The Law Handbook 2024

Chapter 3.8: Imprisonment and the rights of people in prison 223 these treaties directly under Australian law. As the Human Rights Charter provides that legislation such as the Corrections Act and Corrections Regulations must be interpreted consistently with human rights, international law and decisions of international and foreign courts and tribunals may be considered when interpreting this legislation. Australia is also a signatory to the Optional Protocol to the Convention against Torture ( OPCAT ) but the Victorian government missed the January 2022 deadline to implement its obligations pursuant to the anti-torture treaty. OPCAT aims to prevent torture and other cruel, inhuman or degrading treatment in places of detention (including prisons) through signatory governments: • establishing and adequately resourcing domestic National Preventive Mechanisms dedicated to monitoring conditions and the treatment of people in prisons; and • facilitating inspections of prisons by the United Nations Subcommittee on the Prevention of Torture ( SPT ) – a body of independent experts responsible for conducting visits to places of detention in jurisdictions that have ratified OPCAT and provide guidance to National Preventive Mechanisms. In order to be OPCAT-compliant, a National Preventive Mechanism must: • be established with full and transparent consultations with civil society, with Aboriginal and Torres Strait Islander people and others as recommended by the SPT; • include Aboriginal and Torres Strait Islander representation at all levels; • have a statutory basis and be independent of government and the institutions they oversee; • be empowered to undertake regular and preventative visits, and have free and unfettered access to all prisons; • be adequately and jointly resourced by federal, state and territory governments; • have the power to make findings and recommendations publicly available and require responses from governments and detaining authorities; and • be afforded appropriate privileges and immunities to ensure there are no sanctions or reprisals for communicating with the body. Unsentenced vs sentenced There are two major categories of people in prisons: those who have been sentenced and those who are unsentenced on remand. This fundamental distinction is from the International Covenant on Civil and Political Rights (1966) ( ICCPR ). Unsentenced people Unsentenced people in prisons – also known as people on remand – are people detained in custody but who have not been found guilty or plead guilty to the offences with which they are charged. People on remand have either not applied for bail, or have been refused bail, or cannot meet the bail set or provide the necessary surety, or are unable or unwilling to meet the bail conditions (see Chapter 3.6: How bail works). Theoretically, people on remand should be considered innocent until proven guilty. The Human Rights Charter states that people on remand ‘must be treated in a way that is appropriate for a person who has not been convicted’ (s 22(3)). However, sentenced people in prison and people on remand are both referred to as ‘prisoners’ in the Corrections Act, which does not provide for different standards of rights for both groups. The ICCPR provides that remanded and sentenced people in prison should be held in separate facilities. The Human Rights Charter also requires that remanded and sentenced people in prison be separated and may only intermingle where ‘reasonably necessary’ (s 22(1)). In practice, intermingling between remanded and sentenced people in prisons occurs often, especially when the prison system is overcrowded or when people are incarcerated in units designated for particular cohorts, for example, units for young adults or people in prison who require protection. The time a person spends on remand must be taken into account and deducted from a sentence of imprisonment or detention (subject to a small number of exceptions). Sentenced people Sentenced people in prisons are either serving sentences imposed by the courts or are imprisoned