Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
329
National Standards Body to consider laws about the rights of people in prison
That the National Standards Body comprising Ministers responsible for corrections throughout Australia give consideration to the drafting and introduction of legislation embodying the Standard Guidelines and in drafting such legislation give consideration to prisoners' rights contained in Division 4 of the Victorian Corrections Act 1986.
Most aspects of Recommendation 329 no longer apply, or never applied in Victoria, as the recommendation was for other states to follow Victoria’s lead at the time. While the intent of the recommendation remains relevant, state-based action to develop a new legislative framework for the adult corrections system has greater potential to improve Aboriginal justice outcomes in Victoria in the near future.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 329 was to consider prisoners’ rights in the Victorian Corrections Act 1986 when drafting legislation to protect the minimum entitlements of Aboriginal and Torres Strait Islander people in prison in other states and territories.
Victoria already had the relevant legislation in place at the time of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), and work done in Victoria since then exceeds the scope of this recommendation.
We couldn’t find evidence of the National Standards Body developing legislation embodying the rights of people in prison. Instead, that body has been responsible for several reviews and revisions of the National Standard Guidelines for Corrections in Australia since the RCIADIC, culminating in the current 2018 revision. While the Corrections Act 1986 (Vic) has remained in place, it is yet to be substantially updated.
It’s one thing having it in place since 1986, I mean that was good then, but here we are almost 40 years later, times have changed. It needs to be reviewed and updated.
(Marion Hansen, Co-chairperson, Aboriginal Justice Caucus and Chairperson, Southern Metropolitan RAJAC)
A new legislative framework reflecting the Mandela Rules, as recommended by the 2022 Cultural Review of the Adult Custodial Corrections System, is not expected to be implemented in Victoria until after 2024-25.
Most aspects of Recommendation 329 no longer apply, or never applied in Victoria, as the recommendation was for other states to follow Victoria’s lead at the time. While the intent of the recommendation remains relevant, state-based action to develop a new legislative framework for the adult corrections system has greater potential to improve Aboriginal justice outcomes in Victoria in the near future.
Priority for Further Work:
Low
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Implement a new legislative framework for the adult custodial corrections system
The Victorian Government should introduce a new legislative framework to shape a more modern adult custodial corrections system with a focus on rehabilitation, safety and human rights. This new legislative scheme should:
- articulate the purpose and objectives of the adult custodial corrections system, with safety and rehabilitation as primary purposes
- set out principles and values to support clarity and consistency in decision-making within the adult custodial corrections system, including a decision-making framework for supporting Aboriginal people in custody
- include an express statutory statement that the loss of a person’s liberty is the punishment, in line with the Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules)
- adopt and reflect contemporary international human rights standards relating to people in custody including the United Nations Declaration on the Rights of Indigenous Peoples and Mandela Rules
- provide guidance on the minimum facilities required at all new prison locations, including minimum standards for cultural spaces and facilities to support cultural practice
- introduce safeguards to prohibit routine strip-searching and certain restrictive practices, specifying that they must only be used as a last resort and must not be used punitively or for improper purposes, along with requirements for the public reporting of data relating to the use of strip-searching, seclusion and other restrictive practices, and use of force
- expressly recognise the historical legacy of colonisation as set out in the AJA, factors contributing to over-representation of Aboriginal people in the criminal justice system, and the strength and resilience of Aboriginal communities
- recognise the right to self-determination and include a positive duty to ensure cultural safety for Aboriginal people in custody
- be flexible enough to support the key aspirations and outcomes of the Victorian Treaty process
- support increased connection and collaboration with the social services system
- establish an independent statutory Inspectorate of Custodial Services reporting publicly to Parliament.
(Cultural Review, Recommendation 2.1)
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the need for legislation to guarantee certain minimum requirements for people in custody and highlighted the Victorian Corrections Act 1986 as a useful example of codifying basic ‘prisoners rights’.
Actions Taken Since Last Review
Cultural Review of the Adult Custodial Corrections System 2022
The Cultural Review examined the culture, experiences, systems and processes within Victoria’s prisons and correctional centres. Drawing on research, data and direct testimony of people with experience of the corrections system the Cultural Review developed recommendations to promote a safer corrections system characterised by respect, equality, transparency and support. In recognition of the continued over-representation of Aboriginal people in custody, the Cultural Review also looked carefully at Aboriginal cultural safety and self-determination and made several recommendations to improve the circumstances of Aboriginal people living or working in the adult custodial system.
Yoorrook
The Yoorrook Justice Commission is the first formal truth-telling process into historical and ongoing injustices experienced by Aboriginal people in Victoria. Its second report, published in September 2023, focuses on past and ongoing systemic injustice within Victoria’s child protection and criminal justice systems.
Impact
Revisions of the Standard Guidelines by the National Standards Body, but no work on laws about the rights of people in prison.
Community Views
Corrections Cultural Review
[Custodial staff] behaviour towards us is beyond racist ... They are excusing, validating, and wiping away Aboriginal people’s rights, in workplaces, and within the prison, as a prisoner, and it’s not right. They’re getting away with it and dismissing it, by a blanket, “Oh, they’re culturally aware, they’re culturally trained”. However, it doesn’t excuse you from being a racist. It doesn’t excuse you.
Aboriginal staff member