The Law Handbook 2024

Chapter 3.8: Imprisonment and the rights of people in prison 221 • the right to recognition, equality and non- discrimination; • the right to life; • the right not to be subjected to medical treatment without full, free and informed consent; • freedom from forced work; • the right not to have privacy, family or home arbitrarily interfered with; • freedom of thought, conscience, religion and belief; • the right of every child to have protection as is in their best interests; • the right to protection of families; • the right to take part in public life; • the right to liberty and security; • the right to a fair hearing; • cultural rights; and • the right to liberty and security of the person. While some of the above listed rights may seem inconsistent with the nature of the prison environment (e.g. the right to take part in public life), people in prison must enjoy these rights to the extent reasonably possible. The Human Rights Charter does, however, provide for rights to be limited in certain circum­ stances. Human rights can be reasonably limited where the limitation “can be demonstrably justified in a free and democratic society” (s 7) and a public authority can act in a way or make a decision that is incompatible with human rights if they could not have reasonably acted differently or made a different decision (s 38 (2)). If public authorities do not act compatibly with human rights or properly consider human rights, the Human Rights Charter gives people the ability to take action in the courts. A person cannot start legal proceedings for a breach of the Charter by itself, but breaches of the Charter can be raised in addition to (or ‘piggybacked’ to) certain other legal actions that involve an allegation that a public authority has acted unlawfully. Courts and tribunals must interpret all Victorian laws in a way that upholds the human rights outlined in the Human Rights Charter, as far as this is possible. If a proceeding is otherwise in a court or tribunal that is not the Supreme Court and a question arises about the interpretation of the particular statutory provision and the Charter, then that court or tribunal by its own motion, or by a party to the proceeding, may refer the matter to the Supreme Court (s 33). Remedies available under the Human Rights Charter are limited to declaratory relief and while the Supreme Court has the power to declare that a ‘statutory provision cannot be interpreted consistently with a human right’ (s 36(2)), such a finding does not invalidate the law. You currently cannot get compensation for a Charter breach. The Adult and Youth Parole Boards are regrettably exempt from the application from the Human Rights Charter so they do not have to properly consider or act compatibly with human rights. Application of the Human Rights Charter The Human Rights Charter has, at times, had a positive impact on the administration of prisons in Victoria. One example of this is Thompson v Minogue [2021] VSCA 358. In that case, Dr Craig Minogue challenged the lawfulness of the directions that he submit to random alcohol and drug tests (which required he provide a urine sample in the presence of a prison officer) and be subjected to strip searches before the tests, while being detained in Barwon Prison. While originally successful on a number of grounds in the Supreme Court, a number of those findings were overturned on appeal. But on appeal to the Court of Appeal, the strip searches that Dr Minogue was subjected to before urinalysis were confirmed to be incompatible with Dr Minogue’s human rights. The Court of Appeal agreed with the trial judge’s finding that the directions that Dr Minogue undergo strip searches prior to the random urine tests was excessive. It was found that such a requirement extended beyond what was reasonably necessary to achieve the purpose of the urine tests to deter people in prison from drug and alcohol use. The full judgement can be read here: www. austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/ VSCA/2021/358.html Rights available under the Corrections Act Section 47 of the Corrections Act outlines a small number of rights that are afforded to all people in prison. These include the right to time in outdoor