Imprisonment and the rights of people in prison

This section will provide a brief outline of the law, regulations, and policy that govern the operation of prisons in Victoria. These instruments can be the starting point for understanding the rights of people in prison, conditions and services available, and processes and frameworks for decision-making.

The Corrections Act 1986 (Vic) (‘Corrections Act’) is the principal legislation governing the operation of Victoria’s prison system. It establishes Victoria’s prisons, including establishing the governance and administration of prisons and powers of security and office holders. The Corrections Act also outlines the rights of people in prison, and processes giving rise to those rights.

The Corrections Act applies to both public and private prisons. The operation of the Corrections Act is supported by other regulatory frameworks, standards, and Corrections policy.

The Corrections Act is supplemented by the Corrections Regulations 2019 (Vic) (‘Corrections Regulations’). The Corrections Regulations provide practical content to the Corrections Act. For example, section 31 of the Corrections Act provides for circumstances where permission may be granted for a child to live with a parent in a prison. Regulations 34 to 38 of the Corrections Regulations sets out the practical matters such as decisions on the placement of children, reporting and recording decisions, and restrictions on children.

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) creates an obligation for public authorities to give proper consideration to human rights and act in a way that is compatible with human rights. As a public authority, Corrections Victoria is subject to the operation of the Human Rights Charter. The Human Rights Charter provides a framework for ensuring that legislation, regulations, policies, procedures and decisions are compatible with human rights.

There are a number of state, national and international standards that provide a framework for goals, outcomes and minimum requirements for the treatment of people in prison. The standards can be accessed at www.corrections.vic.gov.au/standards-for- prisoners-and-offenders.

The Victorian Correctional Standards for Men’s Prisons and Correctional Management Standards for Women’s Prisons set out the minimum requirements for Corrections services in prisons in Victoria. These standards provide a basis for accountability across the public and private prisons in the state.

Commissioners Requirements set out the high-level requirements for the operation of prisons. They provide correctional staff with operational guidance and seek to ensure consistency of practice across both public and private prisons. The Commissioner’s Requirements encompass five areas:

• security and control
• prisoner management
• programs and industries
• prisoner services
• healthcare services

The Corrections Regulations, Standards and Commissioner’s Requirements are operationalised and given effect through Deputy Commissioner’s Instructions (‘DCIs’). DCIs only apply to public prisons and can be accessed via the Corrections Victoria Website. Some DCIs, particularly those relating to prison security are restricted to the public.

DCIs outline the policy and procedure for managing specific events or issues within a prison and can be a useful document when understanding processes expected to be taken by prison staff and whether proper processes have been followed.

Human Rights Charter

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Human Rights Charter’) is Victoria’s core human rights document and forms part of the state’s human rights framework which includes other laws like the Equal Opportunity Act 2010 (Vic). The Human Rights Charter has been operative in Victoria since 1 January 2008 and places obligations on the Victorian Parliament; on courts and tribunals and on public authorities. Pursuant to section 38(1) of the Human Rights Charter, Victorian public authorities, including Corrections Victoria, are required to:

• properly consider human rights when making laws, developing policies, delivering services and making decisions; and
• act compatibly with human rights.

The Human Rights Charter protects twenty fundamental human rights. The rights most directly relevant to people in prison are:

• protection from torture and cruel, inhuman or degrading treatment; and
• humane treatment when deprived of liberty.

A number of other rights in the Human Rights Charter may also apply to people in prison and include:

• 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 space, appropriate food to maintain health and wellbeing, and where applicable to cater to special dietary needs, suitable and appropriate clothing, and health and dental care. People in prison also have the right to practice their religion and, where it doesn’t interfere with the security and good order of the prison, to join with others to practice their religion and to have access to articles that will enable them to practice their religion. Section 47 also enshrines the right of people in prison to make complaints about the management of the prison to various authorities and agencies, including the Minister of Corrections, the Victorian Ombudsman, and the Health Complaints Commissioner.

Discrimination law

People in prison who have experienced discrimination in prison may be able to bring a discrimination claim under the Equal Opportunity Act 2010 (Vic) (‘EO Act’) or a relevant Commonwealth discrimination law.

