Prisoners’ rights and remedies for breaches of rights

Prisoners have rights. These rights are protected in law and there are several avenues for a prisoner to seek to have their rights restored or protected, including seeking an injunction from the court requiring prison authorities to comply with prisoner rights.

Prisoners’ rights

Corrections Victoria exercises its power to regulate the lives of prisoners through the Corrections Act and Corrections Regulations together with the Director’s Instructions and the Local Operating Procedures of the respective prisons.

There are, of course, restrictions placed on prisoners’ lives due to the unique features of the prison environment, which requires a balancing of security and welfare concerns by correctional administrators. However, prisoners are basically entitled to the same rights as other citizens, with the only qualification on such rights being the legislative rules and regulations relating to their incarceration. In short, prisoners possess those rights that are consistent with the good order, management and security of the prison.

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 the rights of prisoners, and will intervene in appropriate cases to protect those rights. Given the passing of the Charter Act, 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 to the Department of Justice [2010] VSC 310 (“Castles Case”), where Justice Emerton found that the prisoner had a right to continue to undergo 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 Act was relied upon, it was not determinative, and merely confirmed the interpretation of the Corrections Act and Corrections Regulations.

The Corrections Act and Corrections Regulations are primarily concerned with administration, security and disciplinary matters. However, unlike other jurisdictions, the Victorian legislation does contain provisions dealing specifically with prisoners’ rights. Every prisoner, under section 47, has the right:

a if not ordinarily engaged in outdoor work, to be in the open air for at least an hour each day, if the weather permits;

b to be provided with food that is adequate to maintain the health and wellbeing of the prisoner;

c 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;

d to be provided with clothing that is suitable for the climate and for any work which the prisoner is required to do and adequate to maintain the health of the prisoner;

e if not serving a sentence of imprisonment, to wear suitable clothing of their own;

f 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;

g 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;

h to have access to reasonable dental treatment necessary for the preservation of dental health;

i 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;

j to make complaints concerning prison management to the Secretary, the prison manager, an official visitor and the Victorian Ombudsman (“the ombudsman”);

k to receive at least one visit which is to last at least half an hour in each week under section 37;

l 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;

m to send letters to, and receive letters from, the ombudsman or the ombudsman’s officers;

n to send and receive other letters uncensored by prison staff except where the prison manager considers that prison security is threatened; and

o 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 also important to note that the rights of prisoners as listed in the Corrections Act are not freestanding but are subject to the discretionary management decisions of correctional administrators, who also 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. The decision in the Castles Case is illustrative in this regard.

However, given the passing of the Charter Act in Victoria (discussed in greater detail below), it is expected that both public and private operators of prisons in Victoria will need to ensure that their procedures and practices conform to the Charter Act, as existing corrections legislation such as the Corrections Act and Corrections Regulations will now be interpreted in light of the Charter Act. It is also important to note that the rights of prisoners set out in section 47 of the Corrections Act are in addition to the rights set out in the Charter Act (see s 5 Charter Act).

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 [2004] VSC 407 (19 October 2004) a prisoner was declared a vexatious litigant, even though he had been successful in some previous proceedings.

Remedies for breaches of rights

A prisoner has the right to legal remedies, including obtaining an injunction requiring prison authorities to comply with the various legal requirements which are for the benefit of prisoners, such as if a prisoner was being arbitrarily denied the legal entitlement to mail or visits. The case of Prisoners A to XX Inclusive v New South Wales (1995) 75 A Crim R 205, in which 50 prisoners sought orders to ensure that they had access to condoms while in jail, demonstrates the difficulties of such court action.

The Local Operating Procedures (LOPs) contain provisions that can significantly affect a prisoner. For example, on a breach of a prison offence the prisoner is not only subject to the penalties in the Acts or regulations but is also automatically subject to the penalties contained in the LOPs.

The LOPs are made under delegated power either from the Corrections Act or Correction Regulations. If a rule in the LOP goes further than the legislative base it is arguably beyond the power of the director to make that rule. Accordingly, any prison manager relying on that rule has made an error of law which is reviewable either under the Administrative Law Act 1978 (Vic) or by judicial review in the Supreme Court. Complaints about the actions of prison officials can also be made to the ombudsman. This course of action is outlined in more detail in “Making requests or complaints”.

Apart from the rights enshrined in legislation, 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 officers allow assaults to be made on a prisoner without taking steps for protection (by transfer to another division, increased surveillance, etc.). If the common law duty is violated the prisoner is entitled to sue for damages (see L v Commonwealth (1976) 10 ALR 269). More recently the High Court of Australia 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)).

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

There are also international and domestic guidelines that address prison conditions. The relevant international rules include the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957), which has been adapted to local conditions in the Standard Guidelines for Corrections in Australia (2004). Note that these guidelines do not have legal status and are principally for the guidance of correctional administrators.

Prisoners also have a right of access to courts, and to the Victorian Civil and Administrative Tribunal (VCAT) and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). Two prisoners with the AIDS virus, for instance, were awarded damages in Western Australia after the Equal Opportunity Tribunal ruled prison authorities had discriminated against them by segregating them and thus 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.

Victoria Legal Aid (VLA) provides legal assistance to enable prisoners to enforce their rights. Such assistance may be means and assets tested, as well as being assessed to determine whether the prisoner’s application is worthy of assistance according to specified criteria (see How legal aid can help). Decisions are made by VLA under the Legal Aid Act 1978 (Vic) and may be subject to judicial and administrative review (see Appealing government and administrative decisions).

Charter of Human Rights and Responsibilities Act

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) has been fully operative in Victoria from 1 January 2008. The Charter Act is a significant piece of legislation and is likely to be influential in guiding the administration of the prison system in Victoria, as the Charter Act has a number of provisions that are directly applicable to the situation of prisoners. The Charter Act does this by detailing numerous human rights that now apply in Victoria. Those of direct relevance to prisoners include:

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 the particular human rights identified may implicitly be applicable to the situation of prisoners and they include the following:

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 (for instance, ss 12, 18) it is possible to argue that prisoners should enjoy these rights to the extent reasonably possible with the operational contingencies of the prison environment. In those 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 Act 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 Charter Act.

How will the Charter Act be applied?

The Charter Act is significant legislation. It is likely to be of importance in the administration of prisons. How this will occur will emerge over time, as prisoners seek to use the Charter Act in their dealings with correctional authorities. This will be most evident when prisoners challenge decisions of correctional administrators.

The decision of Castles v Secretary to the Department of Justice [2010] VSC 310 (seePrisoners’ rights”) is an important decision in this context, as specific reliance was placed upon provisions of the Charter Act. As discussed above, the Charter Act arguments advanced were not decisive. However, what is important is that the Charter Act was used by a prisoner and assisted the other arguments made by her 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 Act).

If a proceeding is otherwise in a court or tribunal that is not the Supreme Court and a question arises as to the interpretation of the particular statutory provision and the Charter Act, 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)). It is important to note that 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, however, 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).