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Precedent (Australian Lawyers Alliance) |
PRISONERS’ RIGHTS AND JUDICIAL PROTECTION
REDUCING DEFERENCE?
By Greg Barns SC
The nature of imprisonment in Australia, as is the case in most common law jurisdictions, is that prisoners have little decision-making capacity. They are subject to a myriad of rules concerning, for example, classification, discipline and parole. But this is not to say prisoners are unable to challenge administrative decisions made by correctional authorities.
While prisoners’ capacity to challenge decisions that are adverse to them is limited, largely because the traditional view of the courts has been that prison management is a matter for executive government, corrections authorities do not have an effective carte blanche to do as they please to individual prisoners.
This article explores the capacity for administrative law principles and remedies, coupled with human rights protections, to ensure there are some checks and balances on correctional regimes around Australia.
Initially we look at the reluctance of courts to involve themselves in decisions taken by prison and correctional management. This is what we term ‘judicial deference’. We then examine the scenarios where that deference is less relevant or simply misplaced, and finally look at some options for reform. Before doing this we examine the regulatory framework for prisoners in Australia.
PRISON REGULATION
Each Australian state and territory has enacted legislation governing the prison system in that jurisdiction.[1] In addition, subordinate legislation and policies govern every aspect of daily life in the prison. For example, in Queensland what a prisoner does with his or her artwork is specifically governed in that jurisdiction’s legislation. Sections 28A–D of the Corrective Services Act 2006 (Qld) regulate the circumstances in which a prisoner can sell or give away an artwork. In Victoria the Corrections Regulations 2019 (Vic) heavily restrict the way a prisoner can spend the money in his or her account.
The intense and all-encompassing nature of the regulation of prison life, and then of parole, inevitably leads to some capricious and arbitrary decision-making by authorities. Last year the Victorian Ombudsman concluded that, ‘while we found improvements in some areas since 2011, disciplinary hearings in Victorian prisons are still carried out “in the dark” with insufficient scrutiny, oversight or transparency. And while we observed some good practices and decisions, the potential for unfairness is still rife.’[2]
We have experience, as Chair of the Prisoners Legal Service in Tasmania, of a similar culture. The capricious nature of regulation of the life of prisoners is often a case of ‘out of sight, out of mind’.
JUDICIAL DEFERENCE
As noted above, the courts have traditionally been reluctant to interfere in the running of prisons, or the decisions of prison management. In 2013, in the Supreme Court of Western Australia, McKechnie J set out with clarity the reasoning behind this approach. His Honour observed:
‘Courts do not manage prisons. This court should not intervene to grant prerogative or declaratory relief unless the actions of the respondent are unlawful or beyond power. The extent to which the rules of natural justice might apply in respect of management decisions is an open question. The nature of the legitimate expectations of a prisoner is also an open question. Neither question can be answered in the abstract. The facts must give context to the answers.
Management decisions or orders are within the authority of the superintendent under the Prisons Act, s36. They are not of their nature easily susceptible of judicial review. Absent bad faith, a prison superintendent has broad and encompassing power over discipline and management of a prison. A superintendent must maintain order and security. A superintendent must take steps to reasonably protect both prisoners and prison officers or other staff in an environment which may at times be charged. Sometimes a superintendent will have to act on less than complete information, including information that may be later shown to be in error.
... Carrying out the statutory or contractual responsibility requires a prison superintendent from time to time to make decisions and give orders which may be unfair in an individual case but are required for the overall good governance of that prison. Many prison orders will in fact be given when there is no practical possibility of judicial review.’ [3]
The aversion of the courts to interfering in prison management decisions is also explained by the lack of legitimate expectations (in the Kioa v West sense[4]) which a prisoner enjoys when detained. In the 1993 Queensland decision of Walker v The Queen,[5] Williams J surveyed authorities and concluded that:
‘[t]hose judgments stress the necessity for legitimate expectations to be adversely affected before a managerial decision taken by prison authorities will be reviewed by the courts. Here, neither decision to transfer affected in any way the applicant's status. He had no entitlement or legitimate expectation, for example, to spend the rest of his incarceration at Maconochie Lodge. It must not be forgotten that the applicant effectively had his right to liberty taken away by the sentence imposed upon him; if liberty is partially granted by prison officials in making a managerial decision as to where and how the inmate should be kept in custody, it cannot be asserted that the right to liberty has been taken away by a subsequent managerial decision, made in good faith, to the effect that in the interests of prison discipline and security, the inmate should be detained elsewhere in the system.’[6]
Judge of Appeal Nettle in Anderson v Pavic[7] pithily summarised the policy behind judicial reluctance to interfere with the powers exercised by prison authorities when he observed:
‘[p]rison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts’.[8]
Some limits on deference
While it is fair to say that the vast bulk of administrative law challenges by prisoners against decisions are not successful, there are cases where the courts will intervene and provide relief.
