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Faculty of Law, UNSW
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Debeljak, Julie --- "The Rights of Prisoners under the Victorian Charter: A Critical Analysis of the Jurisprudence on the Treatment of Prisoners and Conditions of Detention" [2015] UNSWLawJl 49; (2015) 38(4) UNSW Law Journal 1332






The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) fully came into force on 1 January 2008. The Charter provides statutory protection for civil and political rights, and imposes obligations in relation to rights-compatible statutory interpretation (section 32) and public decision-making compatible with rights (section 38). These are novel enforcement mechanisms within the Victorian legal system.[1]

Statutorily protected rights, coupled with enforcement mechanisms, provide a new avenue for the protection of rights in Victoria. However, there has been a distinct under-utilisation of the Charter in the courts. Indeed, in co-editing a journal volume on the development of Victorian rights jurisprudence, Warren CJ and Tate JA lamented that ‘[d]espite the encouragement of courts, and the support of individual judges, we continue to see reluctance on the part of practitioners to raise arguments under the Charter’.[2] Their Honours anticipated that the journal articles would ‘assist practitioners to identify relevant issues and to ask the right questions about a case’, and allow them to present the Court ‘with cogent submissions on the Charter’s operation and effect on statutory interpretation’.[3] The blame for the under-utilisation of the Charter, however, does not lie solely with legal practitioners. There are examples of judicial avoidance and minimisation of Charter-based arguments and findings, as well as judicial misunderstanding of the relevant Charter issues.

This article explores Charter jurisprudence in Victoria through a case study on the rights of prisoners.[4] Prisoners have much to gain from the Charter, but surprisingly this is not borne out in the jurisprudence. There have been only two successful prisoner’s rights cases in the Victorian public prisons system in the past 30 years,[5] and the Charter ‘has generated far less litigation concerning prisoners’[6] than comparative jurisdictions with rights instruments.

This article begins by exploring the impediments to rights realisation

in prisons, highlighting the rights vulnerabilities of persons held in

closed environments.[7] The article then critically examines the Charter-based jurisprudence concerning prisoners, concentrating on the conditions of

detention or treatment of prisoners.[8] There is no single focus to the Charter-based challenges within prisons. The article will consider cases concerning:[9] first, section 47(1) rights under the Corrections Act 1986 (Vic) (‘Corrections Act’); secondly, the place of detention; and thirdly, the conditions of detention and sentencing.[10] Analysis will focus on how the Charter was or was not used, and how Charter arguments could be used and/or used more effectively in future litigation based on comparative jurisprudence.

The article concludes by identifying challenges facing Charter litigation. To date, ‘rights-successful’ decisions have occurred in the shadow of the Charter, rather than directly under the Charter – that is, the jurisprudence is ‘Charter-inspired’ rather than ‘Charter-based’. To better protect rights,[11] the Charter must become a source of reliance in litigation and jurisprudence, not merely a source of inspiration. Clarification of the operation of the limitation/proportionality test (section 7(2)) and the statutory interpretation mechanism (section 32(1)), and their interaction, will be vital to moving from Charter-inspired to Charter-reliant decision-making.


Closed environments,[12] such as prisons, have features that increase the risks of rights violations. Those detained in prison are particularly vulnerable to

abuse per se – they are detained in a security-focused environment,[13] where

a significant power imbalance exists between prisoners and those in

their charge, and which creates a ‘total institution’.[14] These features are

amplified in the current prison climate, which is characterised by

unsustainable growth in the prison population;[15] the associated overcrowding of

facilities[16] and impact on the treatment of detainees;[17] the diverse needs

of prisoners, including their physical and mental health needs;[18] and the management of matters ranging from drug and alcohol abuse to acquired brain injury.[19]

These features of prison undermine the residuum principle,[20] which provides that ‘[p]risoners are in prison as punishment not for punishment’,[21] and legally retain all rights other than the right to liberty.[22] This principle is reflected in numerous Charter rights, such as the section 10 right to be free from torture and cruel, inhuman and degrading treatment, and the section 22 right to be treated with humanity and dignity when deprived of liberty. Whenever the loss of

liberty restricts prisoner’s rights, the Charter requires an assessment of

the reasonableness and justification of the restriction under section 7(2).[23] On occasion, the balance will fall in favour of a prisoner. Where the balance is against the prisoner, the reasons for that decision must be fully articulated against the standards of reasonableness and justifiability, providing transparency of and accountability for decision-making.

The challenge is to overcome the tensions between the residuum principle, and the detention of prisoners in a ‘total institution’[24] with design features that undermine rights.[25] With these risk features and tensions in mind, we examine the Charter jurisprudence on prisoner’s rights. Despite the risk features and tensions, consistent and effective engagement with the Charter has failed to materialise.


Section 47(1) of the Corrections Act lists the statutory rights of prisoners. It includes the right to open-air exercise, adequate food and clothing, take part in educational programmes, make complaints about prison management, and send letters to and receive letters from various public officials without those letters being opened by prison staff;[26] as well as religious rights and visiting rights.[27]

There is, however, no statutory remedy for breach of section 47(1).[28] This may explain why section 47(1) had not been successfully enforced in

legal proceedings prior to the Charter.[29] After the enactment of the Charter, section 47(1) has been successfully invoked, but the Charter was not instrumental in this success.[30] Critiquing the jurisprudence highlights strategies for more effective use of the Charter.[31]

A Castles: Narrow Charter Enforcement

Castles was a female prisoner who wished to resume in-vitro fertilisation (‘IVF’) treatment at Melbourne IVF Clinic, which she began prior to her imprisonment. Castles’ infertility was age-related – she was 45-years old when she applied for treatment, and would be ineligible for treatment by age 46. She would not be released from prison before turning 46,[32] and so needed to resume treatment during her period of imprisonment.

Castles represents the prisoner’s ‘rights-success’ under the Charter to date – yet, the Charter was not relied on, Charter rights were interpreted narrowly, and section 7(2) limitations analysis was avoided. As ‘rights-successes’ go, Castles is a close-call.[33]

1 The Decision

Justice Emerton upheld Castles’ application under section 47(1)(f) of the Corrections Act, which provides that all prisoners have a ‘right to have access to reasonable medical care and treatment necessary for the preservation of health’.[34] Her Honour held that section 47(1) ‘confers on Ms Castles the right to continue to undergo IVF treatment for her infertility’,[35] although not necessarily at the clinic of Castles’ choice,[36] and only on a visit-by-visit basis.[37] Importantly, Emerton J based her decision on an ordinary interpretation of section 47(1)(f), with the Charter only ‘serv[ing] to confirm the interpretation that had been arrived at in any event’.[38]

2 The Rights

Castles relied on section 38(1) of the Charter – the prison was a public authority,[39] and section 38(1) made it unlawful for a public authority to act incompatibly with rights.

(a) Unsuccessful arguments

Castles’ arguments based on the rights to found a family and privacy were unsuccessful.[40] Regarding the former, section 17(1) of the Charter states that ‘[f]amilies are the fundamental group unit of society and are entitled to be protected by society and the State’. Unlike article 23 of the ICCPR,[41] section 17 does not additionally confer ‘[t]he right of men and women of marriageable age to marry and to found a family’. Although the Human Rights Consultation Committee (‘HRCC’)[42] considered the right to found a family to be an essential right, it did not recommend its inclusion in the Charter because inclusion would pre-empt the Victorian Law Reform Commission (‘VLRC’) reference on assisted reproduction and adoption.[43] Justice Emerton noted the right was not included in the Charter,[44] with the Explanatory Memorandum stating ‘[i]t is not Parliament’s intention to create a right to found a family in the Charter’.[45]

Given the limited protection under section 17,[46] argument turned to whether a right to found a family could be found within the section 13(a) right to privacy and family. In Evans v United Kingdom, the European Court of Human Rights (‘ECtHR’) held ‘that respect for “private life” incorporates respect for decisions to become and not to become a parent’.[47] Although Emerton J recognised the relevance of comparative jurisprudence,[48] it did not sway her Honour, holding that ‘[t]o construe s 13(a) ... as incorporating a right to become a parent ... would be inconsistent with Parliament’s stated intention’.[49] According to her Honour, the Explanatory Memorandum ‘provides sufficient basis ... not [to] construe the rights that have been specifically selected for protection ... as including a right to found a family’.[50] Therefore, a Charter right ‘which might otherwise have encompassed rights to ART ... should be construed as not encompassing such rights’,[51] closing the door on indirect recognition of a right that was not directly recognised.

By contrast, there are numerous examples of indirect recognition of rights that are not directly recognised in international jurisprudence.[52] Such decisions are explicable by the ‘living tree’ characterisation of rights instruments.[53] The Charter was new when Castles was decided, and the express exclusion of direct protection was clearly articulated and democratically sanctioned by Parliament. Whether greater flexibility regarding the indirect recognition of rights will permeate the jurisprudence as the Charter ages remains to be seen.

Regarding the stand-alone section 13(a) privacy and family argument, Castles relied on Dickson v United Kingdom,[54] which considered a corrections policy that restricted access to IVF treatment. The ECtHR held ‘that a refusal to provide artificial insemination facilities concerned the private and family lives of the applicants, which incorporated the right to respect for their decision to become genetic parents’.[55] The corrections policy ‘set the threshold so high against’ the prisoner and his wife ‘that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary’,[56] and thus violated the article 8 right to privacy and family life[57] under the European Convention on Human Rights (‘ECHR’).[58] Justice Emerton understood Castles’ submission as confirmation that Castles was asserting a right to found a family by seeking to become a genetic parent, and that ‘the privacy right should not be construed so as to encompass such a right’.[59]

This confirms Justice Emerton’s disinclination to allow indirect protection of a right that was directly excluded. There is, however, one difficulty. The ECtHR developed the parenting aspects of the right to a private and family life under article 8 of the ECHR, while the ECHR contains an explicit right to found a family under article 12.[60] Indeed, in Dickson v United Kingdom, the ECtHR resolved the issue under article 8 and held that it was unnecessary to examine

the article 12 complaint.[61] To protect parenting rights under article 8 was not considered an improper indirect protection of a claim that could be protected directly under article 12 by the ECtHR. Justice Emerton does not explain why indirect protection under an instrument that could provide direct protection, is any different to indirect protection under an instrument that would have provided direct protection but for the timing of the VLRC reference.[62]

Were Castles’ right to privacy considered engaged, Emerton J would have had to balance Castles’ right to become a genetic parent against competing public interests under section 7(2) of the Charter. Public interest factors in Dickson v United Kingdom included: ‘losing the opportunity to beget children was an inevitable and necessary consequence of imprisonment’; ‘public confidence

in the prison system would be undermined if the punitive and deterrent elements of a sentence [were] circumvented by allowing prisoners ... to conceive children’; and the absence of the imprisoned parent ‘would have a negative impact on any child conceived and ... society as a whole’.[63] These factors were identified, analysed, and rejected by the ECtHR.[64] By contrast, the relevant public authorities did not have to articulate and justify the public interest being served in Castles’ situation.

(b) Successful argument

The ‘successful’[65] argument pertained to the section 22 right of persons deprived of their liberty to be treated with humanity and respect for their inherent dignity. Justice Emerton accepted that the section 10 prohibition on cruel, inhuman and degrading treatment ‘prohibits “bad conduct” towards any person’; whereas ‘s 22 mandates “good conduct” towards people who are detained’.[66] Her Honour referred to the Human Rights Committee’s (‘HRC’)[67] opinion that the right to humane treatment ‘imposes a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty’.[68] Justice Emerton referred to the Standard Guidelines for Corrections in Australia (Revised 2004) (‘National Guidelines’)[69] which are based on the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Standard Minimum Rules for the Treatment of Prisoners, UN Doc A/CONF6/C1/L1 (14 February 1955) and endorsed by the Victorian Department of Justice.[70]

To give content to section 22 in the context of access to medical treatment, Emerton J held it was ‘necessary to go no further than’ the National Guidelines and section 47 of the Corrections Act.[71] Her Honour held that: ‘the starting point should be that prisoners not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty’; ‘access to health care is a fundamental aspect of the right to dignity’; and ‘the health of a prisoner is as important as the health of any other person’.[72] However, although prisoners do not forfeit their rights, Emerton J recognised that a prisoner’s enjoyment of rights ‘will necessarily be compromised’,[73] ‘“curtailed”, “attenuated” and “qualified”’ by their deprivation of liberty.[74] Consequently, her Honour held that section 22 ‘does not encompass the right to any and all medical treatment that is available in the community’; but that the more limited right to medical treatment must guarantee ‘that the health of prisoners is protected and accorded no less importance than the health of other members of the community’.[75] According to Emerton J, section 47(1)(f) satisfies these requirements of the section 22 Charter right.

This analysis conflates two distinct questions: what is the scope of the section 22 right; and, if section 22 of the Charter is restricted by section 47(1) of the Corrections Act, is this reasonable and justifiable under the limitations provision in section 7(2) of the Charter?[76] Justice Emerton reads down the scope of section 22 of the Charter in order to accommodate the consequent compromises arising from the deprivation of liberty.[77] However, in comparative jurisdictions, rights are interpreted generously, and restrictions to rights are accommodated under limitations provisions. For example, the Supreme Court of Canada pursues broad, purposive interpretations of rights,[78] given that section 1[79] allows reasonable limits to be placed on rights.[80] In Canada, restrictions on rights are not incorporated into the definition of the rights themselves, because section 1 provides the mechanism for justifying limits to rights.[81] This translates to recognising that section 22 dictates that prisoners have the same right to access to medical treatment as the rest of the community, but that it is reasonable and justifiable under section 7(2) to limit this right because of security, good order and the like. Instead, Emerton J read down the scope of section 22, and

avoided the limitations/proportionality exercise that provides transparency and accountability for rights-limiting decisions.[82] Deliberation on the types of factors considered in Dickson[83] may have produced a more favourable outcome for Castles.

The then recent Victorian Court of Appeal (‘VCA’) decision in R v Momcilovic (‘VCA Momcilovic’)[84] may have influenced Justice Emerton’s reasoning. In VCA Momcilovic, the VCA unanimously held that section 32(1) of the Charter ‘does not create a “special” rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question’.[85] To meet the section 32(1) obligation, a court must explore ‘all “possible” interpretations of the provision(s) in question, and [adopt] that interpretation which least infringes Charter rights’,[86] with the concept of ‘possible’ being bounded by the ‘framework of interpretative rules’.[87] The VCA then outlined a methodology for assessing whether a provision infringes a Charter right:

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984.

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.[88]

Of importance, the VCA held that section 7(2) is not relevant to interpretation[89] or assessing rights-compatibility,[90] but is a step preparatory to ‘enforcement’ via section 36(2) declarations of inconsistent interpretation.

The VCA Momcilovic methodology may have influenced Justice Emerton’s conflation of the scope and limitations questions into one, subject to two considerations. First, there is no reference to VCA Momcilovic in this part of her Honour’s reasons.[91] Secondly, VCA Momcilovic does not sanction consideration of section 7(2) limitations at the interpretation stage, yet Emerton J did just this when reducing the scope of the section 22 rights. VCA Momcilovic has been undermined by the High Court of Australia in HCA Momcilovic,[92] at least in relation to limitations analysis, and will be discussed below.

3 Requirement of section 47(1)

Having ensured that the ordinary interpretation of section 47(1) was consistent with section 22, Emerton J then considered the requirements of ‘necessity’ and ‘reasonableness’ under section 47(1).

Her Honour’s view that Castles’ IVF treatment was ‘necessary’ for the preservation of her reproductive health within section 47(1)(f) was ‘reinforced’ [93] by, inter alia, the section 32(1) interpretative obligation of the Charter. Section 47(1)(f) of the Corrections Act had to be ‘construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.[94] Humanity and dignity required ‘the provision of facilities, goods, services and conditions necessary for the realisation of the standard of health enjoyed by other members of the community’, and an interpretation of section 47(1)(f) consistent with these requirements was ‘open under the existing rules of statutory interpretation and afford[ed] proper protection against interfering with Ms Castles’ fundamental human rights’.[95]

Consideration of whether treatment was ‘reasonable’ involved various factors,[96] including a clinical assessment, ‘the cost of the treatment and the magnitude of any disruption to the prison system’.[97] For Castles, a significant factor against reasonableness – both in terms of logistics[98] and opportunity costs[99] – was the request to travel from Tarrengower Women’s prison in Castlemaine to Melbourne[100] to receive the treatment, when treatment was available closer to the prison.

On this construction of section 47(1)(f), Emerton J held that ‘IVF treatment is both reasonable and necessary for the preservation of Ms Castles’ health’, but that ‘this does not necessarily entail the right to receive such treatment ... at the Melbourne IVF Clinic’.[101] Section 47(1)(f) would be satisfied if the Secretary, in consultation with Castles, investigated whether treatment was available closer to the prison and approved treatment at the alternative clinic.[102] Justice Emerton opined:

Even in a human rights context, where the proportionality assessment is a key part of the court’s role and involves it engaging in ‘a high standard of review’ ... - fn49 the court cannot enter into the process of fine-tuning arrangements that would satisfy the requirements of the Corrections Act, meet the health needs of Ms Castles and overcome the practical difficulties created by competing demands for resources within the corrections system.[103]

4 Permission to Leave the Prison

Having established the section 47(1)(f) right, permission to leave the prison was considered. Section 57A of the Corrections Act allows the Secretary to issue permits to leave the prison for health purposes, but section 57D requires the Secretary to be satisfied that the safety and welfare of the prisoner and the public is assured, and that suitable escorts and transport are arranged.[104]

According to Emerton J, section 57D dictated that permits may only be issued for a specified permit or a small group of permits close in time,[105] and that the right under section 47(1)(f) of the Corrections Act ‘weigh[ed] heavily in favour of the grant of a permit on a visit by visit basis’.[106] This fell short of Castles’ request for a permit for an unspecified number of absences at unspecified times over a particular period. Her Honour held that ‘[p]ermits cannot be issued, or guaranteed to be issued, months, weeks or even days in advance’, and they will ‘only be issued a short time before they are needed’ and ‘may be refused if circumstances so dictate’.[107] Accordingly, a justifiable limit on Castles’ section 47(1)(f) right may be security concerns or lack of transport, the latter reinforcing that treatment closer to the prison would ‘facilitate the provision of transport and escorts, and make the difficult job of reconciling the competing resourcing demands within the prison easier’.[108]

5 Benefits of Proportionality Analysis and Charter-Based Decision-Making

This resolution demonstrates the importance of proper proportionality analysis and the benefit of Charter-based, rather than Charter-inspired, decision-making.

