Imprisonment, supervision and prisoner rights

Prisoners’ rights are governed by the Corrections Act 1986 (Vic) (‘Corrections Act’) (div 4) and Corrections Regulations 2019 (Vic) (‘Corrections Regulations’) subject to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’). Prisoners are mostly entitled to the same rights as other citizens, but unlike citizens, prisoners are required to possess those rights in a way that is consistent with the good order, management and security of the prison or correctional facility.

Historically, courts have shown little interest in supervising the treatment of prisoners by correctional administrators. However, courts are now aware that they have an important role in protecting prisoners’ rights, and will intervene in appropriate cases to protect those rights. Given the passing of the Human Rights Charter, the scope for recognition of the rights of prisoners in Victorian prisons seems likely to be enhanced.

This was evident in the case of Castles v Secretary of the Department of Justice [2010] VSC 310 (‘Castles case’). In this case, the Supreme Court considered the Human Rights Charter in relation to a female prisoner’s request to access IVF treatment. The prisoner, Castles, requested permission to continue the IVF treatment she had commenced before her imprisonment. The DJCS Secretary refused permission and Castles challenged the DJCS Secretary’s decision. Ultimately, Justice Emerton found that the prisoner had a right to continue IVF treatment despite the objections of correctional authorities. Justice Emerton found the ‘right’ of the prisoner to have IVF treatment within section 47(1)(f) of the Corrections Act itself. Her Honour observed that although the Human Rights Charter was relied upon, it was not determinative, and merely confirmed the interpretation of the Corrections Act and Corrections Regulations. (See ‘Human Rights Charter’, below.)

Every Victorian prisoner, under section 47 of the Corrections Act, has 15 rights:

1. to be in the open air for at least one hour each day, if the weather permits (if not working outdoors);
2. to be provided with food that is adequate to maintain the prisoner’s health and wellbeing;
3. to be provided with special dietary food where the prison manager is satisfied that such food is necessary for medical reasons or on account of the prisoner’s religious beliefs or because they are a vegetarian;
4. to be provided with clothing that is suitable for the climate and for any work that the prisoner is required to do and is adequate to maintain the health of the prisoner;
5. to wear suitable clothing of their own (if not serving a sentence of imprisonment);
6. to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner’s own expense, a private registered medical practitioner, a physiotherapist or chiropractor chosen by the prisoner;
7. if intellectually disabled or mentally ill, to have reasonable access within the prison or, with the prison manager’s approval, outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;
8. to have access to reasonable dental treatment necessary for the preservation of dental health;
9. to practise a religion of the prisoner’s choice and, if consistent with prison security and good prison management, to join with other prisoners in practising that religion and to possess such articles as are necessary for the practice of that religion;
10. to make complaints concerning prison manage­ment to the DJCS Secretary, the prison manager, an independent prison visitor and the Victorian Ombudsman;
11. to receive at least one visit that is to last at least half an hour in each week under section 37;
12. to be classified under a classification system established in accordance with the regulations as soon as possible after being sentenced and to have that classification reviewed annually;
13. to send letters to, and receive letters from, certain people, including the Minister for Corrections, DJCS Secretary, Commissioner, independent prison person, Victorian Ombudsman, a lawyer (people listed in the Corrections Act (s 47(m)));
14. to send and receive other letters uncensored by prison staff except where the prison manager considers that prison security is threatened; and
15. to take part in educational programs in the prison.

These rights have been part of the Corrections Act since 1986, but the actual content of these rights has not developed greatly. However, the Castles case (above) may lead (given the potential scope of s 47) to the development of a more comprehensive prisoners’ rights jurisprudence in Victoria.

It is important to note that the prisoners’ rights listed in the Corrections Act are not freestanding but are subject to the discretionary management decisions of correctional administrators, who need to balance the concerns of good order and security of the prison and other correctional concerns. However, those concerns will not always be determinative. This is illustrated by the decision in the Castles case.

Since the passing of the Human Rights Charter in 2006 (which fully came into force on 1 January 2018), public and private prisons in Victoria have needed to ensure that their procedures and practices conform to the Human Rights Charter, as existing corrections legislation (e.g. Corrections Act and Corrections Regulations) are now interpreted in light of the Human Rights Charter. It is also important to note that the rights of prisoners set out in the Corrections Act (s 47) are in addition to the rights set out in the Human Rights Charter (s 5).

