state would always maintain overall control, and can and should ensure appropriate accountability and monitoring mechanisms are in place.99 It is also argued that having some private providers will operate to stimulate change across the prison system.100
A further argument is that it is possible to separate the allocation of punishment - clearly a state obligation - from the administration of punishment. The state continues to allocate punishment for breaches of the law through the open processes of the criminal trial, whilst the administration of the allocated punishment might be carried out by a contractor to the state. Internal disciplinary functions highlight the difficulty with this distinction. Whilst sanctions in Victoria cannot extend to directly increasing the length of time in custody, they can include withdrawal of privileges and imposition of fines (Corrections Act (Vic) 1986 Part 7). Disciplinary powers pervade the life of the prison; the available penalties can have a substantial impact on the effective sentence served - for instance in relation to applications for parole - and can make the period in custody more severe, with the loss of privileges and the possibility of separating prisoners for extended periods.101
The impropriety of delegating these functions to private contractors was argued by several speakers in the Victorian parliamentary debates on the amendments to the Corrections Act.102 In the UK disciplinary functions have been retained in the hands of the state, in order to maintain the distinction between allocation and administration of punishment.

(2): does privatisation of corrections 'work'?
This of course begs the question of what privatisation of corrections is expected to achieve. There may be very different criteria of the expectations and outcomes of a privatised - and indeed of a state-run - correctional system.
Discussion has tended to differentiate economic/ financial from non-economic/ intangible outcomes.
1. economic claims for privatisation are very difficult either to substantiate or refute. Whilst studies in some countries of some prisons indicate cost savings from private prisons - eg from reduced staffing and other 'efficiencies' - other studies show little or no difference.103 It has been difficult to make valid comparisons. In the US, for instance, private providers have generally operated the easier and less risky prisons, leaving the more difficult and expensive prisons to the public sector. In other jurisdictions financial information has been difficult to obtain on the basis of confidentiality of commercial operations or because the costing of public sector prison operations has been difficult to separate out, given cross-subsidisation. In its recent Victorian inquiry, the Audit Review of Government Contracts (Russell Report, 2000) found that direct costs per prisoner had initially been higher in private prisons ($64,700 per prisoner in 1996/7) than in public prisons ($49,800 per prisoner in 1996/7) but by 1998/9 were similar across the system ($49,800 in private prisons; $48,200 in public prisons). However it pointed out that 'open' prisons - only run in the public sector - are generally less expensive to run than secure prisons and would push down the overall cost for public facilities (Russell Report, 2000, vol 2, 19).104
2. Other practical benefits of competition: again the few comparative studies reach different conclusions, depending on the aspects of prison life being examined.105 Richard Harding (1997) is an influential proponent of the view that having some private providers stimulates public sector prison management to improve. He points to the 'cross-fertilisation' of competitive ethos and managerialist techniques from private to public sectors. In Harding (1999) he draws on the WA experience to illustrates ways in which 'privatisation may become a lever for prison reform' (1999, 117). In WA this included establishment of an autonomous Inspectorate, direct reporting to Parliament, and the establishment of systems for dealing with prisoner complaints, and the development of transparent standards and contracts.
In the case of WA one can say with absolute certainty that these new mechanisms to facilitate reform would not have been put in place [without the catalyst of privatisation]' (1999, 117).
Harding has also reported that on the whole, prisoners tended to prefer the private prisons.106

A major Government objective of privatisation was transfer of risk to the private sector. The Russell Report concluded that this had largely been achieved.107 The Report pointed out however that some risks could not be transferred:
For example, the Secretary of the DOJ has statutory custodial responsibility, which cannot be transferred to a private operator. Even though prison provision can be contracted out, the ultimate responsibility for prisoners must always rest with Government... There are certain basic responsibilities that are non-delegable in relation to which the concept of risk transfer is inappropriate (p.16).108
The main risks to Government were likely to be poor performance and financial failure. These were addressed in the contracts by performance-linked fees, and the power to issue default notices and to withhold various service fees. It was noted that the Government would also have the general right to sue in damages. However
... [b]ecause the Agreements involve the provision of services to prisoners, the State may suffer no measurable loss if the services are not performed satisfactorily. Instead, much attention is given in the Agreements to adjusting payments in the event of poor service (Russell Report, vol 2, 17).

The Russell Report - with terms of reference emphasising consideration of probity and disclosure in government contracts, and 'the extent to which the Victorian public benefited from these contracts and undertakings in both financial and non-financial terms' - concluded that the contractual arrangements had provided cost savings in the construction of the three new prisons and that competitive pressure had been placed on public providers leading to improved performance. Clearer performance measures (the SDOs) had been established, and risk had been transferred to the private sector.109 Of concern was the lack of prior evaluation of the contracting methodology, fragmentation of service delivery due to competition, problems with the rapid transition to private facilities, inadequacies in the SDOs, and problems with the structure of performance linked fees and their reliance on self-reporting by providers. Inadequacies in staff training in private prisons was also identified as warranting further investigation. The Report also recommended that the role of the CSC be strengthened and that it become a statutory appointment reporting to Parliament.