Regarding the former, Castles highlights the multitude of competing interests in prison. There are competing interests of: individual prisoners; individual prisoners and other prisoners in the same prison; individual prisoners and the general prison population; and individual prisoners and the wider community.[109] Regarding balancing these interests, Groves concludes ‘the perpetual prison problems stemming from the limited resources provided to prison officials and the many competing demands placed on those resources remain unchanged

in the new era of human rights’.[110] However, had Emerton J not resolved the limitations/proportionality issue within the definitional issue – that is, addressed the limitation of rights when defining the scope of the right, rather than under section 7(2) – the outcome may have been different.

First, section 22 creates a positive right and, if interpreted broadly and purposively, the obligations on the public authority may have been more considerable, including priority being given to IVF treatment amid all other competing demands when allocating scarce resources. Secondly, if limitations to section 22 had to be justified under section 7(2), the reasonableness test under section 47(1) of the Corrections Act and permission under section 57D of the Corrections Act to leave would be filtered through proportionality under section 7(2) of the Charter, potentially producing a more favourable outcome. The major factors in assessing both issues were security/logistical issues and the opportunity cost of providing IVF treatment at Castles’ preferred provider. A correct rights-limits analysis would have balanced these against the nature of the rights at stake.[111] The HRC has stated that section 22 rights are ‘fundamental and universally applicable’ in nature, and that ‘the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party’.[112] Logistics, security and resources are not an excuse for undermining rights of this magnitude.

Regarding the latter, because Castles was a Charter-inspired decision, Emerton J was able to defer to the judgment of corrections management, and rely on security and resource allocation issues.[113] If Castles was a Charter-based decision, security-logistical issues and the lack of resources would not have justified a violation of rights. The HRC has made this clear;[114] the ACT Human Rights Commission observed that ‘inhumane treatment cannot be justified on the grounds of lack of resources or financial difficulties’;[115] and the ECtHR held that a State must ‘organise its penitentiary system ... to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties’.[116]

The impact of VCA Momcilovic on Justice Emerton’s conclusions should also be considered. Her Honour made explicit reference to VCA Momcilovic when construing the necessity aspect of section 47(1). Her Honour’s view that IVF treatment was ‘necessary’ was ‘reinforced’ by section 32(1) of the Charter ‘in the sense explained’ in VCA Momcilovic.[117] Again, VCA Momcilovic may explain why Emerton J conflated the issue of scope with the issue of limits. Whether the VCA Momcilovic method is still good law post-HCA Momcilovic will be discussed below.

For current purposes, Justice Emerton’s reasoning highlights difficulties in applying the VCA Momcilovic method. The section 7(2) test of reasonableness and justifiability, and the relevant factors that shape the proportionality analysis, are not meant to be considered when interpreting section 47(1) under step one of the VCA Momcilovic method.[118] However, coming to an ‘interpretation which least infringes Charter rights’[119] involves an assessment of the interpretative options available, an acknowledgement of ‘how much’ each interpretative option limits rights, and a reckoning of which ‘least’ limits rights.[120] Limits analysis must occur under step one, but it is not structured or tempered by the legislatively sanctioned section 7(2) tests and factors, which is supposedly relevant at step three. The section 7(2) factors ensure the consistent application of limitations, and provide transparency and accountability for rights-limiting decisions, which the VCA Momcilovic method tends to undermine and mask respectively.

Castles represents the pinnacle for prisoners’ Charter jurisprudence to date, despite the rights-weaknesses of the decision: the Charter merely ‘confirmed’ and ‘reinforced’ the ordinary interpretation of section 47(1)(f) of the Corrections Act;[121] the rights were interpreted narrowly; and the limitations inherent in the loss of liberty were accommodated by reducing the scope of the right in section 22 of the Charter rather than via section 7(2) analysis.

B Weaven: Charter Under-enforcement

Cursory examination of Corrections Act section 47(1) was afforded in Weaven v Secretary, Department of Justice (‘Weaven’),[122] which concerned the right to food that is adequate to maintain health, and access to reasonable

medical care and treatment.[123] Justice Macaulay considered the factual claims, and concluded that presently the Secretary was not failing to discharge her section 47(1) duties to Weaven.[124] In a judgment of 39 paragraphs, Macaulay J dedicated one paragraph to the Charter, stating:

In case it is doubted, I have considered the impact, if any, of the human right of humane treatment for persons deprived of liberty [under the Charter]. The interpretation of the rights in s 47 of the Corrections Act, compatibly with that human right, does not alter my analysis in the particular circumstances of this case.[125]

Some analysis of the scope and content of the right under section 22 of the Charter, and its compatibility with the rights under section 47(1) of the Corrections Act, would have been instructive. A discussion of why section 22 of the Charter did not alter the limitations analysis in the particular case would have been illuminating. Without both, despite statements to the contrary, one is indeed left ‘doubting’. It is impossible to divine why the Charter was cursorily dismissed, particularly given its thorough consideration in Castles. Weaven

post-dates the Momcilovic decisions:[126] the uncertainty surrounding Charter enforcement mechanisms resulting from these decisions may explain why judges are avoiding in-depth analysis.


Decisions about the placement of prisoners arise in many contexts, including when prisoners are held on remand and unconvicted; when they require secure detention but are found not guilty due to mental impairment; when they are allocated based on security ratings; and when they are segregated for security reasons or punishment. Charter rights are relevant to decisions about placement. However, the Charter has had little impact on such decisions. Re Major Review of Derek Ernest Percy Pursuant to the Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 (‘Percy Review’)[127] provides a case study. There are numerous rights-based arguments that should have attracted Charter analysis but did not. Courts and practitioners should consult comparative jurisprudence to identify the most pertinent rights in issue and seek guidance on balancing competing interests with those rights under the Charter.

A Percy Review: Charter Mis-enforcement

1 The Background

In 1970, Percy was found not guilty of murdering a 12-year-old girl on the grounds of insanity, and detained at the Governor’s pleasure. This detention continued until 1998, when the Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 (Vic) (‘CMIUTA’) came into effect, under which Percy was deemed to be subject to a custodial supervision order.[128] Percy was a suspect in other child murders throughout the 1960s and 1970s, but refused to admit anything, and died in 2013 while still in detention under the CMIUTA.[129]

Under section 35(1) of the CMIUTA, major reviews of custodial supervision orders occur every five years after the expiry of the nominal term of the order.[130] Under section 35(3), the court must vary a custodial supervision order to a non-custodial supervision order ‘unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order’; and ‘if so satisfied’, the court ‘must confirm the order or vary the place of custody’. The issue was not that a non-custodial supervision order was suitable, but that Percy’s custody should be varied from Corrections Victoria to the Victorian Institute of Forensic Mental Health (‘Forensicare’).

This was Percy’s third review.[131] Between his second and third reviews, Percy made some efforts at rehabilitation. Percy was transferred to Ararat

Prison to facilitate ‘individual-based treatment’ under the Sex Offender Programme. He completed 25 sessions from May 2004 to January 2005, with the sessions described as ‘reasonably positive’ and ‘the reviewee was making some progress’.[132] Treatment ceased in early 2005 when he was transferred to Port Phillip Prison, and then to Barwon Prison in December 2005,[133] because of investigations into unsolved murders.[134] In February 2006, Percy was visited by a psychologist, but he declined treatment ‘on the basis that the other criminal matters had not been resolved, that his placement was uncertain and [the original psychologist], with whom he had built a rapport, had left the Department’.[135]

Expert forensic opinion highlighted that Percy was ‘the sole person in Victoria who was found Not Guilty by Reason of Insanity ... to be held

in custody in prison’.[136] It was acknowledged that ‘not very much is known clinically about the reviewee, notwithstanding that he has been in custody in excess of 40 years’.[137] It was conceded that Percy did ‘not require the facilities of the Thomas Embling Hospital for any conventional psychiatric treatment for mental illness’, but that Forensicare had ‘the resources and capacity to provide Mr Percy with the level of treatment required to address the matters pertaining to his sexual offending’.[138] Percy supported the transfer ‘if it [was] permanent’.[139] Expert opinion recommended ‘an ongoing period of treatment’ ideally occurring ‘in a therapeutic environment as that offered by the Thomas Embling Hospital or Marngoneat Prison’.[140]

2 Section 22(2) Segregated Detention

Justice Coghlan recognised that section 32(1) of the Charter applied and sought to ‘interpret’ the CMIUTA ‘in a way compatible with human rights’.[141] There was no reference to VCA Momcilovic, which was delivered two-weeks before this judgment.[142]

Percy claimed that his detention in a maximum-security prison for over 40 years violated section 22(2), which provides that ‘[a]n accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary’;[143] and that the public authorities[144] had not proven that there was not a less restrictive alternative for the protection of the community than imprisonment under section 7(2)(e).[145] Section 22(2) falls within the broader right to be treated with humanity and dignity when deprived of liberty.

The Attorney-General submitted that Charter rights and limitations had been accommodated under section 39 of the CMIUTA, which provides ‘[i]n deciding whether to make, vary or revoke a supervision order ... the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’.[146] Without any analysis or reasoning, Coghlan J stated: ‘I am persuaded by that argument. I will act in accordance with s 39. In doing so I recognise the human rights of the reviewee and have regard to them’.[147] His Honour continued: ‘On the other hand, even if it were accepted that ... s 35(1)(b) ... did impugn ... s 22 of the Charter, in carrying out the balancing exercise required by s 7 of the Charter the presence of s 39 in the Act leads me to the same conclusion’.[148]

3 Absence of Reasoning

This assessment of the law may be based on rational reasoning, but it is absent from the judgment. There was no discussion about the general scope of section 22(2) of the Charter, what it specifically requires, and whether Percy’s treatment by prison authorities was compatible with section 22(2) under section 38 of the Charter. Similarly, there was no discussion about whether the CMIUTA violates section 22(2) of the Charter and, if so, whether the CMIUTA satisfies the reasonable and justifiable tests in section 7(2) of the Charter.

Moreover, minimum impairment under section 39 of the CMIUTA addressed only one aspect of section 7(2) (being s 7(2)(e)), which also required analysis of the importance of the right (section 7(2)(a)), the purpose of the limitation (section 7(2)(b)), the nature and extent of the limitation (section 7(2)(c)), and the relationship between the limit and its purpose (section 7(2)(d)). All five factors are relevant when properly assessing section 39 of the CMIUTA against the overarching section 7(2) considerations of reasonableness and justification. Let us explore how section 7(2) might have influenced the decision.

First, section 7(2)(a) of the Charter focuses on different issues to section 39 of the CMIUTA. Section 7(2)(a) requires an examination of the importance of the right, which requires consideration of the section 22 right to humane treatment in detention – in particular, segregating convicted detainees from unconvicted detainees. These are different to considerations of personal freedom and autonomy under section 39 of the CMIUTA. Moreover, failure to identify the correct right at risk skews the limitations analysis. The overarching balancing exercise under section 7(2) requires an assessment of the reasonableness (that is, a legitimate legislative objective) and justifiability (that is, proportionality between the harm done to the right in pursuit of the legitimate legislative objective, compared to the importance, nature and extent of the limitation) of the limit, with sub-paragraphs (a)–(e) informing this overarching test. In the Percy Review, this analysis was nonsensical because the correct right was not identified and not part of the balancing matrix. The question was not about balancing autonomy and freedom against the limitation, but rather balancing humane treatment by way of segregated detention against the limitation.

Secondly, one must then query the section 7(2)(e) assessment. The variation of the custodial order should have centred on the humanity of not segregating the convicted from those not convicted while in detention, not on freedom and personal autonomy. This case was not about whether a custodial or non-custodial order was preferred, which would impact on freedom and autonomy; but rather the place of detention under a custodial order, which impacts on humane treatment in detention, including the right of those not convicted to be segregated from those convicted. Reference to section 39 did not address the crux of the issue.

Thirdly, no consideration was given to the purpose of the limitation (section 7(2)(b)) as it impacted on section 22(2). Without identifying the purpose underlying the limitation, many aspects of section 7(2) analysis cannot proceed: it is impossible to balance the purpose underlying the right (section 7(2)(a)) against the importance of the purpose underlying the limitation to the right (section 7(2)(b)); an assessment of the rational connection between the legislative purpose and the legislative means chosen to pursue that purpose (section 7(2)(d)) cannot be made; a decision on whether ‘less restrictive means [are] reasonably available to achieve the purpose that the limitation seeks to achieve’ (section 7(2)(e)) is impossible; and the overarching proportionality assessment of reasonableness and justifiability cannot occur.

The purposes provision of the CMIUTA does not elucidate the purpose underlying section 39, relevantly providing in section 1(c) that the Act’s purpose is ‘to provide new procedures for dealing with people ... who are found not guilty because of mental impairment’. Section 39 is in part 6 of the CMIUTA, entitled ‘Principles on Which Court Is To Act, Reports and Certificates’, which does not illuminate anything. In the absence of other indicators, the purpose must be drawn from the provisions themselves. Section 39 indicates that a balance must be achieved between a person’s freedom and autonomy, and the safety of the community. Section 40 clarifies by requiring the court to have regard to:

(a) the nature of the person’s mental impairment or other condition or disability; and

(b) the relationship between the impairment, condition or disability and the offending conduct; and

(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and

(d) the need to protect people from such danger; and

(e) whether there are adequate resources available for the treatment and support of the person in the community; and

(f) any other matters the court thinks relevant.

The Explanatory Memorandum describes section 39 as setting out ‘the overriding principle’ that the court must apply when considering varying an order, and section 40 as setting out ‘the matters to which the court must have regard in deciding whether or not to ... vary ... an order’.[149] Overall, the purposes underlying sections 39 and 40 are strongly in favour of protecting individuals and the community from danger.

Exploring how this impacted on Justice Coghlan’s analysis uncovers deficiencies. The section 40 factors clearly elaborate on section 39 and the underlying purpose of the limitation, yet the factors were not expressly considered by Coghlan J when assessing whether rights under section 22(2) of the Charter were justifiably violated. The underlying purposes expressed in sections 40(c) and (d) of the CMIUTA – whether Percy was a danger to another person and other people generally, and the need to protect others from such danger – were relevant factors to his place of detention. Whether these factors would have swayed the balancing process in favour of detaining Percy with those convicted of offences, or in favour of detaining him in a secure therapeutic environment, was never assessed. Moreover, the majority of factors in section 40 focused on switching to non-custodial supervision orders, rather than variations to placement under custodial supervision orders to secure more appropriate conditions of detention – the latter being the essence of Percy’s review. With no clear direction in the legislation, Coghlan J had few restrictions on the matters that his Honour could have considered relevant under section 40(f) – particularly, factors that were germane to the place of custody, rather than the custodial versus non-custodial factors that dominate in section 40 (a)–(e). Further, if consideration were given to the relationship between the limit to Percy’s humane treatment (detention in an unsuitable facility) and its purpose (protecting the safety of the community), a rational connection between the two might not have been found.

Fourthly, the nature and extent of the limitation on the right (section 7(2)(c)) were not assessed by Coghlan J. Nothing in sections 39 and 40 of the CMIUTA addresses the placement of a detainee if subject to a custodial supervision order. There was no consideration of the type of custodial setting, and how this impacted on the nature and extent of the limitation on Percy’s rights under section 22(2) of the Charter. Detention in a prison totally undermined the right not to be segregated from convicted persons, but the nature and extent of this limitation was not considered.

4 Applying the CMIUTA

Returning to the application of sections 35(3) and 39 of the CMIUTA, Coghlan J confirmed the order and declined to vary the place of custody.[150] His Honour considered the section 40 factors, but found they did not support Percy’s case.[151] Instead, the matter was resolved under section 26(4) of the CMIUTA, which provides that the ‘court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances’. This provision addressed the crux of Percy’s claim under section 22(2) of the Charter, yet it was not explored in terms of the Charter. When Coghlan J sought to ‘interpret the provisions of the Act in a way compatible with human rights’,[152] why was section 26(4) of the CMIUTA not part of the analysis alongside sections 35, 39 and 40? Many of the difficulties with assessing the section 7(2) reasonableness and justification of violating section 22(2) of the Charter stem from the fact that sections 39 and 40 of the CMIUTA did not address the crux of the issue; and yet the provision that did address the place of custody was ignored in the statutory interpretation process.

Based on section 26(4), it was argued that if Percy had been found not guilty on the basis of mental impairment today, he would be admitted to Thomas Embling Hospital. Justice Coghlan recognised ‘that this is the practical reality, but it does not accord with the legal position in Victoria’,[153] although his Honour did ‘have regard to the proposition that ... a person in like position to the reviewee would be detained in a hospital’.[154] Justice Coghlan also recognised

that the fact that Percy is the only person found not guilty due to mental impairment being detained in prison was ‘an important consideration’,[155] but not determinative. If the link between section 26(4) of the CMIUTA and section 22(2) of the Charter were made, more weight could have been given to these two factors. Indeed, section 22(2) required segregation of the convicted from the non-convicted, and section 26(4) supported this.

Justice Coghlan balanced the advantages[156] and disadvantages[157] of the competing places of detention. On balance, Coghlan J was ‘not satisfied that ... detention of the reviewee in Thomas Embling Hospital would be less restrictive than being held in a prison’,[158] based on Percy not being detained in maximum security in prison. Nor was his Honour ‘satisfied that ... the quality of the treatment to be provided at Thomas Embling Hospital would be more advantageous to the reviewee than that ... available in the prison system, particularly at Marngoneet’.[159]

Justice Coghlan’s application of the law as per his Honour’s interpretation was balanced, as evidenced by such comments as ‘what in the long [term] be in the best interests of the reviewee and ultimately the community’.[160] However, had deeper analysis of the Charter implications for the CMIUTA been undertaken, the questions being identified and explored, and the legal tests being applied, in the case would have been more favourable to Percy.[161]

B R v White: Pre-Charter Reliance

Placement issues also arose in R v White.[162] White was found not guilty of murder on the grounds of mental impairment under the CMIUTA on 5 March 2007. Since his arrest in 2005, White had been held in custody. Despite the intention to detain White at the Thomas Embling Hospital, no bed would be available for 8–10 weeks, such that White continued to be detained in prison. Although this case pre-dates the judicial powers under the Charter, Bongiorno J held:

It is not appropriate for people who have been found not guilty on the ground of mental impairment to be imprisoned. He has no moral or legal culpability in respect of Mr Hatton’s death. He is ill and should be treated as such. It is not insignificant that his continued incarceration in a prison would appear to be contrary to the spirit, if not the letter of the Charter ...[163]

Ultimately Bongiorno J had no option but to remand White in prison because the resources of the State prevented more appropriate accommodation, but his Honour highlighted that ‘[t]his state of affairs is unsatisfactory and ought to be looked to by the executive as a matter of some urgency’, noting that this ‘is not the first time this situation has arisen’.[164]

C Comparative Jurisprudence

Rights arguments regarding the place of detention have received much attention in comparative jurisdictions – including rights relating to the separation of those convicted from those not convicted, the proper placement of

people found not guilty because of mental impairment, the proper treatment of prisoners with mental illness, and the use of segregation.[165] This jurisprudence ought to influence Victorian cases, such as the Percy Review and R v White – section 32(2) of the Charter permits reference to comparative jurisprudence,[166] and such cases provide useful comparative guidance.[167]

Although section 22(2) of the Charter reflects the full scope of article 10(2) of the ICCPR,[168] the HRC has not addressed the issue of persons not convicted because of unfitness to be tried.[169] Given this, analysis will start with comparative jurisprudence under the ECHR.


