LHRG207 - Human Rights and Criminal Justice

Year

Credit points

Campus offering

Prerequisites

LHRG103 Legal Institutions and Human Rights

Unit rationale, description and aim

The criminal justice system – from arrest, through pre-trial detention, the trial or special hearing, incarceration and post-sentence detention for “dangerous” people or for people deported on character grounds – includes many occasions or opportunities for the denial of human rights. Closed environments: police cells, remand centres, correctional centres, post-sentence detention, immigration detention, mental health facilities and forensic disability units raise significant human rights challenges across a range of domestic and international law and instruments.

This unit will build on your knowledge developed in introductory units and allow you to understand contemporary law and policy applicable to detained people. The unit trajectory charts the journey of people into, within and out of incarceration. Thus, the unit begins with reviewing the justifications for imposing imprisonment or detention and how these justifications comply with human rights principles, or not as the case may be. Throughout, there will also be consideration of groups in special positions, including young offenders, offenders with mental disorder, and groups who are over-represented in prison populations, most obviously indigenous peoples.

The aim of this unit is to provide you with the knowledge required to understand modern approaches to incarceration and to assess the propriety of those approaches vis-à-vis human rights.

Learning outcomes

To successfully complete this unit you will be able to demonstrate you have achieved the learning outcomes (LO) detailed in the below table.

Each outcome is informed by a number of graduate capabilities (GC) to ensure your work in this, and every unit, is part of a larger goal of graduating from ACU with the attributes of insight, empathy, imagination and impact.

Explore the graduate capabilities.

Content

Topics will include:

1. The core aspects of the law relating to pre-trial detention, imprisonment as a sentence, and other situations in which detention is used.
2. Detention on grounds of metal health and forensic detention.
3. Post-sentence detention and immigration detention.
4. The central elements of the prison regime, and its regulation though human rights principles, including:

• Rights lost and rights retained
• The role of the International Covenant on Civil and Political Rights
• The role of the Mandela Rules (UN Minimum Standards) in assessing this.

5. The prison disciplinary regime, the criminal law in prison, and duties to protect prisoners and staff

6. Special groups, including:

• Young offenders
• Offenders with mental disorder
• Indigenous offenders

7. Post sentence controls, including risk-based detention after a sentence has expired.

Learning and teaching strategy and rationale

This unit comprises 150 hours of study in total. It will be taught over a 12 week semester, with one 2-hour lecture followed by a 1-hour tutorial each week. Other study components might include on-line webinars, podcasts, readings, discussion forums etc. The balance of the hours is comprised of private study.

The strategy employed in this unit involves students’ active participation in practical learning and assessments that focus on real-world problems and challenges. In these ways the unit seeks to help students to develop their problem solving, decision making and investigative skills with regard to issues of human rights within criminal justice. This unit engages students in active learning activities, such as reading, writing, discussion and problem-solving to promote analysis, synthesis and evaluation of class content. Students will also work collaboratively in groups to prepare and deliver a Parole Hearing Simulation. Collaborative learning is an important component of active learning and sits within a community of inquiry theoretical framework. It provides opportunities for a group of individuals to collaborate in purposeful critical discourse and reflection to construct personal meaning and mutual understanding.

Assessment strategy and rationale

The proposed assessment tasks in this unit comprise a strategy that is explicitly created to support achievement of, and determination of, the unit Learning Outcomes. They do this through integration with the learning and teaching strategy above.

Subject to further revision, it is proposed that this unit be assessed by three assignments: a short written task focused on the requisite content knowledge, a research assignment, and a final examination.

1. Short Written Task. Students will be required to describe key themes relating to an aspect of corrections law. This may take the form of a short answer test, in-class ‘minute paper’ or other equivalent task.
2. Research Essay. This assessment requires students to critically evaluate societal responses illustrated by the current state of corrections law. The research essay will allow students to engage with the scholarship on specific approaches to research and write a substantial essay that responds to a question that engages with key issues within corrections law, practice and procedure.
3. Draft Application to the UN. Students will participate in a complex role playing exercise in which they will apply contemporary human rights principles to case studies, such as (by way of illustration) to the UN Human Rights Committee on behalf of an Australian prisoner. This assessment will allow students to demonstrate their capacity to work collaboratively in the field of criminal justice and demonstrate a professional attitude, to the problems or task at hand. It will involve a written submission.

Overview of assessments

Representative texts and references

A list of required readings will be found in the Study Guide, which will be available for download on the unit website prior to the beginning of the teaching semester. It is expected that all required readings for a topic will be completed before the corresponding tutorial. These readings may include book chapters, journal articles and government reports.

A list of additional readings may also be uploaded periodically on the unit website. While these readings are not compulsory, they may assist in furthering your understanding of topics and are recommended.

McSherry and Keyzer, Dangerous People: Policy, Prediction and Practice, Routledge, 2011.

Martin Flynn, Human Rights in Australia: Treaties, Statutes and Cases, Butterworths, 2003.

The UN Minimum Rules

Jeremy Gans, Terese Henning, Jull Hunter and Kate Warner, Criminal Process and Human Rights (Federation Press, 2011)

Anthony Amatrudo and Leslie William Blake, Human Rights and the Criminal Justice System (Routledge, 2014)

Bronwyn Glynis Naylor et al., Human rights in Closed Environments: Law in context (Federation Press, 2014)

Peter Birks (ed), Pressing Problems in the Law – Volume 1: Criminal Justice and Human Rights (Oxford University Press, 1995)

Jack Beatson (ed), The Human Rights Act and the Criminal Justice and Regulatory Process (Bloomsbury, 1999)

Ben Emmerson, Andrew Ashworth and Alison Macdonald, Human Tights and Criminal Justice (3rd ed, Sweat and Maxwell, 2012)

Stefan Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2006)

Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Bloomsbury, 2008)

Elaine Fishwick, Marinella Marmo and Leanne Weber, ‘Criminal Justice and Human Rights’ in Derek Dalton, Willem de Lint and Darren Palmer (ed), Crime and Justice: A Guide to Criminology (Thomson Reuters, 2021)

Terry Connolly, ‘Human Rights Aspects of Sentencing’ (Conference Paper, National Judicial College of Australia and Australian National University Conference, 11 February 2006)