Prisoners’ rights are governed by the Corrections A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. (div 4) and Corrections Regulations. In a correctional environment, prisoners’ rights can be restricted due to the need to balance Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. and prisoners’ welfare. 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 A document that sets out what a person wants to happen to their money and other property after they die. intervene in appropriate cases to protect those rights. Given the passing of the 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  VSC 310 (‘Castles case’). In this case, the Supreme An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. considered the Charter in relation to a female prisoner’s request to access IVF treatment. The prisoner, Ms Castles, requested permission to continue the IVF treatment she had commenced before her imprisonment. The DJCS Secretary refused permission and Ms 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 Charter was relied upon, it was not determinative, and merely confirmed the interpretation of the Corrections Act and Corrections Regulations. (See ‘Charter of Human Rights and Responsibilities’, below.)
Every Victorian prisoner, under section 47 of the Corrections Act, has 15 rights:
- to be in the open air for at least one hour each day, if the weather permits (if not working outdoors);
- to be provided with food that is adequate to maintain the prisoner’s health and wellbeing;
- 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;
- 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;
- to wear suitable clothing of their own (if not serving a sentence of imprisonment);
- 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;
- 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;
- to have access to reasonable dental treatment necessary for the preservation of dental health;
- 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;
- to make complaints concerning prison management to the DJCS Secretary, the prison manager, an independent prison visitor and the Victorian A public official appointed to investigate citizens’ complaints against government departments and statutory authorities. A specialised ombudsman resolves consumer complaints in a particular industry, for example the banking ombudsman for the banking industry. See also statutory authority.;
- to receive at least one visit that is to last at least half an hour in each week under section 37;
- 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;
- 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)));
- to send and receive other letters uncensored by prison staff except where the prison manager considers that prison security is threatened; and
- 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 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 Charter, as existing corrections Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. (e.g. Corrections Act and Corrections Regulations) are now interpreted in light of the 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 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 ‘Causing trouble without good legal reason. A vexatious litigant repeatedly starts court cases that have no chance of succeeding. Vexatious litigation is a court action that is unnecessary or undertaken only to cause trouble, embarrassment or inconvenience for the other party. 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  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).
Remedies for rights breaches
A prisoner has the right to legal remedies, including obtaining an A court order that directs a person to do, or not to do, something. For example, a court can order a developer not to demolish a historic building. An injunction may be interim (operative until further order) or perpetual (continuing indefinitely). 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 To make people obey a law or the terms of an agreement, using police powers or court orders. their rights (see Chapter 2.2: How legal aid can help).
(1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort.
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 To take legal action in a civil case. for A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special 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  HCA 76 (8 December 2005)).
Victims of crime
Prisoners have access to the Victims of Crime Assistance A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. (VOCAT), which can (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. damages to victims of unlawful assaults. (For more information about VOCAT, see Chapter 10.6: Assistance for victims of crime.)
The Justice Legislation A change made to a legal document or Act of parliament. (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.
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 the AIDS virus 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.
Transexual prisoners and offenders
The Commissioner’s Requirements stipulate that prisoners who are trans, 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 trans, gender diverse and intersex prisoners, the safety and welfare of the prisoner and of other prisoners is of The most important thing, above anything else. An act of paramount force is one that cannot be made subject to another for its operation. Something of value, such as money, given by one person to another person as part of a contract..
The Births, Deaths and Marriages Registration Amendment Act 2019 (Vic) commenced on 1 May 2020. This Act 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 A formal promise to the court that a statement made by a witness, in court or in an affidavit, is true. An alternative to a religious oath. surgery before an application is made.
Charter of Human Rights and Responsibilities
The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) has been fully operative in Victoria since 1 January 2008. The Charter is a significant piece of legislation and is influential in guiding the administration of the prison system in Victoria. The Charter details numerous human rights that apply in Victoria and has a number of provisions that directly apply to the situation of prisoners.
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 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 Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. 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 Charter.
How is the Charter applied?
The Charter has had an important impact on the administration of prisons. A large number of prisoners have used the Charter to challenge the decisions of correctional administrators.
A recent example of this is Minogue v Dougherty  VSC 724. Mr Mingogue 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. Mr Minogue argued that his rights to privacy and freedom of expression under the Charter had been violated. The Supreme Court found that Mr Minogue’s rights had been breached, and found that the mail officer failed to turn her mind to Mr Minogue’s rights. The breach was not regarded as substantial enough to entitle Mr Minogue to damages.
An earlier decision of Castles v Secretary of the Department of Justice  VSC 310 (see ‘Prisoners’ rights’, above) remains an important decision, as specific reliance was placed on provisions of the Charter. Even though the Charter arguments advanced were not decisive, the 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 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 Charter, then that court or tribunal by its Decision by a body to take action, such as starting an investigation, without a complaint having been made. For example, a court can, ‘of its own motion’, without being asked by the parties in a case, find a person guilty of contempt of court., or by a A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. to the proceeding, may refer the matter to the Supreme Court for A finalisation, especially a decision made by a court or tribunal to finalise (determine) a case. (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).