Implications of privatisation for international human rights
Who has responsibility for prisoners' human rights?
In international law, the parties to treaties are the states. What happens when states devolve significant powers to private providers? How are the international treaty obligations enforced?
One approach is to require States to fulfil their treaty obligations by appropriate oversight and regulation of contracts, especially in relation to vulnerable groups for whom it retains responsibility.110
As noted, international and domestic Standards are included in private prison contracts, to be taken into account. It is not clear, however, that they thereby give rise to enforceable rights or become terms of the contract.
How can the state's obligations be enforced?
Two illustrations will be discussed here. Responsibility was allocated in part to the state where the design and management of the private prison was not satisfactory, in Victorian coronial inquiries. In another case, however, poor industrial practices and inadequate staffing levels on the part of a private provider were not regarded as raising questions of negligence on the part of the regulating state.111
(a) Victorian coronial inquiries
In the early days of privatisation in Victoria (ie mid-1990s) there were many indications that private prisons had problems. Port Phillip Prison opened in September 1997 with accommodation for 600 male prisoners, both remand and convicted.
The transition to private provision was carried out very rapidly, and the new prison staff were recruited from outside the prison system without experience of corrections, and given limited training. During the first five months of operation there were seven deaths at the prison; there were over 100 'incidents' or death or self-harm in the first six month period.112 Given these indicators of the breakdown of prison management, Harding (1998) observes that the serious riots in March 1998 - when a fire was started, and prisoners barricaded themselves in a unit - were 'perhaps inevitable'.
The Johnstone coronial inquiry was critical of the cell design, which allowed obvious hanging points to remain despite the inclusion of Suicide and Self-Harm issues in the Tender Brief, despite the hanging points being pointed out before the prison opened,113 and despite the findings of the earlier Kirby inquiry on suicide prevention in prisons.
The Johnstone coronial inquiry concluded that the state contributed to four of the five deaths investigated, all four of which were deaths by hanging. In each of those four cases the Coroner emphasised the responsibility of the state to ensure prisoner safety:
- The 1991 Royal Commission into Aboriginal Deaths in Custody effectively recommended that cells be designed to minimise hanging points...
- In spite of [these] recommendations the Victorian Government (by its agent the Department of Justice), when it set the standard for the design and construction of Port Phillip Prison did not require hanging points to be minimised... The [cells] were constructed with hanging points, namely shower posts and/or shower rails and exposed bars on the windows...
- Group 4, an experienced prison operator, was warned about the hanging points in the mainstream cells prior to the prison opening. It did nothing to ensure that the handing points were removed...
- Hanging is the most common mechanism for suicide in prison. A large percentage of the prison population is, from time to time, at risk of suicide. Also suicide is difficult to predict and prevent.
- ...
- The Victorian Government (by its agent the Department of Justice) had a responsibility to ensure that prisoners in the custody of agencies such as Group 4 were held in a safe environment considering the nature of the prison population and its known risk factors.
- Group 4 Correction Services Pty Ltd had a responsibility to ensure that prisoners held in its custody were held in a safe environment considering the nature of the prison population and its known risk factors.

The Victorian Correctional Services Task Force Review of Suicides and Self Harm in Victorian Prisons was critical of Port Phillip management in this early period.
Port Phillip Prison (PPP) opened with a staff inexperienced in correctional work. They were provided with six weeks' training and preparation in correctional matters. It was a deliberate policy by the operator to recruit staff new to the correctional system and this was intended to develop a culture within the prison that would be untainted by the culture of other prisons. This policy had been successful overseas in the establishment of private prisons. (p.104)
The Director and some senior staff were however experienced:
The kinds of problems that could arise in those early months were not predictable, but there was an obligation on [Group 4] and the Victorian Government to ensure that when any problem arose, prompt action was taken to avoid it happening again... (p.105)
Nonetheless, 'failings that occurred in the events surrounding [the first death in custody] were repeated in subsequent cases' (p.105). The Task Force quoted a September 1998 audit by Pricewaterhouse Coopers which concluded that there were
'Significant shortcomings' relating to the control of prisoner self harm which included:
* inadequate training of Prison officers
* a lack of appreciation by prison officers of the importance of key procedures
* a lack of supervision and quality control of these procedures (Task Force p.108)

A problem with privatisation and the multi-provider system in general has been the fragmentation of the system, and the breakdown in communication between parts of the system through which the prisoner moves. This was tragically illustrated in the coronial inquiries, where it was shown that information (eg of the prisoner's suicidality or general vulnerability) in one part of the system was not necessarily known or transferred when the prisoner was transferred, that files were incomplete and even lost, and that checks intended to ensure protection were not always effective.114
Coroner Johnstone observed
The fragmented nature of the prison system in Victoria (with a number of private providers recently entering the scene) creates potential problems for seamless information flow - essential for effective management of at risk prisoners. (p.25)
The Kirby Report stated:
...private sector participation in the Victorian corrections system has added further complications to the building of a seamless arrangement for the care of prisoners and the related communication of their problems, needs and risks (200, 128).
The Auditor-General in his 1999 Report no. 60 on Victoria's Prison System drew attention to 'serious deficiencies in the prisoner management process' (p.6), noting serious deficiencies in many prisoner files held at a number of prisons. He also observed that 'the co-ordination of psychiatric services was strained by the multi-provider system' (p.220).115

(b) tort liability
The primary question will be whether the state might be liable in tort for failure to carry out its regulatory obligations. A case which raises this issue tangentially is Jarvis v ACM.116 A prison officer brought a negligence action against ACM, the private contractor, when he developed a stress disorder after working at the prison. There was evidence of inadequate training of staff, and inadequate lines of authority and support, especially when dealing with crises such as attempted suicides. Understaffing led to working in isolation, working double shifts, and the lack of access to supervision. Security equipment was faulty and disciplinary actions were unsupported. Whilst the private contractor was found to have been negligent, Moyle (1998b) argues that the court should then have considered the legal arrangements between ACM and the state regulator, as it clearly had not monitored ACM's non-compliance with the mandatory standards. Whilst the case involved breach of duty owed to the employee, it is clear that the standards at issue closely affect prisoners' lives.
A private provider will clearly be liable for breach of their duty of care, just as a public provider is.117 Tort liability may be, however, of limited usefulness in individual cases, coming after the event and with limited remedies. Remedies are only available for loss or damage, not for poor service quality, which may be at issue in prison cases.118 Private litigation is also costly and likely to provide very delayed results.

