This Oral Presentation will introduce ground-breaking empirical legal research comparing two new civil prison oversight models in Japan and the ACT. The study involved 2500 participants in more 50 prisons overall, with data collected as each system passed its first decade in operation.
Since the release of the 1955 UN Standard Minimum Rules on the Treatment of Prisoners, civil oversight has often been implemented in response to a prison crisis. Recent prison crises in Australia include the exposure of abuses at Don Dale Youth Detention Centre (NT), and similar revelations concerning the Cleveland Youth Detention Centre (QLD).
Civil prison oversight involves appointing independent civilians to inspect prisons to assess compliance with relevant norms. It is typically promoted as a way to prevent human rights abuses, and stimulate long-term prison reform. However, theorists have argued that civil oversight is an inherently weak mechanism for regulating government activity. Surprisingly, this debate has occurred in the absence of empirical evidence. We know very little about the actual impact of civil oversight in prisons, and preferable design features, if any.
This study is remarkable for its pioneering nature, and rigour. It is only the second research project ever permitted to conduct empirical research inside Japanese prisons, and the first non-Japanese study to gain such access. It is also the first external empirical assessment of civil oversight in the ACT prison. The study used qualitative and quantitative data collection methods, as well as archival research and interactions with a wide range of stakeholders and epistemic communities in this regulatory space in Japan, Australia and Europe. Significantly, data was collected from all three types of actor in each civil oversight system: prisoners, corrections officers and overseers. Moreover, the surveys used in the main data collection phase were offered to the entire population eligible to participate in each survey, rather than a random sample. Civil oversight is a regulatory mechanism at the base of Ayres and Braithwaite’s regulatory pyramid (1992).
This study shows how two radically different versions of this mechanism work in practice. The project is a fresh case study on:
- The adept use of gradualism in transformational law reform after a long period of stasis, and
- How sociolegal change is triggered through recursive processes, or expertly resisted, when “Transnational Legal Orders” move around the world (Halliday & Shaffer, 2015).
Finally, the study draws on Martin Krygier’s theoretical work on the rule of law, and sociologist Yoshio Sugimoto’s comparative sociological insights, to:
- Offer a rationale for rejecting homogeneity in global regulatory institution design, suggest an alternative approach, and
- Ask whether it is time to move past the universality of European-origin human rights-based norms, to a position based on “relative universalism.”