In Pickett v Tasmania,[9] a 2011 decision in which we were involved as junior counsel for the applicant, Wood J declared that the detaining of Mr Pickett in maximum security for extensive periods of time, and failing to inform him and apply consistently the rules of a behavioral management program, breached the common law duty of care owed to prisoners and the Corrections Act 1997 (Tas), which provides at s29(p) ‘the right to be provided with information about the rules and conditions which will govern the prisoner’s or detainee’s behaviour in custody’.
In the past 12 years there have also been some successful challenges in Victoria to prison decision-making.[10] These cases are of significance in that they demonstrate some erosion of the traditional ‘hands off’ approach we note above. In part, it can be argued that the availability of a charter of human rights – the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) – is a potentially powerful tool for prisoners to utilise when challenging prison decisions.
In Castles v Secretary to the Department of Justice[11] the applicant was denied a request to undertake IVF treatment while incarcerated. Justice Emerton held that, pursuant to s47(1)(f) of the Corrections Act 1986 (Vic) (Corrections Act), which provides ‘the right to have access to reasonable medical care and treatment necessary for the preservation of health’,[12] the respondent’s decision should be set aside. Her Honour, as Mackay notes, used the Charter to ‘confirm the interpretation that had been arrived at in any event’.[13]
Justice Emerton also, albeit in an obiter context, noted that prisoners retain rights. The loss of liberty does not mean prisoners lose rights such as ‘a right to enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health. That is to say, the health of a prisoner is as important as the health of any other person’.[14]
Such a proposition, though, was couched in the context of the loss of liberty: ‘although prisoners do not forgo their human rights, their enjoyment of many rights and freedoms enjoyed by other citizens will necessarily be compromised by the fact that they have been deprived of their liberty’, her Honour said.[15]
Two of the other recent Victorian decisions concerning challenges to prison decision-making involve Dr Craig Minogue. Dr Minogue, convicted and sentenced in respect of the 1986 Russell Street bombing, has successfully argued against decisions concerning the right of a prisoner to access mail and the subjection of prisoners to urine testing.
The 2017 mail case[16] concerned a number of interferences, by means of the interception of and a failure to deliver mail to Dr Minogue. Only one of the claims was successful. This related to a prison officer returning to the sender a book[17] addressed to Dr Minogue. The applicant’s argument was that this decision breached his right to privacy (s13 of the Charter) and the right to freedom of expression (s15(2) of the Charter).
The evidence from the prison officer was that she failed to take account of Dr Minogue’s Charter rights, which led Dixon J to declare that a letter addressed to the plaintiff was stopped in breach of the plaintiff’s right under s47(1)(n) of the Corrections Act to receive letters addressed to him.[18] His Honour also declared that in ‘deciding to return to sender, the letter and accompanying book ... the prison mail officer failed to give proper consideration to the plaintiff’s human right of privacy as it is defined in s13(a) of the Charter and of “freedom of expression” as it is defined in s15(2)(b) and (c) of the Charter.’[19]
More recently, in 2021, Dr Minogue challenged three occasions where he had to have a random alcohol and drug test and be strip searched.[20]
The first two instances were in September 2019 and February 2020, when Dr Minogue was required to provide a urine sample after being strip searched. When Dr Minogue challenged prison authorities, he was told this was a ‘random general test’, to which 5 per cent of prisoners are required to submit each month.
The third instance was also in February 2020, before Dr Minogue was visited by his lawyer. He was told to submit to a strip search, which is standard procedure when prisoners receive outside visitors. He refused because he objected to the blanket nature of the policy.
The strip searching procedure is humiliating and invasive of dignity and privacy. In Victoria, the prisoner is forced take off all their clothes, and their mouths, ears and arms are inspected. The genital area is searched, and the prisoner is forced to bend over and part the cheeks of their buttocks.
If prisoners refuse to provide a urine sample, according to the Victorian procedures tendered in the Minogue case, they are ‘secured in a sterile, secure area’[21] for 3 hours. The idea is that the prisoner might decide to comply in order to be released from that area.