In addition, prisoners may be subject to proceedings initiated by the Attorney-General under section 21 of the Supreme Court Act 1986 (Vic) that they are a ‘vexatious litigant’ (one who brings legal actions solely as harassment) for instituting proceedings against the relevant correctional authority. For instance, in Attorney-General for Victoria v Knight [2016] VSC 488, an order restraining Julian Knight from commencing legal proceedings without the court’s permission was extended indefinitely under the Vexatious Proceedings Act 2014 (Vic).

A prisoner has the right to legal remedies, including obtaining an injunction requiring prison authorities to comply with the various legal requirements that are for the benefit of prisoners (e.g. if a prisoner is arbitrarily denied the legal entitlement to visits).

In the case of Prisoners A to XX Inclusive v New South Wales (1995) 75 A Crim R 205, 50 prisoners sought orders to ensure they had access to condoms while in prison – this case demonstrates the difficulties of such court action.

Victoria Legal Aid can help prisoners enforce their rights (see Chapter 2.2: How legal aid can help).

Common law duty of care

The common law has established that in the exercise of their power, authorities owe prisoners a duty of care (see Cekan v Haines (1990) 21 NSWLR 296). Such a duty may be violated if, for example, machinery in a prison workshop is unsafe and causes injury to a prisoner, or if prison officers allow a prisoner to be assaulted without taking steps to protect that prisoner (by transferring the prisoner to another division, increasing surveillance of the prisoners, etc.). If the common law duty is violated, a prisoner is entitled to sue for damages (see L v Commonwealth (1976) 10 ALR 269).

The High Court of Australia has confirmed the duty of care owed to prisoners due to their special and vulnerable status while in prison (see New South Wales v Bujdoso [2005] HCA 76 (8 December 2005)).

Victims of crime

Prisoners have access to the Victims of Crime Assistance Tribunal (VOCAT), which can award damages to victims of unlawful assaults. (For more information about VOCAT, see Chapter 10.6: Assistance for victims of crime.)

The Justice Legislation Amendment (Serious Offenders and Other Matters) Act 2019 (Vic) commenced on 20 November 2019 and amended the Corrections Act to enable victims to access money awarded as compensation to prisoners on remand.

International guidelines

There are international guidelines that address prison conditions, such as the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) (also known as the ‘Nelson Mandela Rules’). This has been adapted to local conditions in the Guiding Principles for Corrections in Australia (2018). These guidelines do not have legal status and are principally for the guidance of correctional administrators.

Australia is also a signatory to the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (2002) (OPCAT). This international human rights treaty aims to prevent the abuse of people in detention. Under this treaty, places where people are deprived of their liberty (e.g. prisons, police cells and psychiatric hospitals) can be inspected regularly by a United Nations committee and by local inspection bodies called National Preventable Mechanisms. While Victoria already has human rights laws and monitoring bodies, it is hoped that through OPCAT, more rigorous standards for inspecting places of detention will be introduced.

Prisoners’ access to courts and tribunals

Prisoners have a right to access courts and tribunals, such as the Victorian Civil and Administrative Tribunal (VCAT) and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). For example, two prisoners with HIV were awarded damages in Western Australia after the Equal Opportunity Tribunal ruled prison authorities had discriminated against them by segregating them and denying them access to facilities enjoyed by other prisoners. Correctional administrators may not interfere with the right of prisoners to access courts or other relevant tribunals.

Commissioner’s Requirements

The Commissioner’s Requirements stipulate that prisoners who are transexual, gender diverse or intersex must be treated with the same respect and dignity accorded to other prisoners. Furthermore, such prisoners must not be discriminated against or harassed on the grounds of their medical condition, gender identity, intersex status, or any related issue. In the placement of transexual, gender diverse and intersex prisoners, the safety and welfare of the prisoner and of other prisoners is of paramount consideration.

State and federal law

It is illegal for prison staff to treat transexual, gender diverse and intersex prisoners unfavourably because of their gender identity or intersex status.  There are Victorian and Commonwealth laws (the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 2010 (Vic)) that make it unlawful to discriminate against a person because of their gender identity or intersex status.

