Human Rights and Prisons
Yüklə 0,61 Mb.
|
2.1 The Legal FrameworkPrisons are often experienced as disempowering environments and, even in contexts where internal monitoring and accountability measures are strong, prisoners do not always view these measures as impartial or independent. In this context, the law is one crucial means that prisoners can gain protection (Livingstone, 2008). Legislation can reassert that prisoners have rights rather than privileges and while the use of law may occasionally be seen as an irritant it offers a sense of justice that is essential for the legitimacy of the prison order. Fundamentally, law can provide a means of opening up the closed world of prisons to public scrutiny; it provides a set of standards against which to evaluate prison rules and practices; and reaffirms the principle that prisoners should not be ‘subjected to any hardship or constraint other than that resulting from the deprivation of liberty’ (UN Human Rights Committee, 1992:3). There is a range of international standards and instruments that relate directly to imprisonment. These include:
New Zealand has taken many steps to bring domestic law into compliance with these international human rights obligations. At the same time, the UN Committee against Torture (2009:4) has recently shown concern that the New Zealand Bill of Rights Act 1990 is not a supreme law that takes higher status than other domestic law. As they note (ibid), this ‘may result in the enactment of laws that are incompatible with the Convention’. Indeed, on a number of occasions, legislation that has been inconsistent with the Bill of Rights Act has been passed (Geiringer, 2009). Some of this new legislation has undermined rights standards in relation to prisoners. Appendix One summarises some of the recent (2004 – 2010) changes that have been made to the legislative framework that guides policy and practice in prisons. The most significant of these has been the enactment of the Corrections Act 2004 (and Corrections Regulations 2005) which replaces the former Penal Institutions Act 1954 and associated regulations. Positive features of this new legislation include:
The Corrections Act also ended contractual arrangements that allowed for the private management of prisons. This issue has since been revisited, with recent legislation that once again enables prison management to be contracted to private parties. The Corrections (Contract Management of Prisons) Amendment Act 2009 includes requirements that contractors comply with relevant international obligations and standards and report regularly to the Chief Executive of the Department of Corrections on a range of matters including staff training, prison programmes, prisoner complaints, disciplinary actions, and incidents involving violence or self-inflicted injuries. Other recent amendments have included the Corrections Amendment Act 2009 which, among other things, prohibits the use of ‘electronic communication devices’ by prisoners and provides for the detection and interception of radio-communications; and expands search powers. The Corrections (Use of Court Cells) Amendment Act 2009 enables court cells to be used to temporarily house prisoners during accommodation shortages. The Crimes of Torture Act 1989 was amended to meet the requirements of the Optional Protocol to the Convention Against Torture, ratified by New Zealand in 2007. A new Part 2 of the Act was inserted to provide for visits by the Subcommittee and for the designation of National Preventive Mechanisms and a Central National Preventive Mechanism. Amendments have also been made to bail, sentencing and parole legislation. Significant among these was the introduction of new community sentences under the Sentencing Amendment Act 2007, which saw a slowing in the growth of the prison population, but placed pressures on Community Probation Services. The Parole Amendment Act 2007 also introduced a number of changes including: establishing residential restrictions that may be imposed on all offenders subject to parole or release; the monitoring of offender’s compliance with release conditions; powers to issue summons for information and evidence; the implementation of confidentiality orders; and, the ability of the Commissioner of Police to make a recall application. The Sentencing and Parole Reform Act 2010 establishes a new, three-stage regime for repeat violent offending in relation to specified qualifying offences. On a first conviction for a qualifying offence, the court issues a first warning. Offenders convicted of a second qualifying offence receive a final warning and must serve the sentence without parole. Offenders convicted of a third qualifying offence must receive the maximum sentence and, unless it would be manifestly unjust, serve the sentence without parole. Significant New Zealand case law has included the series of decisions culminating in Taunoa v Attorney General [2008] 1 NZLR 429 (SCNZ). The Behaviour Management Regime, that had operated at Auckland Prison between 1998 and 2004, was found (by the High Court, Court of Appeal and Supreme Court) to have breached prisoners’ rights to be treated with humanity and respect for their inherent dignity (affirmed by s23(5) of the New Zealand Bill of Rights Act 1990). In one case, the impact of the regime was such that its application to a particular prisoner amounted to disproportionately severe treatment in breach of s9 of the Bill of Rights Act. The Supreme Court set a high threshold for triggering these rights and reduced the amount of damages awarded to the affected prisoners. The original award of damages made in 2004 was met with significant political objection, and prompted the introduction of the Prisoners’ and Victims’ Claims Act 2005. The Prisoners’ and Victims’ Claims Act 2005 deals with the awarding of compensation to prisoners for breaches of their rights under the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 and the Privacy Act 1993. The Act restricts the awarding of compensation so tha Yüklə 0,61 Mb. Dostları ilə paylaş:
|