Doctor Minogue argued that his human rights under the Charter were not properly considered by prison authorities when they made the rules and directions allowing for random drug and alcohol testing and strip searching. In particular, he argued that the right to privacy and the right to be treated with dignity while deprived of liberty were not mentioned in the Corrections Victoria documents which describe the regime for strip searching and drug and alcohol testing.[22]
Justice Richards found that the directions that Dr Minogue submit to a urine test on 4 September 2019 and on 1 February 2020 were authorised by s29A of the Corrections Act, but proper consideration was not given to relevant human rights in making the directions, in breach of s38(1) of the Charter. In particular, the directions were incompatible with Dr Minogue’s right to privacy, as contained in s13(a) of the Charter, and his right to be treated humanely and with respect for the inherent dignity of the human person, as contained in s22(1) of the Charter, was in breach of s38(1) of the Charter.
The strip searches of Dr Minogue before his urine tests on 4 September 2019 and 1 February 2020, and before and after a visit from his lawyer on 18 February 2020, were not authorised by reg 87(1)(d) of the Corrections Regulations 2019 (Vic), because there were not reasonable grounds to believe that they were necessary for the security and good order of the prison. However, her Honour found that the strip searches of Dr Minogue on 18 February were authorised by the Corrections Regulations. Her Honour also found that, as was the case for the other procedures, Dr Minogue’s Charter rights had been breached.
We noted, in a commentary on the decision,[23] that this case is important because ‘it represents a rare win for prisoners in challenging corrections regimes. Generally speaking, the courts see prison rules as matters for governments to change. But Dr Minogue’s case shows that human rights principles can be applied to prison practices and rules.’[24]
In Haigh v Ryan[25] Ginnane J set aside a decision by prison authorities to deny the applicant access to a pack of tarot cards. His Honour observed that prisoners do not lose rights, except the right to liberty:
‘A dispute about Tarot cards might hardly seem worth a Supreme Court case. But it is the underlying issues that are important. The Parliament has given prisoners, even those convicted of the most terrible crimes, rights they can seek to exercise while in prison, one of which is the right to practise their religion. Section 47 of the Corrections Act contains 15 paragraphs listing prisoners’ rights and s 47(2) states that those rights are additional to, and do not affect, any other rights which a prisoner has under another Act or at common law. The rights in the Charter also apply to prisoners. The Court must resolve this dispute as no other Court or Tribunal in Victoria has jurisdiction to do so.’[26]
In Queensland a recent decision by Martin J involved a challenge to a prisoner serving his sentence in isolation, or what is rightly termed ‘solitary confinement’. In Owen-D'Arcy v Chief Executive, Queensland Corrective Services[27] the respondent made a decision which placed the applicant on a no-association order. As Martin J described it, ‘The No Association Decision ... works to prevent the applicant from engaging in any meaningful conversations or exchanges. It places him in a cocoon of isolation from all but the slightest interaction with other human beings.’[28]
One of the grounds of review argued by the applicant was that the respondent had failed to take into account relevant considerations, including the impact of the decision on his human rights. Justice Martin agreed, observing that the Human Rights Act 2019 (Qld), s58 ‘requires, among other things, that a decision-maker ... must identify “the human rights that may be affected by the decision” and consider “whether the decision would be compatible with human rights”’. His Honour concluded that ‘[t]he consideration which was given to the rights identified by Ms Newman [an Executive Director within the Department of Corrective Services] was superficial at best’.[29]
His Honour found that ‘Ms Newman failed to take into account a relevant consideration, namely, the effect of the No Association Decision on the applicant’s human rights.’[30]
We noted above that, in relation to the regulation and administration of parole, prisoners also have some capacity to challenge decisions. In these cases this capacity is generally on the usual administrative law grounds such as unreasonableness, failure to take into account relevant considerations and other grounds.