The impact on other human rights: prison labour as forced labour?
Historically, as noted earlier, prisons have been sources of cheap and unprotected labour for private operators: 'convict leasing' arrangements were widespread in 18th and 19th century US, as was the private hiring of convicts in Australia upon transportation.119
Through the twentieth century, public sector prisons generally aimed to provide work which did not compete with outside employment.120 More recently prisons have aimed to develop 'real' work options.121
Prisoners in all Victorian prisons are now required to work unless engaged in full time education or for medical reasons (see Corrections Act s.84H). The UN SMRs also state that sentenced prisoners should be required to work (para 71). Refusal to work is a disciplinary offence. Prison industry is primarily manufacture of import-replacement products (such as outdoor and hospital furniture, and electrical parts) and service work for the prison institution such as kitchen, laundry and gardening.122
Wage rates are from $8.25 to $5.50 per day depending on the level of skill and responsibility.
Goals of prison industry include providing useful activities for prisoners, development of inmate skills and enhancement of post-release opportunities, and contribution to the running of the prison. Appropriate work and training are clearly of potential importance in preparing the prisoner for release and providing fulfilling activity for the time in prison. (Harding 1999, 116) Prison industry does not, however, always meet this objective; appropriate contracts must be found for outside work, whilst prison service work may provide little training or challenge. Further, prisoners move around the prison system frequently, and may have limited pre-existing skills and education.123
These are issues for all prisons. Private prisons - operated for profit - have also given rise to additional issues. There is considerable evidence of the exploitation of cheap prison labour in US private prisons.124 A Representation was made to the ILO in 1999 that Australia was in breach of Convention 29 (on forced labour) as a result of its private prisons.125 The ILO Convention prohibits forced labour, but provides an exemption for prison labour, being
any work or service ... as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations' (Article 2(2)(c).
It was argued that private prison industry is not carried out 'under the supervision and control of a public authority' and that prisoners are being placed at the disposal of private companies. The Victorian government's response included the arguments that 'legal custody' of prisoners is not transferred to the private prison providers; that all Victorian prisoners are supervised by public authority, given the statutory and contractual arrangements in place, and that their industry does not entail contracting with private companies. The government also pointed out that any surplus from prison industries is to be held in a separate account, requiring government approval for disbursement for prison improvements; further, that prison industry does not usually make a profit.126 These arguments have not been accepted by the Committee of Experts, and debate continues.127
Harding argues that the ILO complaint is technical rather than substantive and aimed at private operators, whilst the issues apply across the board to public prisons too. He notes, however, that privatisation has highlighted issues which need resolution, regarding 'types of work, wage rates, rostering arrangements, contract structures, informal or formal rewards for participation, and so on' (1999, 117).

Implications for domestic enforcement of rights
Judicial Review
Theoretically at least, failure to provide public services may attract public law remedies - judicial review of statutory obligations, access to the Ombudsmen and FoI regimes, and public and parliamentary scrutiny through annual reporting requirements, publication of accounts, and ministerial responsibility.
It has been pointed out above that the Australian courts have traditionally been reluctant to find enforceable rights in prisoners, where judicial review applications have been brought. It has also been noted that statutory obligations and rights in relation to prisoners tend to be expressed in general or qualified terms, which would make it difficult to argue that there has been a breach.
A further issue which arises in relation to private prisons is whether the operator will automatically be susceptible to judicial review remedies upon breach of a statutory duty. In Victoria, certiorari was granted in relation to an internal disciplinary hearing at a private prison, the procedures of which are set out in detail in the Corrections Act and Regulations.128 Davies (1998), however, suggests that mandamus, an order that an official or agency perform their statutory duty according to law, may not necessarily be available against a private prison operator.129
Mandamus lies against a public official. It could be held that the private prison operator is merely in a contractual relationship with the government and not a 'public official'. There is authority to the effect that the question is whether the duty itself is a public duty, in which case a remedy will be available.130 However it is also clear that duties which originate solely from contract are private duties and not susceptible to mandamus.131 If it were held that the source of the private prison operator's powers and duties arose from contract rather from the legislation, it might not be possible to use judicial review to enforce statutory obligations.132

Access to information about prison management and contracts
The UN Standard Minimum Rules require access to information for, and complaints by, prisoners. Victorian prisons' Operating Manuals include requirements for provision of information to prisoners, and for the establishment of grievance procedures.
For example, CCA's operating policy included chapter 14 on 'Prisoner Rights', with provisions for 'Communication of information to prisoners', and the requirement to make available the Prisoner Information Handbook at reception and to publish notice for prisoner information. The policy also included provisions on 'Legal Rights of Prisoners' - that prisoners were to have access to paper and other supplies and services to contact legal counsel regarding legal matters, and for contacting Ombudsman, OCSC, and Official Visitor.

(a) Freedom of Information: FoI legislation has been specifically extended to the private prison providers (Corrections Act s. 9F).
Claims to commercial confidentiality have, however, been a significant impediment to access to certain information about prison operations, such as the contracts, the monitoring reports provided by private prisons, and financial details of private contracts.133
The prison contracts were initially released, only in edited form, in 1997. Financial and other details were deleted. In 1999 Victorian Community Legal Services successfully obtained the release of virtually all of the deleted information under Freedom of Information legislation.134 The monthly monitoring reports have also been released after FoI applications. Ultimately the case pitted the Legal Service against the State government; the provider was in fact less concerned to protect the confidentiality of the information than the government. Harding (1999, 114) notes that the case revealed that 'the cry of "commercial-in-confidence" is more aptly described as "government-in-confidence"'.
Aside from concerns that release of information would disadvantage contractors vis a vis competitors, when re-tendering - arguments which were rejected by VCAT - there was concern that, with information about SDO benchmarks, prisoners could take actions to manipulate performance levels. This had not, however, occurred.135
The Auditor-General (1999) also noted the initial paucity of information provided by the Department, and the OCSC, in the Department's post-privatisation annual reports.136 The OCSC has since produced two issues of a statistical overview of the prison system which provides considerable detailed non-financial performance data.137

(b) Access to the Ombudsman (in relation to resolution of complaints, if not of information problems) has also been extended to inmates of private prisons: Corrections Act s.9G. As noted earlier, complaints from the general prison system (public and private) comprise the single largest category of complaints.
Complaints relating to health services can be made to the Health Services Commissioner. The Official Visitor program also applies to both public and private sector prisons.

