South Australian Treasurer Kevin Foley and Attorney-General Michael Atkinson have just exposed the taxpayers of their state to potential claims from prisoners for mistreatment, and they are jeopardising the criminal trial process.

Why? Because recent comments by both about prisons and prisoners show a clear intention by the South Australian government to flout its obligations under UN connections on human rights.

Atkinson, a right-wing monarchist, last week lambasted magistrate Dr Andrew Cannon for suggesting in a paper on sentencing that courts should take account of crowded prisons when considering a jail term for offenders. Atkinson called Cannon “daft” and “delusional” for these comments.

Only a few weeks earlier, Mr Foley opined that he couldn’t care less about prison overcrowding. “Rack ‘em, pack ‘em, and stack ‘em in the cells”, said Foley, apparently in contradiction with a stance he took in 1994.

The problem with both these ill-informed and intemperate comments is that the South Australian government has legal obligations to prisoners which require it to provide humane treatment. And if the government does not do this, two consequences follow.

Firstly, if South Australia mistreats prisoners because of a deliberate policy of overcrowding and other actions which amount to inhumane treatment, then individual prisoners could launch legal action against the State for breach of duty of care.

The case law in this area is clear. Australia, and therefore each Australian state and territory, is a signatory to the UN Convention on Civil and Political Rights, the Convention on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and UN-approved minimum standards on treatment of prisoners. And there is also a duty recognised by courts in the common law world on the part of the state to exercise reasonable care for the safety of prisoners during their detention in custody.

If Foley and Atkinson’s comments are indicative of policy in the South Australian prison system then bring on the claims for compensation now!

The attitude of Atkinson and Foley to prisoners also opens the possibility of criminal trials being stayed (adjourned or delayed) for months, years or even permanently because prisoners cannot prepare their case adequately and therefore cannot get a fair trial. Once again, the law in this area is uncontroversial. If prison conditions are so intolerable that they are adversely impacting in a real way on prisoners getting access to their lawyers for the purpose of preparing their case, then the right to a fair trial is being breached; the courts will not tolerate this state of affairs.

Messrs Atkinson and Foley, in their desperate desire to rally around the law and order flag, have just undermined their own government’s position. How’s that for incompetence?

Get more Crikey, for less

It’s more than a newsletter. It’s where readers expect more – fearless journalism from a truly independent perspective. We don’t pander to anyone’s party biases. We question everything, explore the uncomfortable and dig deeper.

Join us this week for 50% off a year of Crikey.

Peter Fray
Peter Fray
Editor-in-chief of Crikey
50% off