Prisoner staff must also act compatibly with the Human Rights Charter. Article 8 of the Human Rights Charter protects against discrimination on the basis of gender identity.  For example, prison health staff are obliged to continue a prisoner’s hormone treatment in accordance with Justice Health’s healthcare policy.

The Births, Deaths and Marriages Registration Amendment Act 2019 (Vic), which commenced on 1 May 2020, amended the Corrections Act and the SO Act to outline the requirements for prisoners and offenders wishing to alter the sex recorded in their birth registration. Prisoners and offenders, like other Victorians, are not required to have undergone sex affirmation surgery before an application is made.

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) has been fully operative in Victoria since 1 January 2008.

The Human Rights Charter places an obligation on public authorities, including Corrections Victoria, to comply with the rights outlined in the Human Rights Charter. Under section 38(1) of the Human Rights Charter, public authorities are obliged to give ‘proper consideration’ to human rights before making a decision, and are obliged to act compatibly with human rights.

The human rights that are directly relevant to prisoners are:

• protection from torture and cruel, inhuman or degrading treatment (s 10); and
• humane treatment when deprived of liberty (s 22).

In addition, a number of human rights may implicitly be applicable to the situation of prisoners; these include:

• recognition and equality before the law (s 8);
• right to life (s 9);
• freedom of movement (s 12);
• privacy and reputation (s 13);
• freedom of thought, conscience, religion and belief (s 14);
• freedom of expression (s 15);
• peaceful assembly and freedom of association (s 16);
• protection of families and children (s 17);
• taking part in public life (s 18);
• cultural rights (s 19);
• property rights (s 20); and
• the right to liberty and security of the person (s 21).

While a number of the above listed rights may seem inconsistent with the nature of the prison environment (e.g. ss 12, 18), it is possible to argue that prisoners should enjoy these rights to the extent reasonably possible within the operational contingencies of the prison environment. In these circumstances it is expected that correctional authorities will adapt their practices to ensure that prisoners do enjoy those rights as far as is possible.

Indeed, correctional authorities must do so, as the Human Rights Charter imposes ‘an obligation on all public authorities to act in a way that is compatible with human rights’ (s 1(2)(c)). In addition, in interpreting statutory provisions such as the Corrections Act and Corrections Regulations, correctional authorities must ensure that they do ‘so far as is possible in a way that is compatible with human rights’ (s 1(2)(b)). The extent of that obligation is further detailed in section 38 of the Human Rights Charter.

How is the Human Rights Charter applied?

The Human Rights Charter has had an important impact on the administration of prisons. A large number of prisoners have used the Human Rights Charter to challenge the decisions of correctional administrators.

A recent example of this is Minogue v Dougherty [2017] VSC 724. Minogue is a prisoner at Barwon Prison; he was sent a book about philosophy, which was returned to the sender by the prison’s mail officer. Minogue argued that his rights to privacy and freedom of expression under the Human Rights Charter had been violated. The Supreme Court found that Minogue’s rights had been breached, and found that the mail officer failed to turn her mind to Minogue’s rights. The breach was not regarded as substantial enough to entitle Minogue to damages.

An earlier decision of Castles v Secretary of the Department of Justice [2010] VSC 310 (see ‘Prisoners’ rights’, above) remains an important decision, as specific reliance was placed on provisions of the Human Rights Charter. Even though the Human Rights Charter arguments advanced were not decisive, the Human Rights Charter was used by a prisoner and assisted the other arguments made by them in that case. A court, when dealing with such proceedings, is required to interpret statutory provisions ‘in a way that is compatible with human rights’ (s 32 Human Rights Charter).

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 Human Rights 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 for determination (s 33).

The Supreme Court may make a declaration that the ‘statutory provision cannot be interpreted consistently with a human right’ (s 36(2)). This finding of inconsistent interpretation by the Supreme Court does not invalidate the relevant statutory provision or create any legal right or cause of action in respect of the party to the proceeding (s 36(5)). What does occur is that the declaration is forwarded to the Attorney-General and the relevant minister, who must within six months prepare a written response to the declaration and publish that response (s 37).