Enforcing prison contracts
(a) Direct enforcement of contracts
The contract for provision of correctional services is between the private company and the state government. The doctrine of privity of contract precludes prisoners from litigating breaches of the contract. It is assumed that the government would have an interest in pursuing breaches but this will not necessarily be the case. Performance of contractual obligations is usually enforced through adjustments to performance linked fees, and failure to fulfil contractual obligations may be resolved by the parties to the contract through reduced fees. This may - and is obviously intended to - provide an incentive to the private provider to improve their compliance.138 It does not, however, necessarily provide a satisfactory resolution for a prisoner whose rights have been adversely affected.
It would be possible to extend by statute the rights of third parties to enforce the contract. There have also been judicial moves in this direction in other areas.139 This approach was not supported by the ARC, in its report on contracting out of government services. In any event, it is likely that direct enforcement of a contract would be difficult in relation to 'rights' which are expressed very generally, as discussed earlier; further, prisoner concerns will not necessarily be readily remedied by monetary damages.140

(b) Contractual provisions for monitoring and enforcement
This is, in practice, the key to maintaining protections for prisoners under private contracts. In Victoria and elsewhere the main avenues for enforcement of prison contracts are reporting and monitoring requirements, penalties and fees, default notices, and ultimately termination of the contract.141
Harding (1999) advocates permanent on-site monitoring, by a 'representative of the "purchaser"' (111) as occurs in the UK:
If one's working assumption is that there will be shilly-shallying by private operators if they can get away with it, then a system of clear contract specification, financial sanctions and effective oversight is the answer. (1999, 111)

Termination of a contract for failure to comply with its terms is generally seen as a remedy of last resort, given the implications for the (disruption of) prison management, potential claims for compensation from the terminated party, etc. It cannot be seen as a realistic remedy for individual breaches or prisoner complaints.
In Victoria, however, CCA's contract for the main women's prison (MWCC) was terminated in 2000 following a damning report from the CSC. This case will be discussed more fully, as an important illustration of available contractual remedies.
There had been many criticisms of MWCC for the four years of its operation. For example, it had exceptionally high levels of self-harm, and of assaults between prisoners.142 The monthly monitoring reports showed consistent failures to comply with the contract and poor performance against the Service Delivery Outcomes. Sanctions were imposed by two external regulatory bodies in 2000. The Victorian Workcover Authority issued a Prohibition Notice and Improvement Notices against MWCC in May, and the Office of Post Compulsory Education, Training and Employment suspended CCA's registration as a Registered Training Organisation for one month in January.143 The provision of health services in the prison was disrupted and the health service failed to achieve accreditation, the Dept of Human Services, in August 2000, identifying significant problems potentially compromising the health of women in the prison.144
As set out in the CSC's report to Parliament of 13 September 2000, there were serious disturbances in August and October 1999 involving assaults on staff, prisoners barricading themselves into the protection unit, and the use of CS gas to control the disturbance.145 Default Notices were issued on 10th and 19th May 2000, both following serious security breaches. Prisoners' fears for their own safety led to increasing numbers of prisoners being classified as Protection Prisoners, with up to 29% being held in an overcrowded protection unit with limited access to work, programs, education and recreation.146
The prison's performance against Service Delivery Outcomes in 1999-2000 was the worst for the four years of its operation, and included high levels of attempted suicide and self-mutilation;147 high levels of prisoner assaults on staff148 and on other prisoners,149 and an illicit drug rate of 8.57%, above that of the benchmark of 8.26%.
The CSC identified major factors in the prison's problems to be:
- Inconsistent management practices and poor leadership ...
- Lack of operational procedures, guidelines and on the job support and training for staff;
- Staff shortages and budget constraints...
- Poor prison design.150
In July 2000 a third Default Notice was issued, and CCA provided a 'cure plan' to resolve the issues. Monitors from the OCSC worked on site to assess compliance through August and September 2000. An area of particular concern was staff shortages, leading to 'lockdowns' of the prison such that prisoners were not able to spend the required 12 hours/day out of their cells, nor to complete educational, treatment or other programs or work requirements.151 The CSC identified a general problem of CCA imposing 'budget constraints' (ie cost cutting).152
Following the third Default Notice and subsequent monitoring of compliance, the CSC concluded that CCA continued in default in 5 key areas:
- containment and supervision of prisoners at risk
- provision of adequate staffing to ensure close prisoner surveillance and maintenance of security/safety of staff and prisoners;
- breach of prison management specifications due to lockdown;
- management of programs and security procedures for illicit drugs;
- provision of sufficient security systems to ensure security and safety of prisoners and staff.153
The contract was terminated in September 2000, and the management of the prison taken over by CORE.