The ECHR does not contain a right for unconvicted persons to be

segregated from convicted persons while in detention.[170] Under the ECHR, Percy’s scenario would be argued under articles 3, 5 and 7. There is useful comparative jurisprudence relating to violations of article 3,[171] both in relation to torture,[172] and inhuman and degrading treatment.[173] However, our focus will be article 5(1)(e), which provides that no one shall be deprived of their liberty except for the ‘lawful detention ... of persons of unsound mind’; and article 7(1), which provides that no ‘heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed’. This comparative jurisprudence could have influenced the Percy Review and R v White, and ought to benefit future cases.

2 Preventative Detention

(a) Background to Glien v Germany

In 1997, Glien was convicted of sexually abusing children, sentenced to four years’ imprisonment, and his preventative detention was ordered under the Strafgesetzbuch [Criminal Code] (Germany) (‘German Criminal Code’).[174] The applicant was diagnosed ‘with a sexual deviation with paedophile and masochist elements which was not so severe as to be pathological’, and accordingly ‘had acted with full criminal responsibility’.[175]

After serving his full sentence, Glien was held in preventative detention in a prison in October 2001, subject to regular reviews. The German Criminal Code in force at the time of Glien’s offences and convictions only allowed preventative detention for 10 years.[176] In 1998, the German Criminal Code was amended such that if preventative detention for 10 years is reached, ‘the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims’.[177]

(b) Before the German Courts

In separate proceedings, on 4 May 2011 the Federal Constitutional Court of Germany (‘FCC’) held that the 1998 retrospective prolongation and retrospective ordering of preventative detention was incompatible with Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] for being incompatible with the article 5 right to liberty of those preventatively detained.[178] The FCC held that any prolongation of detention beyond 10 years must be consistent with article 5(1)(e), with ECtHR jurisprudence indicating that detention as a mental health patient is only lawful ‘if effected in a hospital, clinic or other appropriate institution’.[179]

The FCC considered that preventative detention per se did not violate the article 7 ban on the retrospective application of the criminal law because it ‘was a measure of correction and prevention’ and ‘not aimed at punishing criminal guilt’.[180] It was influenced by M v Germany.[181] In M v Germany, the ECtHR highlighted the need for ‘a difference between preventive detention and detention for serving a term of imprisonment’;[182] and ‘an individualised and intensified offer of therapy and care’ to detainees to avoid article 7 violations.[183] The FCC held that ‘it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success’.[184]

The FCC ordered that the provisions be applied until new legislation was enacted,[185] subject to an interim review process for all retrospective detainees, which embodied a strict proportionality test.[186] Glien sought release under the interim process,[187] and the Regional Court held that the ‘applicant’s continued preventive detention was ... proportionate’.[188]

(c) Before the ECtHR[189]

Before the ECtHR, Glien claimed that his preventative detention violated articles 5(1)(e) and 7(1) of the ECHR. For deprivation of liberty to be lawful under article 5(1)(e), ‘there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention’,[190] such that detention of a person of unsound mind is lawful only if effected in a hospital, clinic or other appropriate institution.[191] Glien’s case turned on whether detention in a prison was the appropriate placement.[192]

The ECtHR noted that Glien was detained in a separate wing of the prison that was dedicated to persons in preventative detention and had not received any therapy since 2005: Glien undertook one year of treatment, which was discontinued because he ‘kept justifying his offences, denied any paedophile behaviour and lacked empathy’.[193] It also noted the differences between Glien’s treatment in preventative detention and his treatment in prison.[194] The ECtHR was, ‘however, not persuaded that the applicant ha[d] been offered the therapeutic environment appropriate for a person detained as a mental

health patient’.[195] The fact that Glien’s conduct led to the discontinuance of the treatment

does not exempt the domestic authorities from providing persons detained (solely) as mental health patients with a medical and therapeutic environment appropriate for their condition ... It can be reasonably assumed that such an environment would be more suited for motivating these persons to participate in treatment aimed at changing their condition.[196]

The ECtHR highlighted that the authorities were not limited to a binary decision between preventative detention in prison or release, but rather had numerous alternatives for Glien’s detention, including transfer to a psychiatric hospital under the German Criminal Code or civil detention under the Therapy Detention Act.[197] The ECtHR found that Glien’s detention was not justified under section 5(1)(e) and that his right to liberty was violated.[198]

(d) Lessons for Percy’s Review

There are differences between the Percy Review and Glien v Germany. First, Percy was not found to be criminally responsible whereas Glien was. Secondly, Percy was willing to undertake treatment and had demonstrated progress during treatment, whereas Glien was not willing or cooperative with treatment. Both of these differences suggest that Percy was more suited to detention in a non-prison setting than Glien.

Although there was a change to the preventative detention regime for both, the third difference is that Percy’s detention was indefinite and remained indefinite after the changes, whereas Glien’s detention changed from a definite 10-year maximum to indefinite detention. This difference is inconsequential because the basis of the article 5(1)(e) violation was the place of detention, not its duration.[199]

The fourth difference is the rights relied on. Percy relied on the right of the unconvicted to be segregated from those convicted under section 22(2) of the Charter. A more fruitful argument may have centred on section 21(1) which states ‘[e]very person has the right to liberty and security’, and section 21(3) which states that ‘[a] person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law’. Sections 21(1) and (3) are equivalent to article 5(1) of the ECHR and its sub-paragraph (e) exception. Article 5(1) states the broad right to liberty like section 21(1), and the article 5(1) sub-paragraphs list the exceptions to the right to liberty like section 21(3). The ECHR lists the exceptional ‘grounds’ when liberty may be deprived, including where a person is of ‘unsound mind’, whereas the Charter leaves the ‘grounds’ open.[200]

ECtHR jurisprudence could have usefully influenced the interpretation of sections 35, 39 and 40, and section 26(4) of the CMIUTA.[201] First, the ECtHR noted that alternative detention powers were available in Glien v Germany – particularly, the German Criminal Code allowed a court to transfer a person subject to preventative detention ‘to a psychiatric hospital ... if the person’s reintegration into society can be better promoted thereby’.[202] Percy was subject to preventative detention. The best custodial setting for the promotion of Percy’s reintegration into society was central to his case. On the evidence, it was conceded that Percy did not need conventional psychiatric treatment for a mental illness, just as Glien did not; but that Forensicare ‘ha[d] the resources and capacity to provide Mr Percy with the level of treatment required to address the matters pertaining to his sexual offending’,[203] and the experts recommended ‘an ongoing period of treatment’ ideally occurring ‘in a therapeutic environment’.[204] These section 21 rights considerations, and the section 26(4) directive that custody ought not to be in a prison unless there is no practicable alternative, support a variation of Percy’s placement.

Secondly, the ECtHR distinguishes between preventative detention and its aim for correction and prevention, and imprisonment which aims at punishing for criminal guilt. The ECtHR held that preventative detention should be characterised by an ‘individualised and intensified offer of therapy and care’.[205] The FCC developed this, holding that ‘it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success’.[206] Percy was in custody for preventative detention, not punishment. Percy had been in prison for 40 years, with little sustained progress toward correction and prevention of his behaviours.[207] The European and German jurisprudence support moving Percy from prison to a therapeutic setting, and this was reinforced under the CMIUTA, particularly section 26(4).

Thirdly, the ECtHR held that there ‘must be some relationship between the ground of permitted deprivation of liberty ... and the place ... of detention’,[208] such that detention of a person of unsound mind is lawful only if effected in a hospital, clinic or other appropriate institution. Equivalently, if the grounds for and place of detention are not linked, the detention cannot be considered lawful under section 21(3) of the Charter. The immediate ground for continued custody was that Percy did not satisfy the test under section 35(3) of the CMIUTA regarding seriously endangering members of the public. Two lines of reasoning follow.

We can consider the application of the test per se, focusing on sections 39, 40 and 26(4). Whether one approaches Percy as having a mental impairment or other condition, it was agreed that a therapeutic environment was best given the nature of his condition (section 40(1)(a)). Moreover, considering the relationship between the mental impairment or condition and the offending conduct, Percy had been found not guilty because of insanity (section 40(1)(b)). This supports placement in a therapeutic rather than penal environment. Another factor concerns the adequacy of resources for treatment and support in a non-custodial environment (section 40(1)(e)), with a catch-all factor allowing consideration of any other matters the court thinks relevant (section 40(1)(f)). Reading sections 40(1)(e) and (f) together, consideration of the adequacy of resources for treatment and support within a custodial environment ought to be relevant, with the expert evidence supporting treatment in a therapeutic environment. Further, section 26(4) is an instantiation of the ECtHR principle: section 26(4) acknowledges that a supervision order for a person found to be mentally impaired or unfit to be tried must not occur in a prison setting because the ground of the deprivation of liberty and the place of custody are not rationally connected. These factors point to detention in a therapeutic environment.

Alternatively, we can focus on the place of custody, given that a custodial versus non-custodial order was not the crux of the review. If ECrtHR-type scrutiny were applied to the relationship between the grounds for the permitted deprivation and the place of detention, greater weight would have been given to two key facts of the case. The first fact was that had Percy been found not guilty on the basis of mental impairment today, he would be admitted to Thomas Embling Hospital. The second fact was that Percy was the only person found not guilty by reason of mental impairment being detained in prison. It is arbitrary and thus unlawful under section 21(3) of the Charter to detach the basis for Percy’s detention (his mental impairment leading to unfitness for trial) from his place of detention (a non-therapeutic environment).

Fourthly, the ECtHR held that preventative detention in a separate prison wing was not ‘the therapeutic environment appropriate for a person detained as a mental health patient’,[209] which undermines Percy’s placement at Marngoneat. Moreover, the ECtHR ‘assumed that [a therapeutic] environment would be more suited for motivating these persons to participate in treatment aimed at changing their condition’.[210] There was evidence that this was true for Percy – he was in favour of the transfer if it was permanent.

The ECtHR jurisprudence would have influenced the application of section 39 of the CMIUTA, particularly by allowing broader considerations under sections 40(1)(f) and 26(4). This was a lost opportunity to fully explore the rights implications of Percy’s continued detention in prison.

3 Prison vs Mental Health Facilities

Regarding R v White, there is comparative jurisprudence resolving placement issues, which should influence Victorian practice.

(a) ECtHR: Aerts v Belgium[211]

Aerts killed his ex-wife, and in November 1992 was held in detention pending trial. On 15 January 1993, a Belgian court[212] imposed a detention order on Aerts under the Loi du 1 juillet 1984 de défense sociale à l’égard des anormaux et des délinquants d’habitude [Law of 1 July 1984 for the Protection of Society against Mental Defectives and Incorrigible Offenders] (Belgium) [European Court of Human Rights trans], after an assessment that Aerts ‘had been severely mentally disturbed, to the point where he was incapable of controlling his actions’.[213] Pending designation of a mental health institution by the Mental Health Board, Aerts was held in the psychiatric wing of a prison. On 22 March 1993, the Board designated a social care centre for Aerts, but there were no places for seven months, with his transfer occurring on 27 October 1993.[214]

The ECtHR considered whether provisional detention in the prison psychiatric ward was lawful given the purpose of the detention. The ECtHR reiterated that detention for persons of unsound mind can only be lawful ‘if effected in a hospital, clinic or other appropriate institution’,[215] and that the prison psychiatric ward could not be regarded appropriate because Aerts did not receive ‘regular medical attention or a therapeutic environment’.[216] The ECtHR made reference to the Board’s opinion in August 1993 ‘that the situation was harmful to the applicant, who was not receiving the treatment required by the condition that had given rise to his detention’.[217] The ECtHR found a violation of article 5(1).[218]

(b) ECtHR: Morsink v The Netherlands[219]

Morsink was convicted of assault and assault occasioning grievous bodily harm. In sentencing him, the court found that Morsink ‘was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree’.[220] Accordingly, Morsink was sentenced to 15 months’ imprisonment (for that which he was criminally responsible) and confinement in a custodial clinic (for that which he was not criminally responsible), referred to as a ‘TBS order’.[221] The purpose of a TBS order is not punitive, but is to protect society from any risk posed by the detainee. Under TBS orders, a distinction is drawn between care and treatment: care is aimed at confining the detainee to a secure facility in order to protect society; while treatment is aimed at reducing the detainee’s danger and preventing recidivism.[222] The legislation requires a person to be placed in a custodial clinic within six months of the TBS order.[223]

Morsink spent 15 months in ‘pre-placement detention’: after serving his prison sentence and before his TBS placement, he ‘remain[ed] without treatment in a remand centre’.[224] The relationship between the purpose of detention (treatment in a custodial clinic to reduce his danger and risk of recidivism) and the place of detention (remand without treatment) was argued to infringe article 5(1)(e).[225] The ECtHR, ‘bearing in mind that the problem of a structural lack of capacity in custodial clinics had been identified by the ... authorities as early as 1986’, found a delay of 15 months not ‘acceptable’ and in violation of article 5(1).[226]

4 Lessons for R v White

White had to wait 8–10 weeks after the court ordered his transfer from prison to Thomas Embling Hospital, which is significantly shorter than Aerts and Morsink. However, White had been held in custody from his arrest in 2005 until being found not guilty by grounds of mental impairments on 5 March 2007. Moreover, in R v White and other public reports,[227] the lack of infrastructure regarding detainees with mental health issues has been identified, with little change in capacity. Despite the Charter and influential comparative jurisprudence, the courts ‘continue ... to maintain a “hands off” approach to prison management and to the allocation of resources’.[228]


Conditions of detention have been successfully argued as a basis for reducing prison sentences. From a rights-based perspective, this makes sense – except remarkably, the Charter has not been relied on as the basis for reducing sentences, despite ample comparative jurisprudence in support.[229]

A Victorian Decisions

1 Foster: Charter Non-enforcement

In Director of Public Prosecutions (Vic) v Foster (‘Foster’),[230] five prisoners at Melbourne Remand Centre participated in a riot, resulting in some minor physical injuries to staff and property damage.[231] In sentencing remarks, Judge Gucciardo observed that four of the five prisoners had been in lockdown

for significant periods of time. For example, Liszczak[232] had been in 23-hour lockdown, with one-hour to walk outside with officers while handcuffed, for 16 months. For the previous two months, Liszczak was in 22-hour lockdown, with run-outs twice a day, with some contact with prisoners.

Judge Gucciardo noted the consultant forensic psychologist’s report addressed ‘matters which give rise to serious concerns about such prolonged periods of what is, in effect, solitary confinement’.[233] The judge also noted the confinement ‘occurred during a developmentally very significant period of

[his] life’, such that it is ‘likely to have a lasting impact on [his] view of [him]self and society’.[234] His Honour concluded that the nature of Liszczak’s incarceration must be taken into account.[235] The conditions of detention necessitated a reduction in sentence,

reflecting the fact that those periods have not been spent in more conventional prison conditions but in situations which [the judge] consider[ed] of great deprivation for periods of time which are not only difficult to accept, but which could be potentially harmful, particularly to prisoners’ mental health’.[236]

The judge also warned that an Ombudsman report:

should sound serious warning bells for those who administer Corrections about the prolonged use of such placement with its potential for exacerbating mental illness and the proclivity for a life of crime. ... [T]he worthy need and obligation to attempt to rehabilitate young people is damaged substantially by such long term confinement. I can see it serving no worthy purpose except to punish and degrade, an intent which after a period of time borders on the cruel and inhumane.[237]

This decision is not remarkable for its concern about conditions of detention, or the reduction in sentence. Rather, it is remarkable because there was no mention of the Charter. The judge essentially recognised that the conditions of detention bordered on a violation of the section 10 right to be free from cruel, inhuman or degrading treatment or punishment and the section 22 right to humane treatment when deprived of liberty, yet there was no reference to the Charter. The HRC has long confirmed that ‘prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7’.[238]

2 Collins v The Queen: Charter Non-enforcement

Another example is Collins v The Queen.[239] Collins was ‘locked in his cell, alone, for almost 23 hours per day, seven days per week’.[240] He could see and speak to other prisoners for 30 minutes per day in the telephone centre, where he could talk to those he telephoned and four other prisoners in the day room, but he could not mingle with them.

Collins was held in these conditions because prisoners were speculating that he was a police informer. In November 2011, an incident resulted in Collins receiving a black eye. Collins claimed he slipped in the shower, but prison authorities assumed the injury was from a prisoner–prisoner assault. Collins was ‘unwilling or unable to identify the prisoners who [might] have threatened him’, so prison management were not ‘able to identify suitable prisoners that he

could mix with’[241] – hence Collins’ placement in the management unit. These conditions were likely to continue indefinitely.[242] Collins requested ‘the harshness of [his] prison conditions ... be taken into account in assessing the appropriateness of the non-parole period’ of his sentence.[243]

Justice Hansen observed that Collins is ‘serving his sentence in circumstances of significant confinement which ... do not seem justly sustainable over time’.[244] His Honour held that, at present,

there appears [to be] justification for the prison authorities’ view that [Collins] may be at risk if he mixes with other prisoners. That is particularly so given that the safe mixing of prisoners is a matter which depends largely on the appellant’s cooperation, which has not been forthcoming.[245]

However, his Honour was ‘not persuaded that the hardship inherent in the appellant’s present arrangements’[246] resulted in a manifestly excessive sentence or warranted appellant intervention.

Chief Justice Warren and Redlich JA agreed with Justice of Appeal Hansen’s reasoning and decision, and offered additional observations on Collins’ conditions of detention, which their Honours described as ‘very difficult’.[247] Their Honours acknowledged that ‘corrections authorities cannot be criticised for taking precautions to protect vulnerable prisoners’,[248] and that Collins ‘is to some extent responsible for his predicament’.[249] Their Honours noted that

the Court asked the appellant’s counsel whether he was making any submissions based on the Charter ... Counsel expressly disavowed any reliance on the Charter. It is therefore unnecessary to consider whether the Charter has any effect on the legality of the continued detention of the appellant in the present conditions.[250]

The basis for the decision of Collins and his counsel not to pursue the Charter is not known. However, Collins had an arguable Charter case, which the bench recognised and sought to prompt. Indeed, rights jurisprudence is relevant to both Collins v The Queen and Foster. Both cases represent missed opportunities to avail prisoners of the benefit of rights jurisprudence, as illustrated below.[251] Moreover, both cases were decided after VCA Momcilovic and HCA Momcilovic, with the uncertain state of the law potentially having a chilling effect on Charter arguments.