A recent example of this type of challenge is found in Burridge v Parole Board Queensland,[31] where Bradley J set aside a decision of the respondent where it failed to take into account relevant considerations because it made factual errors about the applicant’s criminal history. Justice Bradley found that ‘the Board’s errors meant that it made its decision without considering Mr Burridge’s actual criminal history. It follows that the Board failed to take a relevant consideration into account in the exercise of its power under the [Corrective Services Act 2006 (Qld)].’[32]
The issue of the parole authority’s obligation to accord a right to be heard was considered by Hulme J in Boatswain v State Parole Authority.[33] There, the respondent erroneously found that the applicant lacked motivation for undertaking therapy or rehabilitation at hearing, and this error was influential in its decision to refuse parole. It did not put this finding to the applicant at the parole hearing. His Honour set aside the decision on the basis that, in accordance with what the High Court said in Annetts v McCann,[34] ‘One of the rules of natural justice is that the person has an opportunity to be heard.’ His Honour added: ‘The contention that the plaintiff lacked motivation in relation to treatment was never put to him during the hearing and accordingly the Parole Authority denied the plaintiff an opportunity to be heard on that point. I accept that there was a denial of procedural fairness.’[35]
CONCLUSION: REDUCING DEFERENCE
Prisoners are among some of the most legally vulnerable individuals in our community. The deprivation of liberty is enlarged by prison authorities, and the courts traditionally have implicitly given their imprimatur to this view, applying the punitive, capricious and arbitrary micro-management of lives. This is done in the name of the ‘good order’ of the prison, but it does not make sense when one considers this is counterintuitive to goals such as rehabilitation.
Academic Lisa Kerr has written that some measure of judicial deference is appropriate in the prison law context, as courts are ‘far removed from the “hothouse of a carceral environment”’.[36] However, she argues:
‘[p]risoner claims might be properly interpreted in light of the endemic administrative difficulties of operating resource-limited facilities filled with individuals who often bring complex personal histories to the facility and who are coping with significant deprivations. Yet, just as due deference is called for, there is also a clear imperative for careful external review and putting government to the burden of justification, given the pervasive risk of hidden abuse and neglect exercised on a powerless population.’[37]
There is much to recommend this view.
Greg Barns SC works from Republic Chambers in Hobart, Douglas Menzies Chambers in Melbourne, and Higgins Chambers in Brisbane, and is Chair of the Prisoners Legal Service in Tasmania. EMAIL republicone@ozemail.com.au. WEBSITE <https://republicchambers.com.au/>.[1] Crimes (Administration of Sentences) Act 1999 (NSW); Corrections Act 1986 (Vic); Corrective Services Act 2006 (Qld); Prisons Act 1981 (WA); Correctional Services Act 1982 (SA); Corrections Act 1997 (Tas); Correctional Services Act 2014 (NT); Corrections Management Act 2007 (ACT).
[2] Victorian Ombudsman, ‘Foreward’, Investigation into good practice when conducting prison disciplinary hearings, 6 July 2021 <https://www.ombudsman.vic.gov.au/our-impact/investigation-reports/investigation-into-good-practice-when-conducting-prison-disciplinary-hearings/>.
[3] Barreto v McMullan [2013] WASC 26, [37]–[39]. See also McEvoy v Lobban [1990] 2 Qd R 235.
[4] In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582, Mason J said: ‘It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.’
[6] Ibid, 9–10.
[8] Ibid, [32].
[9] Unreported, 20 April 2011.
[10] A helpful summary of the decisions is set out in A Mackay, Towards Human Rights Compliance in Australian Prisons, ANU Press, 2020, ch 3.
[11] [2010] VSC 310; (2010) 28 VR 141 (Castles).
[12] Ibid, [35].
[13] Mackay, above note 10, 86.
[14] Castles, above note 11, [108].
[15] Ibid, [109].
[16] Minogue v Doherty [2017] VSC 724 (Minogue).
[17] The returned book was René Descartes’ Meditations on First Philosophy, first published in 1641.
[18] Minogue, above note 16, [83].
[19] Ibid, [96].
[20] Minogue v Thompson [2021] VSC 56.
[21] Ibid, [28].
[22] Corrections Victoria Commissioner, ‘Commissioner’s Requirement, Strip Searches in Prisons – Section 1, Security and Control’, CR Number 1.2.3, current issue date November 2017.[23] The discussion on the Minogue strip search and drug testing case is drawn from G Barns, ‘A rare and significant win for prisoners – new limits around drug tests and strip searches’, The Conversation, 1 March 2021 <https://theconversation.com/a-rare-and-significant-win-for-prisoners-new-limits-around-drug-tests-and-strip-searches-155737>.
[24] Ibid.
[26] Ibid, [4].
[28] Ibid, [264].
[29] Ibid, [79]–[80].
[30] Ibid, [81].
[32] Ibid, [63].
[33] [2014] NSWSC 501 (Boatswain).
[35] Boatswain, above note 33, [59].
[36] L Kerr, ‘Contesting Expertise in Prison Law’, McGill Law Journal, Vol. 60, No. 1, 43–94, 92.
[37] Ibid.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2022/15.html