Contracting for performance
The Auditor-General, and the Russell Report were critical of the limited form of SDOs, with their quantitative rather than qualitative focus. The Auditor-General (1999) commented on the need for service delivery outcomes which dealt not only with quantitative outcomes but
Key areas of qualitative performance such as the results of prisoner rehabilitation programs and the quality of staff training. (p.5)
The Russell Report observed that
The strength of qualitative measure is that they result in measurable outcomes. The Review notes that it is very difficult, if not impracticable, to enforce adherence to qualitative outcomes in a contractual agreement. This is a major problem inherent in using contract as the preferred method of service delivery. (at 21)
The operation of the SDOs in determining the payment of the PLF has also been criticised. SDOs are grouped into five categories, as noted earlier. Where some SDOs in a category have not been achieved at a satisfactory standard, it is nevertheless possible for the full fee to be paid - eg where one SDO not been fully achieved, but achieved to a level of at least 80%, the full fee for that category is payable.154 Despite the documented problems at the private prisons, there had been few reductions in the PLF.155 The Russell Report also queried the omission of numbers of non-natural deaths in custody from the SDO.156
There is a growing body of writing, including recent government inquiries, evaluating the strengths and weaknesses of contracts as a method of prison management, the operation of forms of explicit standards such as the Victorian SDOs, the inclusion of economic incentives and penalties, and the current systems of monitoring and supervision.157

Can privatisation offer new rights protections?
This is a complex question; a few points will be made here.
Public correctional regimes have of course had major deficiencies The finding of 'rightlessness' and disempowerment noted by Hawking (1986) is a general observation. Privatisation in Victoria and elsewhere has been accompanied by a heightened focus on establishing accountability mechanisms - contract monitoring, reporting mechanisms, articulation and transparency of standards.
Whilst it is not clear that these have given rise to rights which would be specifically enforceable by prisoners (and present inadequacies remain to be addressed) improved accountability and monitoring are undoubtedly important and valuable developments. Private prisons, newly constructed, have offered significant improvements in physical prison environment, and in potential for treatment, education and programs. Prisoners have reported improved relations with prison officers, and more humane treatment, in some private prisons.158
Such improvements are not, however, peculiar to privatisation - they could be introduced in an entirely public system. On the other hand, it can be pointed out that they rarely have arisen in the public systems to date, and may be seen as benefits arising with privatisation, or inspired by privatisation.
Richard Harding, since August 2000 the WA Inspector of Custodial Services, is a pragmatic supporter of privatisation. He endorses the pro-privatisation argument based on cross-fertilization: that the private sector provides a lever or catalyst for change across the prison system (1997, 1999).
UK researchers Bottomley and James (1997) suggest that it is not always clear whether private sector involvement has produced particular improvements; '[t]he extent to which privatisation contributed independently to the changes that occurred is very difficult indeed to assess' (1997, 270)
It may however be that improved management and accountability processes were being developed independently, with trends within government to corporatisation and competitive tendering. James et al, in their major evaluation of the first UK private prison, the Wolds, and comparison with a similar public prison, observed that
The achievements of Group 4 at the Wolds cannot be denied... most prisoners recognized the quality of what was offered at the Wolds and rated staff there rather more highly than those in the public sector. .. [but] it must be repeated that similar and, some might argue, better achievements are to be found in some new public-sector local prisons, showing that the private sector has no exclusive claim on innovation or ability to deliver high-quality regimes to prisoners. There is, therefore, little evidence that Wolds' achievements were directly or exclusively related to its contracted-out status' (1997, 136-7)
Moyle (1998) proposes that competition is the key factor, rather than the presence of the private sector as such.159 He also observes that the private sector will not always be the initiator of higher standards, but has lagged behind the public sector in some areas, drawing on his evaluation of the Queensland prison system. Moyle concludes that 'adequate regulatory models and ongoing accountability ... are pre-requisites for genuine competition, not the involvement of the private sector per se' (1998, 93).

Concluding comments
I return to Hawkins' conclusion that prisoners are 'probably the most rightless group' in the population. Privatisation raises new - and different - issues, but the fundamental issues of prisoner rights, prison management and prison legitimacy remain.
George and Lazarus observe that:
By privatising prisons the government is wanting to distance itself from the day to day responsibility for the infliction of pain that is a part of everyday prison life (1995, 153)
There is a risk that, as the UK Prison Reform Trust comments on its website,
... arguments about privatisation hi-jack[ed] the wider debate about whether prison works.
Continuing analysis, evaluation, and monitoring of private prisons - by the state and by the community - is essential, as is working to improve the current regulatory mechanisms. We must not lose sight, however, of the importance of establishing and protecting the human rights of prisoners, wherever incarcerated.