B Comparative Jurisprudence


In Brough v Australia,[252] the HRC found that Australia violated article 10 of the ICCPR[253] because of the conditions of imprisonment of a 16-year-old Aboriginal boy with a mild intellectual disability. Brough was transferred from a juvenile prison to an adult prison after participating in a riot at the juvenile prison. At the adult prison, Brough was segregated from other prisoners.[254] After

a psychological assessment, Brough was placed in a ‘safe cell’[255] within the segregation area. At times, Brough was subjected to 72 hours’ confinement with lights on day and night, and periods where his clothes, blankets and pillow were removed from his cell, mainly for the purpose of ensuring his safety.[256] The HRC concluded:

Even assuming that the author’s confinement to a safe or dry cell was intended to maintain prison order or to protect him from further self-harm ... the Committee considers that the measure [was] incompatible with the requirements of article 10. [Article 10(3) read with article 24(1) of the ICCPR require the] State party ... to accord the author treatment appropriate to his age and legal status. In the circumstances, the author’s extended confinement to an isolated cell without any possibility of communication, combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket, was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal. As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and his suicide attempt.[257]

The HRC found violations of article 10(1) which requires all persons deprived of their liberty to be treated with humanity and respect for their inherent dignity, and article 10(3) which requires juvenile offenders to ‘be accorded treatment appropriate to their age and legal status’.

There are differences between Brough v Australia on the one hand, and Collins v The Queen and Foster on the other, but there are similarities which would have strengthened rights-based arguments in the latter cases. Regarding Collins v The Queen, the fact that segregation was intended to protect the prisoner and maintain order alone did not justify the inhuman treatment of Brough, and nor should it have justified the treatment of Collins. Moreover, Brough and Collins shared a vulnerability factor: age. Brough’s status as a juvenile was an influential factor. Collins’ advanced age of 66 years was in issue as a vulnerability factor, yet this was not considered in rights-terms.[258]

Age was also relevant in Foster. Although the applicants in Foster were between 18 and 20 years of age at the time of the offence, and between 19 and 22 years of age at the date of sentencing, Judge Gucciardo was concerned about their treatment ‘during a developmentally very significant period’ of their lives, and undermining rehabilitation of the young by such long-term confinement.[259] His Honour arguably went further than the HRC in noting the obligation to rehabilitate offenders and the undermining of that aim by use of solitary confinement.


The ECtHR has found violations of rights based on solitary confinement.[260] In X v Turkey,[261] X was placed in a shared cell with heterosexual inmates. Because of his sexual orientation, X requested to be transferred to another cell with homosexual inmates because he ‘had been intimidated and bullied by his fellow inmates’.[262] X was placed in an individual cell on his own, being a type of cell used for solitary confinement as a disciplinary measure, or for inmates accused of rape or paedophilia. He was deprived of contact with other inmates and social activity, and only allowed out of the cell to see his lawyer or attend court hearings.[263] Across 13 months, X spent one month in a psychiatric hospital, shared his cell with another homosexual prisoner for three months, and was kept in solitary confinement for eight months and 18 days.

The ECtHR reiterated that article 3 of the ECHR ‘compels the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity’; ‘that the manner and method’ of the detention ‘do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention’; and that, ‘given the practical demands of imprisonment, his health and well-being are adequately secured’.[264] When assessing the conditions of detention, ‘regard must be had to their cumulative effects and to the applicant’s specific allegations’.[265] The ECtHR noted that various factors influence whether solitary confinement breaches article 3: ‘the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned’.[266] Regarding duration, the ECtHR carefully examined its justification, its necessity, the proportionality compared to other measures, the safeguards against arbitrariness, and ‘the measures taken by the authorities to satisfy themselves that the applicant’s physical and psychological condition allowed him to remain in isolation’.[267]

The ECtHR held that X’s ‘conditions of detention in solitary confinement were capable of causing him both mental and physical suffering and a feeling of profound violation of his human dignity,’ such that the conditions amounted to inhuman and degrading treatment.[268]

There are similarities between X v Turkey and Collins v The Queen, providing strong comparative jurisprudence for rights-based arguments. First, in both X v Turkey and Collins v The Queen, the prison authorities were concerned about the risk of physical abuse of a prisoner. In X v Turkey, the concerns were based on complaints by the prisoner, whereas in Collins v The Queen the concerns arose from an incident where the prisoner would not complain. X v Turkey, however, did not turn on the source of the safety concerns. Rather, X v Turkey turned on the need for security measures. Whether prisoner-driven or prison-driven, security concerns had to be addressed.

Secondly, X v Turkey demonstrates that security needs do not trump rights: if ‘fears made it necessary to take certain security measures to protect the applicant, [the fears] do not suffice to justify a measure totally isolating the applicant

from the other prison inmates’.[269] This reasoning applies directly to Collins v The Queen,[270] yet was not argued.

Thirdly, nothing suggests that the ECtHR would have decided differently if X was unwilling to confirm the prisoner–prisoner assault. In X v Turkey, once the safety fear was identified, action was considered necessary.[271] This pragmatic approach is necessary in a prison, where the norm is for prisoners not to identify perpetrators of violence for a myriad of reasons, including fears of reprisals. To suggest in Collins v The Queen that Collins’ subjection to the conditions of detention in protective custody was of his own making is to ignore the reality of prisons.

Fourthly, the factors identified in X v Turkey were relevant in Collins v The Queen. Justice Hansen considered whether the manner and mode of the conditions of detention exceeded the intensity inherent in detention, and the reasonableness of the objectives behind the conditions of detention. However, other factors were not addressed, including the health and wellbeing of Collins, the stringency of the measures, and the cumulative effects on Collins. In particular, factors relevant to the duration of solitary confinement would have been highly influential, given Justice of Appeal Hansen’s concession that Collins’ confinement ‘does not seem justly sustainable over time’.[272]

The Scottish decision of Shahid v Scottish Ministers (‘Shahid’)[273] outlined the conditions that must be satisfied for extended solitary confinement to not amount to a violation of article 3 of the ECHR. Like X v Turkey, there had to be ‘a proper purpose in the segregation’, such as safety concerns for the prisoner based on threats from other prisoners, or threats to good order of the prison.[274] In Foster, recall Judge Gucciardo’s view that solitary confinement ‘serv[es] no

worthy purpose except to punish and degrade, an intent which after a period

of time borders on the cruel and inhumane’.[275] Given his Honour’s sentiment, consideration of proper purpose from X v Turkey and Shadid quite conceivably could have resulted in a section 22 Charter violation had the Charter been argued in Foster.

3 New Zealand Bill of Rights

In Vogel v Attorney-General (NZ),[276] the New Zealand Court of Appeal held that the equivalent right to be treated humanely and with dignity when deprived of liberty under the NZBORA[277] cast a positive duty on the State ‘to ensure ... that the sentence was one which could safely be imposed’.[278] Assessments about safety of sentence had to be made by the State,[279] with the State not avoiding its positive duty ‘on the basis that the prisoner sought the sentence imposed’.[280]

As per Castles, Vogel v Attorney-General (NZ) reminds us that the section 22 Charter right contains a positive duty on the State regarding the safety of sentences imposed. To approach Foster and Collins v The Queen from a rights-perspective would bring this positive duty to the foreground of judicial assessment, in the context of ‘very difficult’[281] conditions of detention.

4 Queensland

In a series of cases,[282] the Supreme Court of Queensland reduced sentences for contempt of court from five months to between five and six weeks because the defendants would serve their sentences in the ‘Restricted Management Unit’ at Woodford Prison for Criminal Motorcycle Gangs, and would be subject to a ‘Restricted Management Regime’, including 22 hours’ solitary confinement per day.[283]

In Callanan v Attendee X, Applegarth J held that ‘the conditions under which a person will serve a term of imprisonment are relevant matters to be taken into account – at least where those conditions are shown to be different from, and more onerous than the conditions undergone by other prisoners’;[284] and in particular, ‘[t]he prospect that a person might spend all or part of a term of imprisonment in unusually harsh conditions should be taken into account in determining an appropriate punishment’.[285]

Given that Attendee X was ‘highly likely’[286] to be held in solitary confinement, his sentence was reduced to four weeks, taking into account the fact that ‘four weeks in solitary confinement is harsh punishment and carries a substantial risk of psychological harm’.[287] In deciding between a shorter and longer term of imprisonment, Applegarth J noted the ‘risk that the respondent will suffer serious psychological harm by any substantial period in solitary confinement, and thereby receive what many would regard as a cruel and

unusual punishment, must be taken into account’.[288] In reducing the sentences, Applegarth J made extensive reference to international law,[289] and research on the harmful effects of solitary confinement.[290]

The Queensland decisions, based on rights-reasoning, were made in the absence of a Charter. Yet in Victoria, under the Charter, explicit rights arguments were not made in Foster or Collins v The Queen.

5 Conclusion

If space permitted, a similar case study could be built around the conditions of detention and bail where, although Charter arguments were relevant, neither counsel nor judges pursued them.[291] Whether in the sentencing or bail context, this lack of appeal of, and lack of engagement with, the Charter is perplexing. It may stem from a belief that the common law and sentencing laws deliver adequate protection. However, the British experience under the ECHR and the Human Rights Act 1998 (UK) c 42 demonstrates that significant changes to sentencing practices are achievable with rights-based arguments.[292] It may also stem from the uncertainty surrounding Charter enforcement post-VCA Momcilovic and HCA Momcilovic. Either way, Charter-based arguments have a perception problem: they are perceived as an indication that one’s legal claim is weak, and/or that one has more money than sense.

C R v Kent: Charter Influence

By way of contrast to Foster and Collins v The Queen,[293] Bongiorno JA mentioned the Charter when sentencing a prisoner suffering a mental illness in R v Kent.[294] His Honour recognised section 22(1), and noted that it is ‘hardly’ humane to place a person in a custodial environment where it is likely foreseeable ‘to result in their suffering a major psychiatric illness’, particularly as in this case where ‘no cogent grounds have ever been put forward as justifying such conditions for these prisoners’.[295] His Honour held that ‘if the conditions of incarceration of a prisoner are so harsh as to produce’ a psychiatric illness, this ‘must be taken into account in determining the length of any appropriate sentence’.[296]

Justice of Appeal Bongiorno concluded that ‘[t]he fact that Kent is currently suffering from a psychiatric disorder ... makes it appropriate to take into account the probable conditions under which he will serve his sentence and the effect of those conditions on his psychological state’.[297]


The narrow enforcement (Castles), mis-enforcement (Percy Review), and under/non-enforcement (Weaven, Foster and Collins v The Queen) of Charter rights in the prison context is problematic. An analysis of the themes from the prison jurisprudence, and the uncertainty surrounding the Charter enforcement mechanisms arising from the Momcilovic litigation, may be to blame.[298]

A Thematic Issues

First, there is a distinct under-utilisation of the Charter in the context of prisons by litigants[299] and judges.[300] Compared to other jurisdictions, such as Canada, New Zealand and the United Kingdom, the Charter ‘has generated far less litigation concerning prisoners’.[301]

Secondly, application of the section 32(1) Charter obligation to interpret all statutory provisions ‘in a way that is compatible with human rights’ ‘[s]o far as it is possible to do so consistently with their purpose’ has had little impact on prisoner’s rights. Section 32(1) has reinforced the existing and ordinary interpretation of legislative provisions,[302] but is yet to necessitate a rights-compatible ‘reinterpretation’ of an otherwise rights-incompatible provision. The remedial reach of section 32(1) is key to securing rights, yet it remains contested,[303] and will be discussed below.

Thirdly, section 7(2) has been misapplied and misunderstood in the prison context. Much of the lawmaking and decision-making relating to prisoners require a balancing of interests – those of the individual prisoner against numerous other competing demands.[304] To subject these laws and decisions to section 7(2) analysis is key to securing the rights of prisoners, because proportionality analysis often provides the solution to the rights restrictions – it helps to identify overreaches and excesses of laws and decisions, allows such excesses to be softened, helps to ensure the minimum intrusion on rights, highlights requisite safeguards, and ensures individualised decision-making.[305] This remedial aspect of section 7(2) remains contested, and will be discussed below.

Fourthly, section 38 unlawfulness has had little impact for prisoners outside the context of medical treatment.[306] Section 38(1) provides that ‘it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right’. Corrections Victoria, and public and private entities that manage, run and operate prisons, are public authorities.[307] Improvement of the conditions of detention and the treatment of detainees requires renewed focus on the rights aspects of substantive decisions and decision-making processes.

Finally, the longstanding judicial reluctance to interfere in the administration of prisons is evident in decisions,[308] and must be challenged. Bureaucratic efficiency, the imposition of blanket rules on disparate individuals, the lack of resources, decision-making that is not rights-justified, and decisions-makers who are not willing to justify decisions in rights terms, are no longer acceptable in ‘the age of rights’.[309]

B Uncertainty of Enforcement

Given the uncertainty surrounding sections 7(2) and 32(1), this situation is not surprising. With VCA Momcilovic suggesting that section 32(1) is no more than the codification of the principle of legality, and section 7(2) proportionality is not relevant to assessing rights compatibility, where is the ‘value add’ of the Charter?

HCA Momcilovic casts a shadow over VCA Momcilovic and demands a

closer analysis.[310] There are three key points.[311] First, four High Court judges acknowledge that section 7(2) analysis is part of the task of rights-compatible interpretation.[312] In essence, this is a rejection of the VCA Momcilovic method, which has section 7(2) relevant only to exercising the section 36(2) declaration power.

Secondly, four High Court judges support an approach to section 32(1) interpretation based on the New Zealand and United Kingdom approaches.[313] In essence, if an ordinary interpretation of a provision limits a right, section 7(2) analysis is undertaken to assess if the provision is nevertheless ‘compatible with human rights’ because it is reasonable and justifiable. If the limit is not reasonable and/or justifiable under section 7(2), the ordinary interpretation is revisited under section 32(1) to assess if a rights-compatible interpretation is possible and consistent with statutory purpose. Importantly, this method structurally includes limitations/proportionality analysis which is often the key to resolving rights violations, and it identifies and enhances the remedial role of section 32(1) – rights-compatible interpretation of an otherwise rights-incompatible law is a complete remedy.

Thirdly, Chief Justice French’s judgment has been incorrectly identified as the ratio of HCA Momcilovic.[314] Chief Justice French was the only judge who accepted the VCA’s view that section 32(1) codified the principle of legality.[315] The judgments of Gummow, Hayne, Bell and Heydon JJ entertain section 32(1) being something quite different to the principle of legality.[316] The joint judgment of Crennan and Kiefel JJ is the closest to French CJ on section 32(1), but their Honours explicitly reject the VCA Momcilovic methodology, which itself was based on the principle of legality characterisation.[317]

Revisiting HCA Momcilovic is vital for rights protection in prisons. Much of the lawmaking and decision-making in the context of prisoners requires a balancing of interests, with proportionality analysis providing the solution in most cases – that is, proportionality analysis is a remedy. Moreover, the capacity to re-visit an ordinary interpretation of a provision where that provision unreasonably and/or unjustifiably limits a right is vital as a remedy – a rights-compatible interpretation is the solution to the implementation of an otherwise right-incompatible law.

The nuances in the sections 7(2) and 32(1) jurisprudence must be explored and tested. There is strong judicial opinion, based on the text and structure of the Charter, the intention of the Charter-enacting Parliament, and sound judicial reasoning, suggesting sections 7(2) and 32(1) have a much greater role to play than the role attributed in VCA Momcilovic. Provided sections 7(2) and 32(1) are given the role envisaged by Nettle J in RJE v Secretary, Department of Justice,[318] Bell J in Kracke v Mental Health Review Board,[319] Warren CJ in Re Application under the Major Crime (Investigative Powers) Act 2004,[320] and four Justices of the HCA in HCA Momcilovic, there is plenty of reason for litigants to be utilising the Charter in argument. Indeed, with a remedial approach to proportionality and interpretation, the Charter should develop a more expansive rights-accommodating approach as per the comparative jurisprudence.[321]

C Conclusion

The challenge to judges and practitioners alike is to reinvigorate interest in and approaches to the Charter. A starting point is the clarification of the meaning of and interaction between sections 7(2) and 32(1).[322] It is time for judges and legal practitioners to ‘step up’ and shed the ‘tactical reticence’ to effectively engage with and utilise the Charter.[323]

[*] Dr Julie Debeljak (BEc/LLB(Hons), LLM (I) (Cantab), PhD), Associate Professor and Foundational Deputy Director of the Castan Centre for Human Rights Law, Faculty of Law, Monash University. Dr Debeljak is currently researching aspects of the Charter under a research project funded by an Australian Research Council Linkage Project entitled ‘Applying Human Rights Legislation in Closed Environments: A Strategic Framework for Managing Compliance’. Some aspects of an earlier draft of this article were presented at the Human Rights under the Charter: The Development of Human Rights Law in Victoria Conference, co-convened by the Supreme Court of Victoria, the Faculty of Law at Monash University, the Judicial College of Victoria, the Human Rights Law Centre and the Victoria Law Foundation, Melbourne, 7–8 August 2014: see Julie Debeljak, ‘The Impact of Charter Jurisprudence on Human Rights in Prisons’ (2014) 2 Judicial College of Victoria Online Journal 153. Dr Debeljak would like to thank Anita Mackay for her research assistance on this article, Simon McGregor and Associate Professor Bronwyn Naylor for their comments on an earlier draft, and the anonymous reviewers for their constructive comments.

Please note the United Nations Standard Minimum Rules for the Treatment of Prisoners (1955) were revised in 2015. The revised rules, to be known as the 'Mandela Rules', were recently adopted by the United Nations General Assembly (General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) UN Doc E/CN.15/2015/L.6/Rev.1 (21 May 2015).

[1] Prior to the Charter, there was no comprehensive document identifying and protecting rights, and no mechanisms ensuring laws were interpreted consistently with human rights and imposing human rights obligations on public authorities. Rather, rights were protected and enforced by a patchwork of statutory provisions (including anti-discrimination laws), the development and operation of the common law, statutory interpretation techniques developed by the judiciary (including the principle of legality), limits imposed under federal constitutional law, and through the interaction of underlying constitutional principles (eg, parliamentary sovereignty and responsible government). See Julie Debeljak, ‘Does Australia Need a Bill of Rights?’ in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook, 2013) 37, 38–51.