Generally speaking, discrimination can only occur in certain protected areas of life. The key issue for many people who have experienced discrimination in prison is whether the relevant activity or conduct occurred in a protected area of life. The conduct of prison authorities is most likely to be characterised as a ‘service’ for the purposes of discrimination law. The EO Act and Commonwealth discrimination laws do not define services but rather include a non-exhaustive list of categories of services, such as ‘services of any profession, trade, or business…’, and ‘services provided by a government department, public authority, state-owned enterprise or municipal council’ (s 4 EO Act; similar definitions exist across the key Commonwealth discrimination statutes).

It is generally uncontroversial that the provision of healthcare in a prison setting constitutes a service for the purpose of discrimination law. For contexts other than healthcare where it is less obvious that a person in prison is receiving a service, a critical factor in determining whether someone in custody is receiving a service is whether the relevant activity is an inherent part of incarceration or whether the activity is ‘helpful or beneficial to the prisoner’ (see Charles v State of Victoria [2015] VCAT 375; Rainsford v Victoria [2007] FCA 1059 [73]). This reasoning has been applied to conclude that the following activities are arguably services for the purposes of a discrimination claim:

• decisions regarding an application to perform volunteer work in the prison canteen;
• complaints about medical treatment;
• complaints about access to the telephone and problems with lost property.

Conversely, decisions made about disciplinary or security issues in the prison are unlikely to amount to a service (Egan v State of Victoria [2011] VCAT 1364 VCAT; Charles v State of Victoria [2015] VCAT 375 VCAT [56]). If a person in prison can establish that the treatment or conduct they experienced occurred within a protected area of life, then they can pursue a discrimination claim. (The general principles of discrimination claims are outlined in more detail in Chapter 11.1: Discrimination and human rights.)

Access to Information

A person in prison can make a request about information held about them by Corrections Victoria through the Freedom of Information Act (‘FOI Act’). This includes entries in the Prison Information Management System (PIMS), and their health records. Requests about health information should be made to Justice Health. Requests for other information should be made to Corrections Victoria.

If a family member or lawyer is making a request on behalf of a person in prison, they will need to provide a signed authority or written consent from the person in prison.

More information about how to make an application under the FOI Act can be found in Chapter 12.3: Freedom of information law. Fee waiver An application and copying fee generally applies to requests for Freedom of Information, however, people in prison are generally able to apply for a fee waiver on the basis of financial hardship.

Fee waiver

An application and copying fee generally applies to requests for Freedom of Information, however, people in prison are generally able to apply for a fee waiver on the basis of financial hardship.

International human rights law

While Australia has promised to comply with many key international human rights treaties relevant to the experience of people in prison – such as the Convention Against Torture – people cannot enforce these treaties directly under Australian law. As the Human Rights Charter provides that legislation such as the Corrections Act and Corrections Regulations must be interpreted consistently with human rights, international law and decisions of international and foreign courts and tribunals may be considered when interpreting this legislation.

Australia is also a signatory to the Optional Protocol to the Convention against Torture (OPCAT) but the Victorian government missed the January 2022 deadline to implement its obligations pursuant to the anti-torture treaty.

OPCAT aims to prevent torture and other cruel, inhuman or degrading treatment in places of detention (including prisons) through signatory governments:

• establishing and adequately resourcing domestic National Preventive Mechanisms dedicated to monitoring conditions and the treatment of people in prisons; and
• facilitating inspections of prisons by the United Nations Subcommittee on the Prevention of Torture (SPT) – a body of independent experts responsible for conducting visits to places of detention in jurisdictions that have ratified OPCAT and provide guidance to National Preventive Mechanisms.

In order to be OPCAT-compliant, a National Preventive Mechanism must:

• be established with full and transparent consultations with civil society, with Aboriginal and Torres Strait Islander people and others as recommended by the SPT;
• include Aboriginal and Torres Strait Islander representation at all levels;
• have a statutory basis and be independent of government and the institutions they oversee;
• be empowered to undertake regular and preventative visits, and have free and unfettered access to all prisons;
• be adequately and jointly resourced by federal, state and territory governments;
• have the power to make findings and recommendations publicly available and require responses from governments and detaining authorities; and
• be afforded appropriate privileges and immunities to ensure there are no sanctions or reprisals for communicating with the body.