_________
With many thanks to Anne McCasland-Pexton and Amanda Llewellyn for invaluable research assistance.

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1 Enquiries may be addressed to the author: bronwyn.naylor@law.monash.edu.au.
2 Pentridge, Fairlea, Sale, Morwell River and Metropolitan Reception Prison.
3 MWCC, Fulham and Port Phillip.
4 CCA is jointly owned by Wormald Security, John Holland Holdings, and Corrections Corporation of America: Moyle, 2000, 47.
5 The Corrections Act 1986, as amended in 1994, provided for a Correctional Services Commissioner to oversee correctional operations; the Office of the Correctional Services Commissioner was established in July 1995: see Auditor-General, 1999, para 2.14-2.15.
6 See 'Labor to abolish private prisons' Age 2 November 1999.
7 Dept of Justice, Correctional Services Commissioner's Report on MWCC's Compliance with its Contractual Obligations and Prison Services Agreement PP40/1999-2000, September 2000. The Minister stated in a press release that 'The cost to government of $20.2m for ending the agreement and buying the facility is less than the value of ongoing payments for use of the prison had the contract continued ... Government has not paid any compensation to CCA for termination of the agreement'. (Press Release 2 November 2000).
8 OCSC Statistical Profile The Victorian Prison System 1995/1996 to 1999/2000 2001, Table 1.
9 Russell Report, vol 2, 5.
10 OSCS Statistical Profile 2001, Table 1.
11 OSCS Statistical Profile 2001, Table 1.
12 See Moyle, 2000, 17-19.
13 See Moyle, 2000, 13.
14 Moyle, 2000. 13.
15 Harding, 1999, 115.
16 Prison Reform Trust website: www.prisonreformtrust.org.uk/current9.html
17 See James et al, 1997, 10ff; Moyle, 2000, 45.
18 White, 2001; James et al, 1997, ch.1.
19 See Evatt 2000 for details of how to make a complaint.
20 Also potentially relevant are articles 6, 8, 9 and 17: see Evatt 2000; Joseph et al.
21 See Joseph et al 140-148.
22 Cited from Evatt 2000. And see Joseph et al.
23 See eg Joseph et al 152ff
24 General comment 20; see Joseph et al 173.
25 see Joseph et al 155ff: HRC reluctant to find breach but in some severe cases has agreed; cf Eur.Crt Human Rights which accepts the inhuman and degrading nature of the death row phenomenon: p.155.
26 See also Cabal [2000] FCA 1227; application for leave to appeal to HCA refused 28/11/2000.
27 The Auditor-General (1999) noted that this practice 'is not consistent with the Standard Guidelines for Corrections' (para 6.90), highlighting also problems with the practice of automatically classifying remand prisoners as maximum security.
28 See Collins v State of SA (1999) 74 SASR 200.
29 WA Watch Committee, 2000, 83.
30 Orr, 1998, 66.
31 Orr, 1998, 66; Australian Law Reform Commission, 1980, 173.
32 Orr, 1998, 66. Australian prisoners convicted of serious offences are precluded from voting under Commonwealth law; all states except South Australia similarly restrict voting rights under state law: Orr, 1998, 57-61. Orr argues that the removal of prisoners' voting rights is contrary to the ICCPR; it may also be a breach of Australian anti-discrimination laws.
33 Raymond v Honey [1983] 1 AC 1, 10.
34 Dugan v Mirror Newspapers (1979) 142 CLR 583: Dugan was a prisoner, who commenced defamation action against Mirror Newspapers. Mirror Newspapers pleaded the fact of his convictions. HCA confirmed that a prisoner with a commuted death sentence (as here) 'suffered attainder which prevented him from suing' and that 'a person convicted of felony was incapable of suing until he obtained a pardon or his term of imprisonment expired' (584).
35 On the restriction of prisoners' access to media, see George and Lazarus, 1995, 162.
36 See Groves, 2001 for summary and discussion; WA Watch Committee, 2000, 84.
37 Millhouse J in recent case of Collins v SA (1999) 74 SASR 200, 208 accepted Standard Minimum Rules had no legal force in SA.
38 Groves, 2001; see also ALRC (1980) indicating that reports by Australia to the UN suggesting high levels of compliance with the rules in fact showed significant deficiencies in some areas: 148-9.
39 Joseph et al 190.
40 WA Watch Committee, 2000, 85.
41 Preface para 4.
42 Correctional Administrators Conference Working Party to Review the SGC: Terms of Reference 19 September 2000.
43 Preface para 7.
44 There is a similar statement of rights in the Tasmanian Corrections Act 1997 s.29.
45 Henderson v Beltracki [sic] transcript 24 February 1999 - discussed in the context of an (unsuccessful) argument that the Victorian Prisons Drug Strategy breaches the Corrections Act in that it provides for automatic loss of contact visits when a prisoner is detected with a positive urine drug test. See Henderson v Beltracci [1999] VSR 135; (1999) 105 A Crim R 578. The 'right' to visits under s.47(1)(k) is subject to s.37, which requires permission of the Governor, and states that visitors 'may see and speak with the prisoner' but may not touch them unless the visit is part of a specific 'contact visiting programme or residential visiting programme'.
46 Groves notes Minogue's failure so far with actions on international instruments: 2001, 23. See Minogue v Williams (2000) 60 ALD 366, 371: whilst the international law arguments in this case were unsuccessful - see discussion below - the Federal Court accepted that the substantive arguments in respect of s.47 had not been determined.
47 Livingstone and Owen, 1999, 156.
48 See, eg, the Northern Irish case of Re Baker and Others' Applications (1992) 8 NIJB 86 where a strip search of all women prisoners in a jail was upheld, but only as there was evidence that something had been smuggled in and the governor had no information about which particular prisoners were involved... [footnote in original]
49 Unreported, 21 July 1995 [footnote in original].
50 See discussion in Livingstone and Owen, 1999, 156-7.
51 R v Secretary of State for the Home Department, ex p Tremayne unreported, 2 May 1996: cited in Livingstone and Owen, 1999, 158. The case referred to articles 6 and 8 of the European Convention on Human Rights.
52 The Auditor-General (May 1999) was critical of the range of areas against which performance is measured, the focus on quantitative measures, the scope for manipulation by contractors in completing their audits of measurable outcomes, and the unwillingness up to that point of the government to penalise or reduce PLFs in the face of patent management failures.