[2] Chief Justice Marilyn Warren and Justice Pamela Tate, ‘Editorial’ (2014) 2 Judicial College of Victoria Online Journal 2, 3.

[3] Ibid. More broadly, their Honours expressed hope that the articles would ‘assist practitioners to develop their skills and expertise in Charter jurisprudence’: ibid.

[4] The choice of case study stems from an Australian Research Council Linkage Project entitled ‘Applying Human Rights Legislation in Closed Environments: A Strategic Framework for Managing Compliance’ (2009–12). Associate Professor Bronwyn Naylor, Dr Inez Dusseyer and myself (as chief investigators) and Anita Mackay (as researcher) have been considering the impact of the Charter on the rights of people in closed environments. Emeritus Professor Arie Freiberg and Professor Stuart Thomas have also been involved as chief investigators. The chief investigators have been supported by a team of collaborating organisations: the Commonwealth Ombudsman, the Victorian Ombudsman, the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’), the Office of the Public Advocate (SA), the Office of the Inspector of Custodial Services (WA), and the now defunct Office of Police Integrity (Vic). This research has mainly focused on the response to the Charter of the government, a range of closed environments, and people detained in the closed environments. However, another aspect has been enforcement of the Charter through the courts, which is the focus this article. A ‘closed environment’ may be defined as ‘any place where persons are or may be deprived of their liberty by means of placement in a public or private setting in which a person is not permitted to leave at will by order of any judicial, administrative or other order’. The definition of ‘closed environment’ given here was employed in the ARC project and based on the definition of places where people are deprived of liberty in art 4 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 18 December 2002, 2375 UNTS 237 (entered into force 22 June 2006). The closed environments considered in Victoria include prisons, police cells, forensic psychiatric institutions, and closed mental health and disability facilities – all facilities linked to the collaborating organisations, which have an external monitoring role in relation to closed environments.

[5] See Knight, ‘Defendant’s Submissions’, Submission in A-G (Vic) v Knight, S CI 2003 9420 and S CI 2014 4677, 14 October 2014, 4 [12], citing Castles v Secretary, Department of Justice [2010] VSC 310; (2010) 28 VR 141 (‘Castles’) and Knight v Secretary, Department of Justice [2012] VSC 613.

[6] Matthew Groves, ‘Prisoners and the Victorian Charter(2010) 34 Criminal Law Journal 217, 217.

[7] See above n 4.

[8] The question is not the legitimacy of the detention (ie, the right to liberty). Rather, the question is the rights-compatibility of the conditions of detention and the treatment of detainees whose detention is assumed to be lawful.

[9] There are two additional categories of jurisprudence that have emerged – cases concerning freedom of information and access to courts, and cases concerning prison management – but word restrictions do not allow full analysis of these. In relation to freedom of information and access to courts, see Horrocks v Department of Justice [2012] VCAT 241 (Unreported, Judge Ginnane V-P, 2 March 2012); Lonigro v Victoria Police FOI Division [2013] VCAT 1003 (Unreported, Member Dea, 14 June 2013); Rogers v Chief Commissioner of Police [2009] VCAT 2526 (Unreported, Senior Member Davis, 26 November 2009). In Horrocks v Department of Justice and Rogers v Chief Commissioner of Police, the place of the Charter was recognised, and rights-based arguments were thoroughly explored and considered. Although there is some scope for critique, especially in Rogers v Commissioner of Police, VCAT decision-makers appear quite comfortable with Charter arguments. In relation to prison management, see Rich v Secretary, Department of Justice [2010] VSC 390, [45] (Bell J) (‘Rich’); Knight v A-G (Vic) [2010] VSC 99; Knight v Wise [2014] VSC 76; Brazel v Westin [2013] VSC 527. This series of cases relating to prisoner access to the courts is mixed. Although some cases highlight the importance of the right to fair trial and equality before the law (see, eg, Rich [2010] VSC 390; Knight v Wise [2014] VSC 76), no decisions in fact interfered with the management practices within the prison system. See also Lisa Harrison, ‘Prisoners and their Access to the Internet in the Pursuit of Education’ (2014) 39 Alternative Law Journal 159.

[10] A fourth category of cases concerning the conditions of detention and bail provides another interesting case study, but words do not permit a thorough examination. This fourth category will be briefly explored within the third category of cases concerning the conditions of detention and sentencing.

[11] One goal of the Charter is to better protect rights in Victoria: Office of the Attorney-General (Vic), ‘Victoria Leads the Way on Human Rights’ (Media Release, 20 December 2005).

[12] See above n 4.

[13] See Bronwyn Naylor, ‘Human Rights and Respect in Prisons: The Prisoners’ Perspective’ in Bronwyn Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (Federation Press, 2014) 84, 85. Security concerns are cast widely, and often outweigh the protection of individual rights: Bronwyn Naylor, ‘Protecting the Human Rights of Prisoners in Australia’ in Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook, 2013) 395. See below nn 109, 305–6.

[14] When people are in prison for long periods, the closed environment creates what Erving Goffman identified as a ‘total institution’: Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Aldine Publishing, 1962) 6. Within total institutions, ‘all aspects of life are conducted in the same place and under the same single authority’, such that detainees lose their autonomy and power to make decisions regarding day-to-day activities, which potentially compromises rights: at 5–6. For example, prisoners cannot freely exercise their cultural and religious practices, or maintain family and kinship connections: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 27 (‘ICCPR’); Charter s 19; Human Rights Act 2004 (ACT) s 27. Moreover, ‘each phase of ... daily activity is carried on in the immediate company of a large batch of others, all of whom are treated alike and required to do the same thing together’: Goffman, above n 14, 6. This has implications for specific rights (eg, privacy rights under ICCPR art 17, Charter s 13 and Human Rights Act 2004 (ACT) s 12), and challenges the usual expectation of individualised decision-making as a means of upholding rights. Further, ‘the whole sequence of activities [is] imposed from above by a system of explicit formal rulings and a body of officials’: Goffman, above n 14, 6. The rules themselves potentially compromise rights (eg, violation of expression, privacy and correspondence rights occur due to constraints on communication with lawyers and family members), and the system itself reinforces the power imbalance between those deprived of their liberty and those in their charge.

[15] From 2010 to 2014, the prison population in Victoria has grown from 4500 to 6100 prisoners, with a five-year growth rate of 40 per cent and the population growing 9 per cent and 14 per cent under the premiership of Denis Napthine: Peter Martin and Jane Lee, ‘Jail Figures Jump 40% in Two Years’, The Age (Melbourne), 12 December 2014, 2. For a longer-term perspective on Victorian prison rates, see the Victorian Sentencing Advisory Council report that found ‘Victoria’s imprisonment rate has risen from 94.2 prisoners per 100 000 adults in 2002 to 111.7 prisoners per 100 000 adults in 2012, with 47.4% of that increase occurring within the last four years’: Sentencing Advisory Council (Vic), Victoria’s Prison Population 2002 to 2012 (Report, May 2013) 1. The increases are predicted to continue: Victorian Auditor-General, Prison Capacity Planning (Report, November 2012) xi.

[16] The Victorian Auditor-General considers ‘a 95 percent utilisation rate to be the “nationally- accepted limits for the same and efficient operation of the prison system”’, with the Productivity Commission reporting that Australian prisons were operating at 101 per cent of capacity nationally throughout 2010–11, and the Victorian Minister for Corrections admitting ‘[w]e have a significant problem with overcrowding in our prisons’: Naylor, ‘Human Rights and Respect in Prisons’, above n 13, 95–6, quoting Jesuit Social Services, Submission No 6 to Victorian Sentencing Advisory Council, Baseline Sentencing, October 2011, 10. The Victorian Ombudsman has observed that ‘[t]here is a crisis in overcrowded prison and police cells caused by inadequate beds in the Victorian prison system’: Victorian Ombudsman, Investigation into Deaths and Harms in Custody (Report, March 2014) 10 [8]. This has led to the use of shipping containers to accommodate people in Victoria: Jane Lee, ‘Prisoners Moved into Shipping Containers’, The Age (online), 6 January 2014 <> . See generally Elizabeth Grant, ‘“Pack’em, Rack’em and Stack’em”: The Appropriateness of the Use and Reuse of Shipping Containers for Prison Accommodation’ (2013) 13(2) Australasian Journal of Construction Economics and Building 35.

[17] The impacts of overcrowding include ‘[t]he loss of privacy in a crowded environment [which] leads to “psychological suffering and a loss of personal integrity”; it leads to restrictions on movement, on time out of the cell and on access to educational and work facilities ... and it reduces the safety of the facility’, as well as increasing ‘competition for prison services and resources such as [the] medical centre, gym, kitchen and phones’: Naylor, ‘Human Rights and Respect in Prisons’, above n 13, 96, quoting Jonny Steinberg, ‘Prison Overcrowding and the Constitutional Right to Adequate Accommodation in South Africa’ (Paper, Centre for the Study of Violence and Reconciliation, January 2005). Significantly, overcrowding can lead to increased exposure to the risk of violence and intimidation as people are required to share cells: Victorian Ombudsman, Investigation into Deaths and Harms, above n 16, 10 [12]. Overcrowding has also led to a shortage of places in rehabilitation programs: Victorian Ombudsman, Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria (Discussion Paper, October 2014) 18 [107]. Such programs are often a requirement for parole, and the parole statistics indicate a substantial decrease in the number of people being granted parole: at 17 [96]–[97]. A reduction in the number of people being granted parole is contributing to the overcrowding in the prison system: at 17 [98]–[99].

[18] Prisoners in Australia have poor health overall:

Prisoners have significant health issues, with high rates of mental health problems, communicable diseases, alcohol misuse, smoking and illicit drug use. 38% of prison entrants have ever been told they have a mental illness, 32% have a chronic condition. 84% are current smokers, but almost half of them would like to quit.

Australian Institute of Health and Welfare, The Health of Australia’s Prisoners 2012 (Report, Cat No PHE 170, 2013) 195.

In Victorian prisons, the Ombudsman has identified that ‘[a]s at 30 June 2013, 55 per cent of the Victorian prison population had an identified suicide/self-harm risk score. In addition, 42 per cent of the prison population had an identified psychiatric risk rating, indicating mental health concerns’: Victorian Ombudsman, Investigation into Deaths and Harms, above n 16, 56 [225]. Overcrowding has resulted in pressure on health services in prisons: at 122 [559]. Another factor that may increase pressure on prison health services is that the prison population is ageing at a faster rate than the general population: Susan Baidawi et al, ‘Older Prisoners – A Challenge for Australian Corrections’ (Trends and Issues in Crime and Criminal Justice Paper No 426, Australian Institute of Criminology, August 2011) 2.

[19] National data shows that 70 per cent of imprisoned people have used illicit drugs in the 12 months prior to their incarceration, 47 per cent of males were found to be at risk of a high level of alcohol-related harm in the past 12 months, and a further 28 per cent were at low-risk: Australian Institute of Health and Welfare, above n 18, 74, 94. A Victorian study found that the prevalence of acquired brain injury in the Victorian prison population was 42 per cent for males and 33 per cent for females: Arbias and La Trobe University, Acquired Brain Injury Screening, Identification & Validation in the Victorian Correctional System (Report, 2010) 8. The Victorian Ombudsman has recently recommended improvements to the screening processes for identification of acquired brain injury because without this there are increased risks to the prisoner: Victorian Ombudsman, Investigation into Deaths and Harms, above n 16, 109–10.

[20] For a discussion of the history of the treatment of prisons, from the ‘civilly dead’ doctrine to the more ‘welfare’-oriented ‘residuum’ principle, see Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 395–7.

[21] Rich [2010] VSC 390, [45] (Bell J) (emphasis added).

[22] The common law statement of this principle is found in Raymond v Honey [1983] 1 AC 1, 10G (Lord Wilberforce): Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 396 n 6. Internationally, Principle 5 of the United Nations’ Basic Principles for the Treatment of Prisoners states:

Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.

Basic Principles for the Treatment of Prisoners, GA Res 45/111, UN GAOR, 3rd Comm, 45th sess, 68th plen mtg, Agenda Item 100, Supp No 49, UN Doc A/Res/45/111 (14 December 1990) annex para 5.

Principle 9 states that ‘[p]risoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation’. Justice Emerton refers to these in Castles [2010] VSC 310; (2010) 28 VR 141, 168 [103].

[23] Section 7(2) of the Charter states:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including –

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

[24] See above n 14.

[25] The importance of human rights in prisons cannot be underestimated. The intensity of living in a coercive environment, the often poor and crowded living conditions, the loss of autonomy, and the heightened emotions over seemingly minor issues, can lead to distress, anger, or even to violence.

Naylor, ‘Human Rights and Respect in Prisons’, above n 13, 122.

[26] See Knight v Shuard [2014] VSC 475. Knight challenged a decision by the Prison Manager to intercept his letters under ss 47(1)(n) and 47D(1) of the Corrections Act 1986 (Vic). Knight argued that a prison policy involving a blanket prohibition on prisoners communicating with the media infringed his Charter rights – in particular, his s 13(a) right not to have his correspondence unlawfully or arbitrarily interfered with, his s 15 right to freedom of expression, and his s 18(1) right to take part in public life. Justice Rush held that the Prison Manager ‘correctly exercised his power pursuant to the Act’ and ‘did not take into account any prison policy, such that the implications of those policies on the rights of the applicant pursuant to the Charter are irrelevant on the facts’: Knight v Shuard [2014] VSC 475, [43].

[27] These rights are ‘additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law’: Corrections Act s 47(2).

[28] Groves, above n 6, 218.

[29] See Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 404; Groves, above n 6, 218. Rights under s 47 were raised in Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366, but that aspect was not decided in the Federal Court. They were also raised without much impact in cases where prisoners claimed a right to access computers to assist with their preparation for legal proceedings: eg, Rich v Secretary, Department of Justice [2007] VSC 405; Knight v Anderson [2007] VSC 278; (2007) 16 VR 532. See Groves, above n 6, 218 n 6.

[30] See below nn 38, 93.

[31] For a discussion of the challenges to enforcing s 47(1), see Bronwyn Naylor, Julie Debeljak, and Anita Mackay, ‘A Strategic Framework for Implementing Human Rights in Closed Environments: A Human Rights Regulatory Framework and its Implementation’ (2015) forthcoming Monash University Law Review’.

[32] Castles was convicted of social security fraud on 20 November 2009 and sentenced to three years’ imprisonment, to be released on her own recognisance after 18 months: Castles [2010] VSC 310; (2010) 28 VR 141, 146 [6] (Emerton J).

[33] ‘Successful’ is in inverted commas because technically the resolution of the case did not rely on the Charter: see below nn 35–8, 93 and accompanying text.

[34] The treatment was considered both ‘reasonable’ and ‘necessary’ under s 47(1)(f) ‘given the commitment to the treatment that Ms Castles has already demonstrated, her willingness to pay for further treatment, her age and the fact that she will become ineligible for further treatment before she is released from prison’: Castles [2010] VSC 310; (2010) 28 VR 141, 145 [3].

[35] Ibid 145 [3].

[36] Ibid 177 [147].

[37] Castles had requested a general permit to leave the prison when necessary. Castles needed to attend Melbourne IVF Clinic three to four times per cycle, on dates which could not be predicted in advance: ibid 147 [12], 152 [32]–[33]. ‘This require[d] her to travel to Melbourne on up to 24 occasions on unspecified dates over a six month period’ such that she sought ‘a permit authorising her to be absent from Tarrengower on an unspecified number of occasions at unspecified times over this period’: at 179 [157]. Castles was not granted a permit to leave the prison to attend IVF treatment ‘as is required over a number of months’: at 145 [3]. Rather, she was ‘eligible for permits on a visit by visit basis’, subject to the satisfaction of the Secretary that the safety and welfare of Castles and the public had been considered, and that adequate and suitable transport was available: at 145–6 [3].

[38] Ibid 146 [4].

[39] Charter ss 3(1) (definition of ‘public authority’), 4.

[40] Castles also claimed a violation of her right to equality under s 8(2) of the Charter, given that other prisoners are entitled to conjugal visits, prisoners give birth in prison and prisoners are permitted to care for their children in prisons. Castles argued that ‘denying a person who is infertile the opportunity to conceive when other female prisoners in the same or similar circumstances have that opportunity is less favourable treatment’: Castles [2010] VSC 310; (2010) 28 VR 141, 155 [84]. Justice Emerton dismissed this argument, finding that ‘[r]esidential visits are not made available to facilitate procreation, but to enable existing family relationships to be maintained’: at 165 [89]. Justice Emerton thus held that the evidence did not persuade her that an infertile prisoner wishing to become pregnant had received less favourable treatment than a fertile prisoner who wishes to become pregnant: at 165 [90].

[41] ICCPR art 23(1) states that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’, and art 23(2) confers ‘[t]he right of men and women of marriageable age to marry and to found a family’. The full ICCPR right was not enacted in the Charter.

[42] In 2005, the Victorian Government established the HRCC to undertake the community consultation about how best to protect rights in Victoria. The Chair of the HRCC, George Williams, recognised that the HRCC was designed to ‘operate independently of the Attorney-General and of government’, but noted that ‘upon [the HRCC’s] appointment’, the Statement of Intent was released which ‘set out the Government’s preferred position on any human rights model for the state’: George Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’ [2006] MelbULawRw 27; (2006) 30 Melbourne University Law Review 880, 886–7. See Department of Justice (Vic), Human Rights in Victoria: Statement of Intent (Statement, May 2005).

[43] Rather than interfere with the VLRC process, the HRCC recommended that inclusion of the right be considered in the four-year review: Castles [2010] VSC 310; (2010) 28 VR 141, 156–7 [50] (Emerton J).

[44] Ibid 157 [51].

[45] Ibid 157 [52], citing Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 14 (emphasis altered). Prior to this, the Explanatory Memorandum notes: ‘Sub-clause (1) provides that families are the fundamental group unit of society and are entitled to be protected by society and the State. This provision is modelled on article 23(1) of the Covenant’.

[46] There was some argument about whether the HRCC’s exclusion of the right to found a family was based on avoiding the limitations to that right in the ICCPR (ie the ICCPR right links the right to marry with the right to found a family, and the HRCC did not want to pre-empt the VLRC’s conclusion about whether the right to found a family should be free-standing or linked/limited as per the ICCPR), and whether the remaining general corpus of international human rights law could assist: Castles [2010] VSC 310; (2010) 28 VR 141, 158 [58], 158–9 [60] (Emerton J).

[47] Ibid 161 [69] (Emerton J), citing Evans v United Kingdom [2007] ECHR 264; (2008) 46 EHRR 34.

[48] Castles [2010] VSC 310; (2010) 28 VR 141, 161 [71].

