NCJ Number
78990
Journal
Monash University Law Review Volume: 6 Issue: 3 and 4 Dated: (June 1980) Pages: 294-330
Date Published
1980
Length
37 pages
Annotation
This article examines recent efforts of Australian courts to intervene in prison administration through decisions favoring inmate litigants and opinions about prison conditions given in the context of other lawsuits.
Abstract
Until the 1970's, nonintervention was clearly the attitude of the courts and reflected the philosophy that prison officials should have flexibility to resolve daily problems. Recent reports documenting abuse of this authority and organized political pressure by prisoners and their external supporters have prompted judicial scrutiny of prison operations in response to inmate lawsuits. Furthermore, the demise of the rehabilitation ethic had led to adoption of the justice model which emphasizes due process rights in the prison situation. Following a review of parallel developments in the United States, conflicting trends in Australia concerning intervention are discussed. Some high court decisions have retreated from the interventionist stance, while others have resolved the ambiguous issue of prisoner rights by relying on international standards. Other judges have criticized medical conditions and physical abuse of inmates during the course of proceedings relating to other issues, such as sentencing and parole. The judiciary has a limited but important role to play in enforcing minimum prison standards because of the paucity of prisoners' constitutional and legislative rights and the physical nature of penal institutions in the foreseeable future. A potent weapon for prisoners is the declaratory order which can be sought when prisoner plantiffs establish a legal toehold on the basis of some prescription of right or statutory prohibition. Cases which tried to obtain declaratory relief regarding a prisoner's right to confidential communications with legal counsel are described. Generally, courts in Australia, England, and the United States are acknowledging that jurisdictional bars to inmate grievances should be lifted and the merits of the individual case should be considered. The article includes 119 footnotes. (Author abstract modified)