53 Russell Report, 2000, vol 2, 20. PLF payments are set out in Attachment 1 to vol 2 of the Report; the non-financial performance of the private prisons is summarised in Attachment 5 to vol 2 of the Report. These fees were initially deleted from the prison contracts when made available under FoI, but are now available.
54 Auditor-General, 1999, para 7.21ff
55 See for example the recommendations of the Coroner's Report on Deaths in Custody at Port Phillip Prison (April 2000) emphasising the importance of establishing standardised guidelines as to use and transfer of medical records (rec. 4), as to setting up independent ongoing reviews of incidents of suicide / self-harm (rec. 5), as to delivery of drugs (rec. 6) and as to design guidelines aimed at eliminating 'obvious' hanging points (rec. 7). See also recommendations of the Review of Suicides and Self-Harm in Victorian Prisons as to the setting of standards by the CSC.
56 Minogue v Williams [1999] FCA 1585; 28 October 1999, 18 November 1999; confirmed on appeal in Minogue v Williams [2000] FCA 125; 60 ALD 366; 17 Feb 2000.
57 It was also argued that rights under s.47 were unenforceable, and therefore the applicant had no other avenues of redress.
58 Dietrich (1992) 177 CLR 292; per Mason CJ and McHugh J 'Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed' (305); Teoh (1995) 183 CLR 273 'a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law' (Mason CJ and Deane J, 287)
59 For example: 'The ICCPR is now contained in Sch 2 of the HREOC Act. While the Act confers power on the Human Rights and Equal Opportunity Commission to investigate and conciliate alleged breaches of rights contained in the ICCPR, it does not create justiciable rights for individuals' (Dietrich (1991) 177 CLR 292, Toohey J at 359-60)
60 The applicant appeared in person, and was initially ordered to pay the respondent's costs. This claim was later abandoned: see appeal below 60 ALD 366, 371. See also Minogue (2000).
61 Flynn v R (1949) 79 CLR 1; Groves 2001, 19.
62 See Binse v Williams [1998] 1 VR 381: Groves, 2001, 20.
63 Collins v State of SA (1999) 74 SASR 200.
64 Collins v State of SA (1999) 74 SASR 200, 209,
65 The court also held Standard Minimum Rules are not binding in Australia. And that in any event the courts cannot grant relief where it would be impossible to provide practical relief - cannot order government to spend money on building more cells or removing all 'doubled cells'.
66 See Teoh (1995) 183 CLR 273.
67 See Evatt 2000 for details of how to make a complaint.
68 Charlesworth, 1991, 428-9 argues that Australia was slow to sign the 1st Optional Protocal because some states and territories were concerned about 'international scrutiny of particular human rights issues in their jurisdiction, such as the treatment of prisoners' (1991, 428). See generally Groves, 2001, 40-49.
69 Groves notes the potential for arguments based on the discrimination and equal opportunity provisions of the HREOC Act, which are not subject to this limitation: 2001, 33-35.
70 Minogue v HREOC (1998) 54 ALD 389; appeal (1999) 84 FCR 438.
71 See Minogue (2000).
72 see Auditor-General's comments (1999)
73 Auditor-General, 1999, 93-94. The Russell Report noted that changes had been instigated since that time: p.39.
74 Victorian Ombudsman Act passed in 1973; Cth Ombudsman Act passed 1976 (part of the New Administrative Law package)
75 Ombudsman Act 1973, Corrections Act 1986 s.47(1)(j).
76 comprising 20% of all complaints in that period; down from 771 (27%) in 1998-9 and 787 (27%) in 1997-8 and comparable with the 1996-7 figure of 587 (19%): Ombudsman Victoria Annual Report 27 June 2000, 34.
77 Representing 44% of complaints - interesting given that at that time CORE prisons held 55% of prisoners. Port Phillip (28% of complaints) and MWCC (8% of complaints ) gave rise to a substantially higher proportion of complaints than their relative populations. But note that the private prisons - especially MWCC and Port Phillip - are large, and more complex prisons and likely to have more complaints.
78 Annual Report 27 p.35.
79 Annual Report 27 p.37.
80 See Prisons Ombudsman Annual Report 1999-2000 Cm 4730.
81 See www.homeoffice.gov.uk/hmipris/hmipris.htm. Kirby 2000, 41-2, outlines the operations of HM Inspectorate, and its focus on qualitative service delivery outcomes.
82 See www.custodialinspector.wa.gov.au/
83 See Groves, 2001, 19.
84 Groves, 2001.
85 Donahue 1989 The Privatization Decision: Public Ends, Private Means cited in Chan, 1994, 38.
86 Focussing here on custodial corrections: transport and community corrections may also be privatised: see Moyle, 2000, 27.
87 The Russell Report notes that the model is more accurately one of Build, Own, Operate and Transfer (BOOT), given that the land on which the facilities are built is owned by the Government, such that at the end of the lease the facilities would revert to the Government: Russell Report, vol 2, 8.
88 Russell Report, vol 2, 9.
89 James et al (1997) outline developments in the US, UK, Canada and Australia in chapters 1 and 3; See also Moyle, 2000, 357ff. See also Chan, 1994.
90 See National Competition Policy Report by the Independent Committee of Inquiry (Hilmer Report) Canberra 1993; Hodge, G. A. (2000) Privatisation: An International Review of Performance, Westview Press, Boulder, Colorado.
91 See Baldry in Moyle (ed) 1994, 133; Chan in Moyle (ed) 1994, 49.
92 Brief to Short-Listed Parties to Submit a Firm Offer for the Development, Ownership and Operation of the Rural Men's Prison (originally issued November, 1994, cited when issued as a public document in February 1997) p.12. Identical objectives appeared in the two other Project Briefs.
93 Mr Alan Thompson, Secretary, Dept of Justice, New Prisons Project Bulletin May 1997, p.4.
94 And see Baldry in Moyle (ed) at 128; George 1989; Russell 1997.
95 See Russell Report, vol 2, p.6; Moyle 2000; White 2001.
96 Moyle 2000, ch.6; White 2001.
97 George, 1989; 1997; Russell 1997. It may be noted that the private prison contracts place constraints on the change of policy by government: MWCC contract clause 60, for example, requires the giving of notice of a proposed change of policy, and negotiation as to the consequential costs to the contractor.