[49] Ibid 159 [62]. In particular, her Honour noted that the Explanatory Memorandum explicitly states the right was excluded and, although the statement was made ‘in the context of s 17’, ‘it was expressed to apply to the Charter as a whole’: at 159 [62].

[50] Ibid 161 [72] (emphasis added).

[51] Ibid.

[52] See, eg, Human Rights Committee, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/D/488/1992 (4 April 1994) (‘Toonen v Australia’); Human Rights Committee, Communication No 182/1984, 29th sess, UN Doc CCPR/C/OP/2 (28 September 1984) 209 (‘Zwann-de Vries v Netherlands’).

[53] That is, rights instruments must be flexible enough to respond to changing societal needs and conditions, and must be allowed ‘to grow like “a living tree”’: David M Beatty, Talking Heads and the Supremes: The Canadian Production of Constitutional Review (Carswell, 1990) 15, citing Hunter v Southam Inc [1984] 2 SCR 145, 153 (Dickson J).

[54] [2007] V Eur Court HR 99.

[55] Castles [2010] VSC 310; (2010) 28 VR 141, 163 [79] (Emerton J), citing Dickson v United Kingdom [2007] V Eur Court HR 99, 124 [66].

[56] Castles [2010] VSC 310; (2010) 28 VR 141, 163 [79] (Emerton J), quoting Dickson v United Kingdom [2007] V Eur Court HR 99, 129 [82].

[57] Dickson v United Kingdom [2007] V Eur Court HR 99, 130 [85].

[58] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953) art 8.

[59] Castles [2010] VSC 310; (2010) 28 VR 141, 164 [81].

[60] ECHR art 12 states: ‘Men and women of marriageable age have the right to marry and to found a family’.

[61] Dickson v United Kingdom [2007] V Eur Court HR 99, 130 [86].

[62] Moreover, as Groves notes, while Emerton J rejected an expansive reading of the right to privacy where the Victorian Parliament explicitly rejected the inclusion of a right, this leaves open the possibility of expansive interpretations of rights where issues have not been considered and rejected by the Parliament: Groves, above n 6, 219.

[63] Dickson v United Kingdom [2007] V Eur Court HR 99, 126–7 [74]–[76].

[64] The inability to beget a child was not considered an ‘inevitable’ consequence of imprisonment; ‘there [was] no place under the Convention system ... for automatic forfeiture of rights by prisoners based purely on what might offend public opinion’; and although the welfare of children was a legitimate concern, ‘that cannot go so far as to prevent parents who so wish from attempting to conceive a child in circumstances like those of the present case, especially as the second applicant was at liberty and could have taken care of any child conceived until such time as her husband was released’: ibid.

[65] For an explanation of ‘successful’, see above n 33.

[66] Castles [2010] VSC 310; (2010) 28 VR 141, 167 [99].

[67] The HRC is established under ICCPR pt IV.

[68] Castles [2010] VSC 310; (2010) 28 VR 141, 167 [100], citing HRC, General Comment 21: Article 10 (Humane Treatment of Persons Deprived of Their Liberty), 44th sess (13 March 1993). Justice Emerton is referred by the VEOHRC to Principles 5 and 9 of the United Nations Basic Principles for the Treatment of Prisoners: see above n 22.

[69] The National Guidelines provide, inter alia, ‘that every prisoner is to have access to “evidence based” health services provided by a competent, registered health professional who will provide a standard of health services comparable to that of the general community’; ‘that every prisoner is to have access to the services of specialist medical practitioners’; referrals ‘should take account of community standards of health care’; that prisoners can ‘receive treatment from private health professionals’; and where treatment precedes imprisonment, ‘that prisoner should be permitted to maintain contact, on the approval of the prison health service, with the medical service that was treating the prisoner’: Castles [2010] VSC 310; (2010) 28 VR 141, 169 [107] (Emerton J), citing National Guidelines paras 2.26, 2.27, 2.33, 2.35. The National Guidelines are ‘explicitly only a “statement of national intent” and not “laws to be enforced”’: Naylor, ‘Human Rights and Respect in Prisons’, above n 13, 91. Naylor recognises the importance of the National Guidelines ‘in establishing concrete, if minimum, requirements and to guide policy and practice, but they are of little relevance to individual prisoners, providing no remedy for non-compliance’: Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 403.

[70] Castles [2010] VSC 310; (2010) 28 VR 141, 168 [107].

[71] Ibid 169 [108].

[72] Ibid. The same view has been expressed by the HRC: HRC, General Comment 21: Article 10 (Humane treatment of persons deprived of their liberty), 13 March 1993 [3]; Human Rights Committee, Views: Communication No 1818/2008, 100th sess, UN Doc CCPR/C/100/D/1818/2008 (2 November 2010) 10 [6.8] (‘McCallum v South Africa’).

[73] Castles [2010] VSC 310; (2010) 28 VR 141, 169 [109]. At 170 [11], Emerton J quoted Lord Bingham in R (Daly) v Secretary for the Home Department [2001] 2 AC 532, 537 [5]: ‘Some rights, perhaps in an attenuated or qualified form, survive the making of [a custodial] order’.

[74] Castles [2010] VSC 310; (2010) 28 VR 141, 170 [111] (Emerton J).

[75] Ibid 170 [113].

[76] See above n 23.

[77] This is exactly what the VEOHRC sought to avoid when it submitted that ‘once a person is imprisoned, it becomes necessary for the authorities to justify any limitation on a prisoner’s right, other than the right to liberty’: Castles [2010] VSC 310; (2010) 28 VR 141, 167 [102].

[78] Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’).

[79] Section 1 of the Canadian Charter of Rights and Freedoms ‘guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Section 7(2) of the Victorian Charter is highly derivative from s 1 of the Canadian Charter of Rights and Freedoms. The Explanatory Memorandum to the Victorian Charter notes that the limitations clause is based on the New Zealand Bill of Rights Act 1990 (NZ): Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 9. However, it is more honest to acknowledge the influence of the Canadian Charter of Rights and Freedoms, which predates the New Zealand legislation by eight years and upon which the New Zealand legislation was based. There is a glaring resistance to acknowledge any influence of the Canadian Charter of Rights and Freedoms. One can only assume this is because of its constitutional status.

[80] This was first outlined in the case of Hunter v Southam Inc [1984] 2 SCR 145, but the most often-quoted case on the point is R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295. Appeals to limit rights at the definitional stage have been rejected, although, at different times, definitional limits have arguably influenced some judges’ interpretations of Charter rights: see David Beatty, Talking Heads and the Supremes, above n 53, 78–84; David Beatty, ‘The Canadian Charter of Rights: Lessons and Laments’ in Gavin W Anderson (ed), Rights & Democracy: Essays in UK–Canadian Constitutionalism (Blackstone Press, 1999) 3, 14–19. Many commentators argue in favour of imposing some definitional criteria: see Robert J Sharpe, ‘A Comment on David Beatty’s “A Conservative’s Court: The Politicization of Law”’ (1991) 41 University of Toronto Law Journal 469, 477–9; Rainer Knopff and F L Morton, Charter Politics (Nelson Canada, 1992) 152; Jeremy Webber, ‘Tales of the Unexpected: Intended and Unintended Consequences of the Canadian Charter of Rights and Freedoms(1993) 5 Canterbury Law Review 207, 232–3.

[81] This approach is also used in New Zealand: see Andrew Butler and Petra Butler, The New Zealand Bill of Rights: A Commentary (LexisNexis 2005) 120–2, 155–6; Paul Rishworth et al, The New Zealand Bill of Rights (Oxford University Press, 2003) 172–4. It is likewise used in South Africa: see Iain Currie and Johan de Waal, The Bill of Rights Handbook (Juta, 5th ed, 2005) 150-53, 164–8. One may also recall the words of Lord Wilberforce in Minister for Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319, 328–9 when describing the approach to interpreting rights and fundamental freedoms: ‘These antecedents ... call for a generous interpretation avoiding what has been called “the austerity of tabulated legalism,” suitable to give to individuals the full measure of the fundamental rights and freedoms referred to’; before concluding that

[i]t is thus to ‘“have effect for the purpose of affording protection to the aforesaid rights and freedoms’ subject only to such limitations contained in it ‘being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice... the public interest.’

[82] There is a difference between limiting the definition of rights such that a particular governmental action is consistent with human rights, and finding a human right to be violated although justified.

[83] See above n 63.

[84] [2010] VSCA 50; (2010) 25 VR 436.

[85] Ibid 446 [35].

[86] Ibid 464 [103] (The Court).

[87] The ‘framework of interpretive rules’ includes Charter s 32(1), Interpretation of Legislation Act 1984 (Vic) s 35(a), and the common law rules of statutory interpretation, particularly the presumption against a parliamentary intention to interfere with or infringe rights (or, the principle of legality): ibid.

[88] VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 446 [35] (The Court).

[89] The VCA refers to Chief Justice Elias’s dissent in R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1, where her Honour relies on the Canadian Charter of Rights and Freedoms to highlight that the limitations question is a ‘distinct and later enquiry’ to interpretation: VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 466 [109] (emphasis added). Referring to the Canadian Charter of Rights and Freedoms, Elias CJ states:

The first question is the interpretation of the right. In ascertaining the meaning of the right, the criteria for justification are not relevant. The meaning of the right is ascertained from the “cardinal values” it embodies. Collapsing the interpretation of the right and the s 1 justification is insufficiently protective of the right.

R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1, 15 [22], quoted in VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 466 [109] (The Court) (emphasis added).

The VCA’s reliance on this passage lies in its misunderstanding of what Elias CJ is discussing. Her Honour is discussing the ‘meaning of the right’, not the meaning of the challenged legislation. A discussion about the meaning of a right and its interaction with a limitations provision has been confused with a discussion about the meaning of Charter s 32(1) and its interaction with a limitations provision. The Canadian discussion about two ‘rights questions’ cannot be relied upon by the VCA in a discussion about the interaction between one ‘rights question’ (ie, s 7(2)) and one ‘Charter enforcement question’ (ie, s 32(1)). Chief Justice French similarly mistakenly relies on Elias CJ: Momcilovic v The Queen (2011) 245 CLR 1, 43 [33] (‘HCA Momcilovic’).

[90] The VCA’s conclusion misunderstands the nature of limitations. It is widely acknowledged, and explicitly mentioned in Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 9, that not all rights are absolute; and that rights must be balanced against each other, and other communal values and needs: see generally Julie Debeljak, ‘Balancing Rights in a Democracy: The Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006[2008] MelbULawRw 14; (2008) 32 Melbourne University Law Review 422. Justifiable limits on rights are not problematic, whereas unjustifiable limits on rights are problematic. Constitutional and statutory rights instruments develop mechanisms to address the latter – whether via a judicial invalidation mechanism, or judicial interpretation or declaration mechanisms, respectively.

[91] Castles [2010] VSC 310; (2010) 28 VR 141 166–70 [93]–[113].

[92] (2011) 245 CLR 1. For an exploration of VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436 and HCA Momcilovic (2011) 245 CLR 1, see Julie Debeljak, ‘Who Is Sovereign Now? The Momcilovic Court Hands Back Power over Human Rights That Parliament Intended It To Have’ (2011) 2(1) Public Law Review 15; Julie Debeljak, ‘Proportionality, Rights-Consistent Interpretation and Declarations under the Victorian Charter of Human Rights and Responsibilities: The Momcilovic Litigation and Beyond’ [2014] MonashULawRw 17; (2014) 40 Monash University Law Review 340.

[93] Castles [2010] VSC 310; (2010) 28 VR 141, 173 [125] (Emerton J).

[94] Ibid 173 [127] (emphasis added).

[95] Ibid (emphasis added).

[96] For Castles, the factors in favour of reasonableness included that: it was a continuation of treatment; it was Castles’ last chance to undertake the treatment; Castles would pay for the treatment; and, being a short-term prisoner, any resultant pregnancy would not place a burden on the prison: ibid 175 [139] (Emerton J).

[97] Ibid 174 [133] (Emerton J). Treatment that is found to be necessary ‘is likely also to be reasonable’: at 175 [138] (Emerton J).

[98] ‘[R]easonableness ... may be assessed having regard to the availability of the same treatment at alternative locations closer to the prison in the light of the undoubted logistical problems involved in transporting prisoners large distances to receive treatment’: ibid 175 [140] (Emerton J).

[99] Ibid 175 [142] (Emerton J).

[100] Castlemaine is a city in regional Victoria, approximately 123 kilometres from Melbourne.

[101] Castles [2010] VSC 310; (2010) 28 VR 141[2010] VSC 310, 177 [147] (emphasis added).

[102] Ibid.

[103] Ibid 176 [145] (citations omitted). See below n 111 for Naylor’s comments.

[104] Castles [2010] VSC 310; (2010) 28 VR 141, 180 [158] (Emerton J).

[105] Ibid 180 [161].

[106] Ibid 180 [162]. Justice Emerton did, however, hold that in circumstances where s 47(1)(f) is relevant, a s 57A permit ‘should usually flow from the former where the prisoner is a low security prisoner without any history of management problems such as Ms Castles’.

[107] Ibid 182 [172]. One consideration here is the ‘prison security practice’ to issue permits only one or two days in advance, it being ‘considered unsafe for prisoners to know when they will be leaving the prison, as they may become an escape risk or have pressure applied to them by other prisoners to act as couriers or intermediaries for illegal purposes’: at 181 [164].

[108] Ibid 182–3 [174] (Emerton J).

[109] Andrew Lu and Andrew Murn, ‘Prisoner Access to Healthcare – A Rights-Based Approach?’ (2010) 18 Health Law Bulletin 110.

[110] Groves, above n 6, 220.

[111] Charter s 7(2)(a).

[112] See HRC, General Comment 21: Article 10 (Humane treatment of persons deprived of their liberty), 13 March 1993, [4]; Human Rights Committee, Views: Communication No 1761/2008, 101st sess, UN DOC CCPR/C/101/D/1761/2008 (27 April 2011) 14 [7.9] (‘Giri v Nepal’). See below n 114–16.

[113] ‘In reality, the Court returned the matter to corrections management, demonstrating the deference to management, and to security considerations ... as well as the traditional reluctance to require the allocation of resources’: Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 406.

[114] See above n 112 and accompanying text.

[115] Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 411, quoting Human Rights Commission (ACT), Human Rights Audit on the Operation of ACT Correctional Facilities under Correction Legislation (Publication No 07/1042, July 2007) 26.

[116] Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 411, quoting Gusev v Russia (European Court of Human Rights, Chamber, Application No 67542/01, 15 May 2008) [58]. See also Dybeku v Albania (European Court of Human Rights, Chamber, Application No 41153/06, 18 December 2007) [50]; Aliev v Ukraine (European Court of Human Rights, Chamber, Application No 41220/98 (29 April 2003) [151].

[117] Castles [2010] VSC 310; (2010) 28 VR 141, 173 [127], citing VCA Momcilovic (2010) 25 VR 430, 464–5 [103] (The Court), which relevantly states:

Compliance with the s 32(1) obligation means exploring all ‘possible’ interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights. What is ‘possible’ is determined by the existing framework of interpretive rules, including of course the presumption against interference with rights.

[118] Recall that Charter s 7(2) is only relevant to the exercise of the discretion to issue a declaration of inconsistent interpretation.

[119] VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 464 [103] (The Court).

[120] From a doctrinal perspective, it is impossible to identify an interpretation that ‘least infringes’ a Charter right without first, considering the scope of the rights and the legislation, and establishing whether the legislation limits a right; and secondly, considering whether the limitation is reasonable and demonstrably justified. Ie, answering step one includes full consideration of steps two and three of the VCA Momcilovic method. How can an interpretation that ‘least infringes’ a Charter right be identified without any discussion of the scope of the rights said to be ‘breached’ (VCA Momcilovic method step two)? Moreover, how can an interpretation that ‘least infringes’ a Charter right be identified without undertaking some form of limitations analysis like s 7(2), particularly the less restrictive legislative means assessment under s 7(2)(e) (VCA Momcilovic method step three)? The entirety of the VCA Momcilovic method is in truth contained in step one, with steps two and three becoming superfluous. See Debeljak, ‘Proportionality, Interpretation and Declarations’, above n 92, 370 n 181. For a similar analysis regarding the New Zealand Bill of Rights Act 1990 (NZ) (‘NZBORA’), see Paul Rishworth, ‘Human Rights’ [2012] New Zealand Law Review 321, 333.

[121] See above nn 38, 93.

[122] [2012] VSC 582. This is in contrast to a recent decision under the Corrections Act 1997 (Tas), where the Tasmanian Supreme Court found a breach of ss 4 and 29 of the Corrections Act 1999 (Tas) and the common law duty of care because, inter alia, the applicant was held in solitary confinement for 23 hours per day: see Pickett v Tasmania (Unreported, Supreme Court of Tasmania, Wood J, 20 April 2011).

[123] Weaven had a yeast intolerance which he claimed was not accounted for in his diet. He also claimed that a pre-existing work-related wrist injury was re-injured when he was handcuffed for the offence for which he was incarcerated, and his medical treatment had been inadequate and untimely: see Weaven [2012] VSC 582, [17]–[20] (Macaulay J).

[124] Ibid [36]. Weaven also claimed that the Secretary in the past had not met the obligations under s 47(1). However, Macaulay J did ‘not attempt to resolve the question of whether there has been any past failure to properly discharge that duty; it is somewhat more difficult to resolve confidently’: at [38].

[125] Ibid [35] (citations omitted).

[126] The judgment in Weaven was delivered on 30 November 2012, which post-dates both VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436 (17 March 2010) and HCA Momcilovic (2011) 245 CLR 1 (8 September 2011).

[127] [2010] VSC 179.

[128] Ibid [2] (Coghlan J).

[129] ‘Child Killer Derek Percy Dies after Cancer Battle’, The Age (online), 24 July 2013 <http://www.the>; Mark Dunn, ‘Child Killer Derek Ernst Percy’s Death Brings No Comfort for Suspected Victim Linda Stilwell’s Mother Jean Priest’, Herald Sun (online), 24 July 2013 <


[130] I wish to thank an anonymous reviewer for clarifying this point.

[131] The first review occurred in 1998 and the second in 2004. In 2004, the custodial order was confirmed and a transfer for Thomas Embling Hospital was declined: Percy Review [2010] VSC 179, [3]–[6] (Coghlan J).

[132] Ibid [8] (Coghlan J).

[133] Ibid [8]–[9] (Coghlan J).

[134] The transfers were necessary because Percy was a person of interest in investigations into unresolved murders, and had to be available for interviews with the Victorian Homicide Squad and appear at two inquests. The inquests were in NSW and Victoria.

[135] Percy Review [2010] VSC 179, [10] (Coghlan J).

[136] Ibid [21] (Coghlan J).

[137] Ibid [19] (Coghlan J).

[138] Ibid [21] (Coghlan J).

[139] Ibid.

[140] Ibid.

[141] Ibid [24].

[142] VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436 was delivered 17 March 2010 and Percy Review [2010] VSC 179 was delivered on 31 March 2010.

[143] Quoted in Percy Review [2010] VSC 179, [28]. Justice Coghlan noted that Percy claimed s 22(2) directly applied to his situation, whereas his Honour noted that ‘it is argued on his behalf that by analogy’ it applies: at [30].

[144] In this case, the Department of Human Services, the Office of Corrections and the Department of Justice: ibid [25] (Coghlan J).

[145] Ibid.

[146] Emphasis added.

[147] Percy Review [2010] VSC 179, [34].

[148] Ibid [35]. Note that it appears Justice Coghlan’s reference to s 35(1)(b) is a mistake. Section 35(1)(b) states that ‘[t]he court that made a supervision order must undertake a major review of the order ... at intervals not exceeding 5 years for the duration of the order’. It seems that his Honour was referring to s 35(3)(a)(ii), which refers to confirming the order and varying the place of custody if ‘satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order’.

[149] Explanatory Memorandum, Crimes (Mental Impairment and Unfitness to be Tried) Bill 1997 (Vic) 14. There is nothing in the CMIUTA and the Explanatory Memorandum to suggest that these provisions do not apply equally to the variation of a condition of an order (as distinct to the variation of an order).

[150] Percy Review [2010] VSC 179, [79].

[151] Ibid [52]–[55].

[152] Ibid [24]. See above n 141 and accompanying text.

[153] Percy Review [2010] VSC 179, [57]. His Honour continued: ‘It follows that even though it is very unlikely, on the evidence, the possibility exists of a person who is the subject of a supervision order being detained in prison. I do not regard s 26(4) of the Act as otherwise relevant’: at [59].

[154] Ibid [60].

[155] Ibid [61]. Earlier, his Honour did not consider this factor ‘of itself justifying transfer’; rather it was one consideration, noting that ‘[t]hat argument existed at the time of the major reviews in 1998 and 2004, but did not carry the day’: at [46]. This comment fails to account for the significant change to the legal landscape introduced by the Charter.

[156] Factors in favour of the transfer included: treatment in a therapeutic rather than penal setting (being ‘the most powerful argument’: ibid [67]); and Percy’s successful past participation in treatment and willingness to engage again: see generally at [65]–[77].

[157] Factors against the transfer included: being held with psychiatric patients when Percy himself was not suffering from a psychiatric disorder; additional restrictions on Percy because of the movement of visitors in Thomas Embling Hospital; restrictions on Percy’s accommodation due to his security; the ‘potential for his presence at Thomas Embling Hospital to be disruptive’: ibid [73], considered under the s 40(1)(f) court power to take any other matter into account; and the unlikelihood that he could secure employment and have access to a computer: see generally [65]–[77].

[158] Ibid [72].

[159] Ibid [75].

[160] Ibid [63].

[161] Unlike Castles [2010] VSC 310; (2010) 28 VR 141, Coghlan J did not mention VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436, which was delivered only two weeks prior to his Honour’s judgment. Any difficulties with Justice Coghlan’s reasoning thus cannot be attributed to the VCA Momcilovic methodology.

[162] [2007] VSC 142.

[163] Ibid [4].

[164] Ibid [5]. For the HRC’s view on this, see above nn 112, 114; for the ACT Human Rights Commissioner’s view, see above 115; and for the ECtHR’s view, see above n 116.

[165] See Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 3rd ed, 2013) 278–80 [9.131]–[9.135], 282–3 [9.141]–[9.144], 309–28 [9.200]–[9.249], especially 322–3 [9.232]– [9.236]; Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford University Press, 2nd ed, 2009) vol 1, ch 8, especially 504–12 [8.96]–[8.116], 616–23 [10.122]–[10.142], 644–6 [10.201]–[10.207], 667–9 [10.267]–[10.271]; Alex Conte and Richard Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (Ashgate, 2nd ed, 2009) 124–30.

[166] Section 32(2) of the Charter states: ‘International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision’.

[167] It must be acknowledged that Charter jurisprudence indicates that international, regional and comparative human rights jurisprudence should be approached with care, particularly given the different constitutional settings within which similar human rights instruments are applied: see HCA Momcilovic (2011) 245 CLR 1 37–8 [19]–[20] (French CJ), 90 [159] (Gummow J), 123 [280] (Hayne J relevantly concurring); Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197, [182] (Warren CJ), [387], [446]–[447] (Tate JA), [631] (Santamaria JA). This certainly does not detract from the value and worth of seeking guidance from international, regional and comparative human rights jurisprudence. Rather, it emphasises caution in wholesale acceptance of such jurisprudence, and stringent analysis of its applicability to the Charter. As Warren CJ stated, ‘the jurisprudence from these [constitutional] jurisdictions may be of assistance in determining comparable principle’: Re Application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381; (2009) 24 VR 415, 438 [97]. As Tate JA stated, ‘[t]he High Court made it plain in Momcilovic that reasoning based upon a wholesale application of English law, without an appreciation of the differences in legal systems and constitutional settings, would be likely to mislead’: Bare v Independent Broad-based Anti-corruption Commission [2015] VCSA 197, [446].

[168] Article 10(2)(a) of the ICCPR states that ‘[a]ccused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons’. Section 22(2) states that ‘[a]n accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary’. When ratifying the ICCPR, Australia lodged a reservation for art 10(2), essentially accepting segregation as an objective but agreeing to achieve this only progressively:

In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraphs 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.

International Covenant on Civil and Political Rights, ratification by Australia 13 August 1980, 1197 UNTS 411 (with effect 13 November 1980).

[169] The HRC has found individual violations of art 10(2): see, eg, Human Rights Committee, Communication No 289/1988, 44th sess, UN Doc CCPR/C/44/D/289/1988 (1992) [6.8] (‘Wolf v Panama’); Human Rights Committee, Views: Communication No 868/1999, 79th sess, UN Doc CCPR/C/79/D/868/1999 (11 November 2003) 12 [7.3] (‘Wilson v Philippines’). Both cases were straightforward scenarios of an unconvicted person being detained with convicted persons, with the HRC making routine findings of violations. The HRC has noted that ‘segregation is required in order to emphasize their status as unconvicted persons who at the same time enjoy the right to be presumed innocent’ under art 14(2): see above n 114, at [9]. Although the HRC has not addressed the issue of persons not convicted because of unfitness to be tried, its approach to art 10(2) is no-nonsense and straightforward. It is difficult to conceive of the Percy Review raising shades of doubt sufficient for the HRC to not find a violation of art 10(2) were similar facts to present. See also the South African case of Zealand v Minister for Justice and Constitutional Development [2008] ZAECHC 14; [2008] 2 SACR 1. Relying on the presumption of innocence in s 35(3)(h) of the Constitution of the Republic of South Africa 1996 (South Africa), and the right of the accused to be segregated from the convicted under art 10(2) of the ICCPR, the Constitutional Court of South Africa found that Zealand had been arbitrarily deprived of his freedom without just cause under s 12(1)(a) of the Constitution of the Republic of South Africa 1996 (South Africa): see especially Zealand v Minister for Justice and Constitutional Development [2008] ZAECHC 14; [2008] 2 SACR 1, [30], [32], [34] (Langa CJ).

[170] Moreover, the ECtHR has rejected an argument that the art 6(2) right to the presumption of innocence requires a special detention regime for unconvicted persons:

The Court recalls that the Convention contains no Article providing for separate treatment for convicted and accused persons in prisons. It cannot be said that Article 6 § 2 has been violated on the grounds adduced by the applicant.

There has accordingly been no violation of Article 6 § 2 of the Convention.

Peers v Greece [2001] III Eur Court HR 275, 298 [78].

[171] Article 3 of the ECHR states: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.

[172] A violation of the art 3 prohibition of torture under the ECHR was argued in Aerts v Belgium [1998] V Eur Court HR 1939, with the majority of the ECtHR finding that no violation had occurred: at 1966 [67], and two dissenting Judges finding a violation of art 3: at 1971 [7] (Judges Pekkanen and Jambrek). See also Claes v Belgium (European Court of Human Rights, Chamber, Application No 43418/09, 10 April 2013), where the ECtHR found a violation of art 3.

[173] See G v France (European Court of Human Rights, Chamber, Application No 27244/09, 23 May 2012).

[174] Previously, in 1984, he was found guilty of sexually abusing children and disseminating pornography.

[175] Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013) [8].

[176] Ibid [14].

[177] Ibid [37].

[178] Ibid [42]–[43]. The provisions were also incompatible because ‘they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty’: at [42].

[179] Ibid [48].

[180] Ibid [47].

[181] [2009] VI Eur Court HR 169.

[182] Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013) [46].

[183] Ibid.

[184] Ibid.

[185] And until 31 May 2013: ibid [44].

[186] Ibid [44]. Courts considering the cases of the retrospective detainees had to

examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if ... they suffered from a mental disorder within the meaning of ... the ... Therapy Detention Act.

If the pre-conditions were not met, the detainee had to be released; if the pre-conditions were met, assessment of release vis-a-vis detention was subject to a strict proportionality review; ie, ‘proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released’.

[187] On 16 September 2011, the Regional Court found that the applicant’s 10 years of preventative detention would be reached on 26 October 2011: ibid [14].

[188] Ibid [19]. In essence, both preconditions discussed at above n 184 were met: at [15]–[17]. In relation to the latter, although the applicant was not pathological, he did fall within the definition of ‘mental disorders’ for the purposes of the Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter [Act on Therapy and Detention of Mentally Disturbed Violent Offenders] (Germany) 22 December 2010, BGBI I, 2010, 2300 (‘Therapy Detention Act’): at [18], [50]. The term ‘mental disorders’ was defined by reference to art 5(1)(e) of the ECHR. It did not require diminished or exclude criminal responsibility; and was not limited to mental illnesses that were to be treated clinically but included dissocial personality disorders. The applicant’s appeal to the Court of Appeal was dismissed and the FCC declined to hear the applicant’s constitutional argument: at [20]–[21].

[189] Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013).

[190] Ibid [75] (emphasis added).

[191] It was also noted that deprivation of liberty under art 5(1)(e) requires three conditions: (a) that a person is reliably shown to be of unsound mind; (b) that the mental disorder is ‘of a kind or degree warranting compulsory confinement’; and (c) that the disorder persists: ibid [72]. The Court noted at [73] that requirement (b) is satisfied

if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons ....

[192] The ECtHR did review the evidence and findings that the applicant was of unsound mind: ibid [78]–[89], but held that it did ‘not have to give a definitive answer to the question of the applicant’s classification’: at [90].

[193] Ibid [17].

[194] This included the equipment in his cell, more freedom of movement within the wing and courtyard, more leisure activities and less restricted telephone use: ibid [94].

[195] Ibid [95].

[196] Ibid [96] (emphasis added). The ECtHR did note that ‘positive and extensive measures’ had been taken to adapt the conditions of preventative detention to align more closely with the right to liberty: at [99], and that ‘transitional periods’ are needed to adapt and implement new laws and practices: at [101].

[197] Ibid [104].

[198] Ibid [106], [107]. The ECtHR also found a violation of art 7. The applicant’s preventative detention was imposed following his criminal conviction, and the power to impose the preventative detention was only exercisable against persons who had, inter alia, been sentenced for at least three years’ imprisonment. Moreover, the civil option of detention under the Therapy Detention Act – ‘aimed at the medical and therapeutic treatment and reduction of the current dangerousness of persons suffering from a mental disorder, who previously manifested that they posed a high risk to the public by committing a serious criminal offence’: at [122] – was not used. The ECtHR held that the applicant’s preventative detention beyond the 10 years and into the ‘transitional period’ is a ‘penalty’ and thereby violates art 9(1).

[199] This was relevant to the claim based on art 7 of the ECHR, but an art 7 claim would not be made in Percy’s case because he had never been convicted of a crime and punished.

[200] This is a difference of form rather than substance, and should not preclude consideration of the ECtHR jurisprudence by Victorian courts: see above n 167.

[201] Relevant jurisprudence has been developing in the ECtHR since Ashingdane v United Kingdom (1985) 93 Eur Court HR (ser A): see Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013).

[202] Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013) [41].

[203] Percy Review [2010] VSC 179, [21] (Coghlan J).

[204] Ibid.

[205] Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013) [46]. See above n 183 and accompanying text.

[206] Ibid.

[207] Indeed, it was acknowledged that ‘not very much is known clinically about the reviewee’: see above n 137 and accompanying text.

[208] Glien v Germany (European Court of Human Rights, Chamber, Application No 7345/12, 28 November 2013) [75] (emphasis added). See above n 190 and accompanying text.

[209] Ibid [95]. See above n 195 and accompanying text.

[210] Ibid [96] (emphasis added). See above n 196 and accompanying text.

[211] [1998] V Eur Court HR 1939.

[212] It was the Committals Chamber within the Belgian court system: at 1944 [8].

[213] Aerts v Belgium [1998] V Eur Court HR 1939, 1961 [45].

[214] Ibid 1962 [47].

[215] Ibid 1962 [46].

[216] Ibid 1962 [49].

[217] Ibid.

[218] The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (‘CPT’) is established under the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, opened for signature 26 November 1987, ETS No 126 (entered into force 1 February 1989 (‘ECPTIDTP’), and is tasked with examining the treatment of persons deprived of their liberty, via visiting places of detention, with a view to strengthening the protection of detained persons from torture and inhuman and degrading treatment or punishment: ECPTIDTP art 1. The report of the CPT on Belgium noted that detaining persons designated as mental health detainees in psychiatric wards of prisons ‘for lengthy periods ... carries an undeniable risk of causing their mental state to deteriorate’: Report on Belgium, European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, 14 October 1994, [190]. The CPT highlighted the inappropriateness of psychiatric wings of prisons for long term care: ‘The psychiatric wing admits patients needing psychiatric observation and/or care, but it has neither the facilities nor the staff appropriate to a psychiatric hospital. The standard of care ... fell below the minimum acceptable from an ethical and humanitarian’ viewpoint: at [191]. The CPT recommended that resolution of this issue should be a high priority.

[219] Morsink v Netherlands (European Court of Human Rights, Chamber, Application No 48865/99, 11 May 2004).

[220] Ibid [9].

[221] Ibid [9], [53].

[222] More particularly, treatment ‘is aimed at helping persons subject to a TBS order to gain insight into and control over their disorders, to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society’: ibid [32].

[223] Three-month extensions were available ‘if placement proves impossible’: ibid [33].

[224] Ibid [69].

[225] The ECtHR accepted that placement procedures may commence after the TBS order came into effect, holding that ‘it would be unrealistic and too rigid an approach to expect the authorities to ensure that a place is immediately available in the selected custodial clinic’: ibid [67]. Further, the ECtHR accepted ‘that, for reasons linked to the efficient management of public funds, a certain friction between available and required capacity in custodial clinics is inevitable and must be regarded as acceptable’.

[226] Ibid [69].

[227] The Victorian Ombudsman has raised the lack of availability of psychiatric services for mentally ill prisoners on multiple occasions, most recently noting that:

Despite having identified in my 2011 report to Parliament the grossly inadequate number of psychiatric beds for the treatment of prisoners with mental health conditions, and calling for an increase in the number of beds, there has been no increase. With overcrowding in the prison system the situation has worsened for prisoners with mental health issues. ...

Compounding this issue is the lack of mental health beds at the secure Thomas Embling Hospital. My investigation established that only the most acutely unwell prisoners are receiving treatment at the hospital.

Victorian Ombudsman, Investigation into Deaths and Harms, above n 16, 13 [31]–[32] (citations omitted).

The Victorian Institute of Mental Health, which operates the Thomas Embling Hospital, has also noted the shortfall in their annual report as follows: ‘The pace of increase in prison numbers has not been matched by a concomitant increase in capacity at Thomas Embling Hospital, where bed numbers remain at the level that was designed for a prison system 40% of its current size’: Victorian Institute of Forensic Mental Health, 2013–2014 Report of Operations (2014) 3.

[228] Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13, 407. This is not consistent with the HRC’s view: see above nn 112, 114 and accompanying text.

[229] Comparative jurisprudence also indicates that a failure to acknowledge a breach of a Charter right by definition means the breach remains unremedied, despite the reduction in sentence, such that the victim has not received an effective remedy: Mathew v Netherlands (European Court of Human Rights, Chamber, Application No 24919/03, 29 September 2005). This is very relevant to DPP (Vic) v Foster (Unreported, County Court of Victoria, Judge Gucciardo, 17 February 2014) (‘Foster’) below.

[230] (Unreported, County Court of Victoria, Judge Gucciardo, 17 February 2014).

[231] The riot caused the Melbourne Remand Centre to remain in lockdown for several days while the perimeter systems were repaired, with the total cost of the incident response work, including additional staffing, and repair work, being in excess of $320 000: ibid 3–4 [15].

[232] His sentence expiring in May 2015: ibid 10 [46].

[233] Ibid 12 [52].

[234] Ibid 12 [53].

[235] Ie, in that his Honour ‘reduce[d] the length of the sentence because of the onerous conditions which, in [his] view, are substantially more burdensome than normal reclusion’: ibid 12 [56].

[236] Ibid 13 [59]. Media reports indicate that the five prisoners remained in solitary confinement even after Judge Gucciardo’s decision: Simon Lauder, ‘Prisoners Back in Solitary Confinement at Barwon Prison despite Criticism from Judge’, ABC News (online), 7 March 2014 <> .

[237] Foster (Unreported, County Court of Victoria, Judge Gucciardo, 17 February 2014) 14 [62]. In so noting, Judge Gucciardo emphasised that he was ‘not passing judgment on correctional practises’ or ‘comment[ing] on the use of management units for long periods’: at 13 [59], 14 [62].

[238] Human Rights Committee, General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (Replaces General Comment No 7), 44th sess, UN Doc HRI/GEN/1/Rev 9 (Vol I) (10 March 1992) 2 [6] (‘General Comment No 20’).

[239] [2012] VSCA 163. The recent case of R v Binse [2014] VSC 253 is another example of a sentencing decision accounting for the conditions of detention in reducing a sentence, without any reference to the Charter. In response to the prosecutor’s submission that Binse was ‘the architect’ of his assessment as ‘a long term management prison’, Forrest J noted that ‘there is no rule which says that where a prisoner’s conduct results in them being placed in a restrictive prison environment that fact disentitles them to a sentencing benefit arising from that onerous custodial environment’: at [38]. His Honour found that Binse’s ‘likely future accommodation will be so restrictive and of such a length that it would be inhumane to deny [Binse] some sentencing benefit arising from these factors’, without any mention of the Charter: at [42]. His Honour was also ‘satisfied that there is a serious risk that future imprisonment in the restricted custodial environment ... will have a significant adverse effect on [Binse’s] mental health’: at [43]. His Honour held that the custodial setting and the mental health implications combined to justify a mitigation of punishment: at [2014] VSC 253, [44].