98 Havens, Private sector Ownership and Operation of Prisons: An Overview of US Experience, OECD, Paris, May 1994, cited in George and Lazarus, 1995, 166.
99 See summary in Russell Report, vol 2, p.6. Tantalisingly, the frontispiece to the Kirby Report (2000) includes a quote from Deng Ziaoping, 'It doesn't matter if a cat is black or white, as long as it catches mice'.
100 Harding, 1997, 1999.
101 See Groves, 1998, 338.
102 See eg, Victorian Parliamentary Assembly, 7 April 1993, p 810 ff, comments of Mr. Thwaites; Victorian Parliamentary Council, 29 April 1993, p 561 ff comments of Mr. Davidson and Ms McLean (Second Reading Speech of Corrections (Management) Bill 1993).
103 See for example Davies, 1998; Austin and Coventry, 1999, Greene, 1999, Moyle 2000.
104 The Inquiry's more detailed analysis, vol 2 Attachment 4, p.49, shows a trend towards lower costs in the private sector than in the public sector.
105 See for example Greene, 1999; Moyle, 2000.
106 Harding, 1997, 115ff. Prisoners' assessments of public and private prisons are discussed further in James et al, 1997; Moyle 2000.
107 Russell Report, vol 2, 14-16. For example, contractors accepted the risk during the development phase of (eg) cost to complete, industrial disputes, taxation charges, with the Government only retaining risk regarding planning approval, site contamination, and Government-initiated variations. For the operating phase, risks were shared in relation to change of prisoner numbers and mix, and change in operating standards at the Government's request; the contractor accepted all other forms of risk such as maintenance, plant replacement, industrial relations: Russell Report, vol 2, 14.
108 The Report noted that this was a significant factor in how it was to evaluate the 'threshold question' before it - ie 'should the State's punishment and rehabilitation responsibilities be contracted out at all?' p.5.
109 Russell Report, vol 2, pp3-4.
110 Another approach may be to make the private providers (multi national corporations in practice) responsible under international law: see Kamminga.
111 See Moyle, 1998b.
112 Russell Report, vol 2, 24ff discuss these issues of suicide and self-harm under the revealing heading 'Analysis of Non-Financial Performance'.
113 See Deaths in Custody in Port Phillip Prison by Coroner Graeme Johnstone, 27 April 2000; App. 3.
114 See for example Johnstone Coronial Inquiry 2000.
115 Similar comments were made in the Russell Report, vol 2, 14.
116 Unreported: No. 633 of 1994, District Court, Brisbane; discussed in Moyle, 1998b.
117 See discussion in Davies, 1998, 42.
118 See ARC 1998, 21-2.
119 James et al, 1997, ch1; White 2001.
120 Harding, 1999, 116; White 1999.
121 With thanks to Simon Miller for his research on this issue.
122 See CORE 'Made Inside: Prisoner Employment in Victoria's Public Prisons'.
123 See White (1999); Audit Office, NSW 2001.
124 White (1999).
125 ACTU (1999)
126 Outlined in Fenwick, 2001, ch 1 and ch2.
127 See Fenwick, 2001, 27-29.
128 Henderson v Beltracci [1999] VSR 135; (1999) 105 A Crim R 578.
129 In Victoria, one source of judicial review remedy is the Administrative Law Act 1978: availability of remedies under this Act may be limited in private prison cases by the requirements in s.2 that the decision maker be acting 'in a judicial manner to the extent of observing one or more of the rules of natural justice' and that there be a decision 'operating in law [not under contract] to determine a question affecting .. rights'. This would not preclude application for remedies under the Rules of the Supreme Court.
130 R v Panel on Take-overs and Mergers; Ex parte Datafin [1987] 1 QB 815; see discussion Aronson and Dyer, 106. See also Allars, 1995.
131 Aronson and Dyer, 592; and see Davies 1998, 41.
132 See for example ANU v Burns (1982) 43 ALR 25; no remedy was granted on the basis that the action complained of had been taken under contract. But the court commented that if the contract had simply incorporated or restated the legislation the action would have been characterised as being made under an enactment (for the purposes of ADJR Act review). See also Allars, 1995, 57ff.
133 See Freiberg, 1997, 1999.
134 Coburg Brunswick Community Legal and Financial Counselling Centre v Dept of Justice [1999] VCAT 28.
135 Russell Report, vol 2, 36.
136 Auditor-General, 1999, 94.
137 See Statistical Profile of the Victorian Prison System 1995/6- 1999/2000.
138 See discussion below regarding the enforcement of the MWCC contract.
139 See the High Court decision in Trident General Insurance v McNiece Bros Pty Ltd (1988) 165 CLR 107; discussed in Davies, 1998, 42ff.
140 See ARC proposals, 1998.
141 See generally, Harding, 1997, 1999.
142 Russell Report, vol 2, 29.
143 CSC Report, PP no. 40, para 1.1.4.
144 CSC Report para 1.1.5
145 Report para 1.1.1.
146 Report para 1.1.2; the Report notes that the industry norm was around 20% of prisoners held in protection.
147 Report para 1.1.3: levels more than double the benchmark figure - 9.7/100 receptions compared with a benchmark of 3.8.
148 Report para 1.1.3: 19/100 prisoner years compared with a benchmark of 10.
149 Report para 1.1.3: 45.3/100 prisoner years compared with benchmark of 30.
150 Report para 1.2; see summary table in Russell Report, vol 2, 31.
151 For example, during a period of 109 days over May to August there were lockdowns on 53 days of between 1 and 12 hours due to staff shortages: Report para 4.3.
152 Report para 1.2.
153 Report para 3.3.
154 see Russell Report para 3.2.2; Auditor-General, 1999, 152.
155 Russell Report para 3.2.2.
156 Russell Report: 'The Review was advised that the PLF was viewed as providing a return on the equity contributed by investors. The result of this was that investors were, in effect, being docked when performance of the operator was unsatisfactory. This results in investors placing pressure on operators to improve performance. This could be considered an advantage of private provision in this case, but only if the Fee is truly sensitive to changes in performance' (p.24)
157 eg Proposals for a more independent (independently located) Correctional Services Commissioner: Auditor-General (1999); Russell Report, vol 2, 39.
158 See Moyle 2000; James et al, 1997.
159 See also Bottomley and James, 1997, 270-1.