[240] Collins v The Queen [2012] VSCA 163, [4] (Warren CJ and Redlich JA).

[241] Ibid [76] (Hansen JA).

[242] Mr Money, Director of the Sentence Management Branch of Corrections Victoria, gave evidence that the ‘basic principle of prisoner placement is to place the prisoner in the least restrictive environment, having regard to the prisoner’s sentence, the prisoner’s interaction with other prisoners, and the other factors described in regulation 26 of the Corrections Regulations 2009’: ibid [6].

[243] Ibid [75] (Hansen J).

[244] Ibid [77].

[245] Ibid. ‘In these circumstances, it seems that little can be done at present to integrate the appellant with other prisoners, and particularly bearing in mind that the authorities ... bear the legal responsibility for the safety and welfare of the appellant’.

[246] Ibid [77].

[247] Ibid [4].

[248] Ibid [8].

[249] Ibid [9]. ‘But observing a code of a silence [sic] is to be expected from a career criminal like the appellant. The prison system ought be able to adequately cope with such persons’.

[250] Ibid [12] (emphasis altered).

[251] In Warwick v The Queen [2014] VSCA 114, it was argued that serving a sentence in solitary confinement for a long period was ‘fresh evidence’ supporting an appeal against sentence. Leave to appeal against sentence was not granted because the trial judge was fully aware of the conditions of imprisonment when sentencing: at [7], and there had been no ‘relevant change in position from the position as it was described and understood by the trial judge at the time of sentence’: at [10]. There was no reference to the Charter in Warwick v The Queen. In Spijodic v The Queen (2014) 68 MVR 269, the Court of Appeal refused leave to appeal against a sentence based on ‘fresh evidence’ pertaining to the applicant’s medical condition. In essence, the Court of Appeal held that the applicant received a lenient sentence (‘[h]e may well consider himself to be fortunate to have been dealt with as benevolently as he was’: at [35]), and the fresh evidence did not ‘suggest that the applicant’s condition is potentially life threatening’ or that ‘he is being denied urgent medical attention, or treatment, as a result of his continued incarceration’: at [36]. Again, there was no mention of the Charter.

[252] Human Rights Committee, Views: Communication No 1184/2003, 86th sess, UN Doc CCPR/C/86/D/

1184/2003 (27 April 2006).

[253] The HRC has expressed particular concern ‘about the wide use of solitary confinement for incarcerated persons following conviction, and especially for those detained prior to trial and conviction’: Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant — Concluding Observations of the Human Rights Committee: Denmark, 70th sess, UN Doc CCPR/CO/70/DNK (15 November 2000) 3 [12] (‘Concluding Remarks on Denmark’), quoted in Joseph and Castan, above n 165, 318–19 [9.220]. The Committee found that ‘solitary confinement is a harsh penalty with serious psychological consequences and is justifiable only in case of urgent need; the use of solitary confinement other than in exceptional circumstances and for limited periods is inconsistent with article 10, paragraph 1’.

[254] Brough was segregated ‘on the ground that his association with other inmates constituted a threat to the personal safety of inmates and to the security’ of the Correctional Centre: Brough v Australia, UN Doc CCPR/CO/70/DNK, 4 [2.4]. Note that Brough’s art 10(3) claim was found to be inadmissible because, although Brough was detained in an adult facility, he was segregated from adult prisoners within the facility: at [8.3(b)].

[255] ‘Safe cells’ are for prisoners at risk of self-harm: see ibid 5 [2.5].

[256] Ibid 5–6 [2.6]–[2.14].

[257] Ibid 18 [9.4].

[258] The failure of the trial judge to properly take into account Collins’ advanced age was a ground of appeal: Collins v The Queen [2012] VSCA 163, [51], [65]–[74] (Hansen JA).

[259] Foster (Unreported, County Court of Victoria, Judge Gucciardo, 17 February 2014) 12 [53]. Judge Gucciardo was prescient with these comments, with Sam Liszczak currently on remand in prison awaiting trial for allegedly committing fresh criminal offences: ‘Vic Shooters Linked to Williams Attack’, Sky News (online), 21 July 2015 <> .

[260] See Clayton and Tomlinson, above n 165, 511–12 [8.114]–[8.116].

[261] (European Court of Human Rights, Chamber, Application No 24626/09, 9 October 2012).

[262] Ibid [8].

[263] Ibid [9]–[10].

[264] Ibid [33].

[265] Ibid [34].

[266] Ibid [40].

[267] Ibid.

[268] Ibid [45]. In particular, the conditions, ‘exacerbated by the lack of an effective remedy’, led to the breach. The applicant had attempted to get the solitary confinement lifted in numerous court proceedings, but failed: see at [12]–[22]. The ECtHR also held that the applicant had been discriminated against on the basis of his sexual orientation, relying on art 14 when read with art 3: at [46]–[58].

[269] Ibid [42].

[270] The source of the fear in X v Turkey was the prisoner himself, whereas the source of the fear in Collins was the prison authorities. However, this difference is of no consequence because no significance was attached to the source of the fear in X v Turkey.

[271] This is confirmed in DF v Latvia (European Court of Human Rights, Chamber, Application No 11160/07, 29 October 2013), where Latvia was found to violate art 3 because it did not adequately protect a police informer.

[272] Collins v The Queen [2012] VSCA 163, [77]. This would have required direct examination and assessment of the justification, necessity and proportionality of the confinement; the safeguards in place to ensure the confinement does not become unjustified; and the procedures in place to ensure Collins’ physical and psychological condition could withstand solitary confinement: X v Turkey (European Court of Human Rights, Chamber, Application No 24626/09, 9 October 2012) [40].

[273] [2014] CSIH 18A.

[274] Ibid [43]. Shahid outlined five conditions to be satisfied. In addition to proper purpose, they were: secondly, procedural safeguards to ensure the continued justification for the segregation must be in place, such as regular reviews of the situation, concerning the substance of the matter and with input from the prisoner segregated; thirdly, reasons must be given for continuing the segregation; fourthly, the prisoner must not be held ‘total isolation’ – ie, the prisoner must have some access to telephones and visitors, and to regular exercise; and fifthly, the prisoner’s health must be kept under review. On the facts of the case, the reclaimer had been held in solitary confinement for four years and eight months because of repeated threats by other prisoners, linking back to the racial motivation behind the crime committed by the reclaimer. Having considered the five factors for an art 3 violation, the Lords of Appeal held ‘that the reclaimer’s segregation was a proportionate response to the threat to his safety and the secondary threat to discipline within the prison’, such that there was no violation of art 3: at [44].

[275] Foster (Unreported, County Court of Victoria, Judge Gucciardo, 17 February 2014) 14 [62].

[276] [2013] NZCA 545; [2014] NZAR 67. In this case, a prisoner was charged with numerous counts of using a drug without the authority of a medical officer and refusing to provide urine samples. The statutory maximum penalty was ‘confinement in a cell for any period not exceeding 15 days’: Penal Institutions Act 1954 (NZ) s 33(3)(g), as repealed by Corrections Act 2004 (NZ) sch 4 pt 1. Vogel pleaded guilty, and expressly requested to be sentenced to 21 days in solitary confinement in order to break his drug habit, which Vogel knew was a significant factor affecting his chances of securing parole: Vogel v Attorney-General (NZ) [2013] NZCA 545; [2014] NZAR 67 [21]. The Judge sentenced him to 21-days of solitary confinement: at [21]. The “principal restrictive features” of the sentence were: confinement to his cell for 23 hours a day; one hour for exercise and a shower; no access to television or radio, but access to reading materials; no visitors or telephone calls:

at [29].

[277] NZBORA s 23(5).

[278] Ibid [72]. Section 23(5) also cast a positive duty on the State ‘to ensure ... that the sentence imposed did not exceed the statutory maximum’: at [72].

[279] Ibid [72].

[280] Ibid [73]. Vogel’s confinement was held to violate the NZBORA (at [68] and [75]), with Vogel’s vulnerability factors of drug addiction and diagnosed mental health issues being central to assessing whether the sentence could be safely imposed (at [71] and [72]). As with Brough v Australia, Vogel v Attorney-General (NZ) highlights the influence of vulnerability factors on sentencing and conditions of detention, and its application given the positive State duty to assess the safety of both. The Court of Appeal held that the confinement did not violate the right not to be subjected to torture or cruel, degrading or disproportionately severe treatment or punishment under s 9 of NZBORA (at [66]), which was consistent with the finding of the trial judge (at [65]).

[281] Collins v The Queen [2012] VSCA 163, [4] (Warren CJ and Redlich JA).

[282] Callanan v Attendee X [2013] QSC 340; Callanan v Attendee Y [2013] QSC 341; Callanan v Attendee Z [2014] 2 Qd R 11.

[283] The policy is described in Callanan v Attendee X [2013] QSC 340, [28] (Applegarth J). A document entitled Southern Queensland Correction Centre Detention Unit Management (29 October 2013) contained the departmental policy applying to persons sentenced to imprisonment as punishment for contempt if those persons are ‘identified participants’ in a criminal organisation. The Queensland Police Service gives the Queensland Corrective Services Intelligence Group a list of criminal motorcycle gang (CGM) members. Under the policy, a ‘CGM prisoner’ is placed in a ‘Restricted Management Unit’ at Woodford Correctional Centre, and is subject to a ‘Restricted Management Regime’, including 22-hour lockdown.

[284] [2013] QSC 340, [23].

[285] Ibid [27].

[286] Ibid [33].

[287] Ibid [55].

[288] Ibid [55].

[289] Justice Applegarth relied on the ICCPR arts 7, 10: Callanan v Attendee X [2013] QSC 340, [41]. At [40], his Honour quoted from Concluding Remarks on Denmark, UN Doc CCPR/CO/70/DNK, 3 [12]:

solitary confinement is a harsh penalty with serious psychological consequences and is justifiable only in case of urgent need; the use of solitary confinement other than in exceptional circumstances and for limited periods is inconsistent with article 10, paragraph 1, of the Covenant.

His Honour cited (at [40]) from the HRC, General Comment No 20, UN Doc HRI/GEN/1/Rev 9 (Vol I), 2 [6]: ‘The Committee notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7’. His Honour also cited (at [40]) from the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Standard Minimum Rules for the Treatment of Prisoners, UN Doc A/CONF6/C1/L1 (14 February 1955), held in Geneva in 1955, and approved by the Economic and Social Council by ECOSOC resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977).

[290] Justice Applegarth cited especially Sharon Shalev, A Sourcebook on Solitary Confinement (Mannheim Centre for Criminology, 2008) <> . Particular emphasis was placed on the long-term psychological damage of solitary confinement, and that solitary confinement ought to only be used in exceptional circumstances and for limited periods of time: Callanan v Attendee X [2013] QSC 340, [34]–[38].

[291] In the series of bail decisions for Paul Dale, Charter-based arguments were not made in support of bail applications, even though relevant and persuasive. Justice Byrne in Re Dale [2009] VSC 332 expressed concerns that clearly raised issues under ss 22(1), (2): at [15]–[17]), yet the Charter rights had no explicit influence in counsel’s arguments or the judicial reasoning. The Court of Appeal, in Dale v DPP (Vic) [2009] VSCA 212, queried whether Dale’s ‘treatment can be reconciled’ with s 22(1): at [38]; see also [33], [35]. Still, their Honours held ‘that question does not, however, fall for consideration in this appeal, and hence we express no view about it’: at [38]. Charter arguments were not pursued, even though judges at both levels identified Charter-relevant factors such as inhumane treatment, violation of the presumption of innocence, and arbitrary interference with family.

[292] See, eg, R (Anderson) v Secretary of State for the Home Department [2002] EWCA Crim 747; [2003] 1 AC 837. See generally Clayton and Tomlinson, above n 165, 605–16 [10.95]–[10.121], 669–71 [10.272]–[10.275].

[293] One other judgment made a passing reference to the Charter: in Tarrant v Townsend (Unreported, Magistrates’ Court of Victoria, Magistrate Garnett, 7 August 2010), Magistrate Garnett noted that ‘in considering the appropriate sentence I have taken into account ... the fact that he has been detained in the custody centre for an excessive period of 10 days which, in my opinion, is contrary to s 22 of the Charter... due to its inhumane conditions’: at [9].

[294] [2009] VSC 375. Kent was originally charged with being a member of a terrorist organisation, but the jury was discharged because it could not reach a verdict. Subsequently, Kent was charged with two different terrorism-related offences, to which he pleaded guilty.

[295] Ibid [32].

[296] Ibid.

[297] Ibid [41]. Justice of Appeal Bongoirno acknowledged that Kent suffered ‘from a recurrent major depressive disorder of moderate to severe clinical intensity’: at [30]. Justice of Appeal Bongiorno also indicated that Kent’s psychiatric condition would be considered in relation to general and specific deterrence: at [41]. With these and other factors in mind, Bongiorno JA proceeded to sentence Kent to 4.5 years’ imprisonment for being a member of a terrorist organisation, and 2.5 years’ imprisonment for being reckless as to the making of a document connected with a terrorist act, with the non-parole period of three years and nine months: at [50].

[298] Procedural hurdles have also been identified as ‘chilling’ Charter arguments. In R v Benbrika [2008] VSC 80; (2008) 18 VR 410, the Charter right to a fair trial was not argued because, inter alia, reliance on the Charter would trigger the obligation to notify the Attorney-General and VEOHRC under s 35(1)(a) which, according to Bongiorno J, ‘would, of necessity, involve delay – perhaps considerable delay – which in the context of [this application] would be at least inconvenient and perhaps even intolerable’: at [17]. Intentionally or otherwise, s 35 may be used to delay or disrupt proceedings, and is a disincentive to reliance on the Charter. Section 35 ought to be amended. Justice Bongiorno suggested a residual judicial discretion ‘to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason’ noting the importance of this in criminal proceedings: at [18].

[299] See, eg, Collins v The Queen [2012] VSCA 163; Brazel v Westin [2014] VSC 344, [90] (Osborn JA).

[300] See, eg, DPP (Vic) v Foster (Unreported, County Court of Victoria, Judge Gucciardo, 17 February 2014).

[301] Groves, above n 6, 217.

[302] See, eg, Castles [2010] VSC 310; (2010) 28 VR 141.

[303] For an exploration of VCA Momcilovic [2010] VSCA 50; (2010) 25 VR 436 and HCA Momcilovic (2011) 245 CLR 1, see Debeljak, ‘Who Is Sovereign Now?’, above n 92; Debeljak, ‘Proportionality, Interpretation and Declarations’, above n 92.

[304] In the context of security, competing interests are cast widely, encompassing the security of the community beyond the prison, of other detainees and persons within the prison, and of the individual detainee within the prison: see Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13 and 109.

[305] See Naylor, ‘Protecting the Human Rights of Prisoners’, above n 13.

[306] See, eg, Castles [2010] VSC 310; (2010) 28 VR 141. However, even this decision did not turn on the Charter. See also Percy Review [2010] VSC 179 and Rich [2010] VSC 390. Section 38 has been used successfully in contexts other than prisons.

[307] See Charter ss 3(1) (definition of ‘public authority’), 4.

[308] See, eg, Re Dale [2009] VSC 332; Justice Emerton’s comments in Castles [2010] VSC 310; (2010) 28 VR 141, 176 [145], quote above n 102; Brazel v Westin [2013] VSC 527, [23] (Kaye J), quoting Fyfe v South Australia [2000] SASC 84, [18] (Martin J); Brazel v Westin [2014] VSC 344, [50] (Osborn JA), quoting Rainsford v Governor, Her Majesty’s Prison at Ararat [2000] VSC 141, [47] (Eames J). More recently, Rush J in Knight v Shuard [2014] VSC 475 held:

It is not for judges, save in the most obvious of cases, to supervise or interfere with the administrative decisions of prison authorities concerning the conduct of prisons and prisoners. While acknowledging that prisoners are in a position of particular disadvantage and any abuse of power by prison authorities is unacceptable ‘... the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and it is difficult to understand or fully appreciate from the comfort of court surroundings.

[309] Francesca Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights (Penguin Books, 2000).

[310] HCA Momcilovic (2011) 245 CLR 1

[311] For more in-depth analysis, see Julie Debeljak, ‘Proportionality, Interpretation and Declarations’, above n 92. See also Justice Pamela Tate, ‘Statutory Interpretive Techniques under the Charter: Three Stages of the Charter – Has the Original Conception and Early Technique Survived the Twists of the High Court’s Reasoning in Momcilovic?’ [2014] 2 Judicial College of Victoria Online Journal; Sir Anthony Mason, ‘Statutory Interpretive Techniques under the Charter – Section 32’ [2014] 2 Judicial College of Victoria Online Journal 69.

[312] HCA Momcilovic (2011) 245 CLR 1, 91–2 [166]–[168] (Gummow J), 123 [280] (Hayne J relevantly concurring); 165–70 [415]–[426], especially 165 [415], 166 [417] (Heydon J); 247–50 [678]–[685], especially 249–50 [683] (Bell J).

[313] Ibid 91 [166], 92 [168], 91–9 [190]–[199] (Gummow J), 123 [280] (Hayne J relevantly concurring); 181–3 [450]–[452] (Heydon J); 250 [684] (Bell J). The main point of difference between the UK and NZ methods is how “strong” the remedial use of s 32(1) would be – with s 3(1) of the Human Rights Act 1998 (UK) being described as “strong” and s 6 of the Bill of Rights Act 1990 (NZ) being “weak”. Justices Gummow, Hayne and Bell were certainly prepared to go as far as the NZ judges. Justice Heydon went further, holding that s 32(1) was a codification of the British case of Ghaidan. In the end, the strength of the rights-compatible interpretation enforcement mechanism is less important than the inclusion of proportionality analysis as part of the interpretative exercise aimed at interpretations that are “compatible with human rights”, and a re-visiting of statutory interpretation where an interpretation that is not “compatible with human rights” is not reasonable and/or demonstrably justified.

[314] Debeljak, ‘Proportionality, Interpretation and Declarations’, above n 92, 382–5.

[315] HCA Momcilovic (2011) 245 CLR 1, 50 [51] (French CJ).

[316] Ibid 92–93 [168], [170]–[171] (Gummow J), 123 [280] (Hayne J relevantly concurring); 250 [684] (Bell J). Indeed, Heydon J explicitly rejects the VCA Momcilovic characterisation of s 32 as codifying the principle of legality: at 164 [411], 181 [450].

[317] After an analysis of the meaning of s 32: ibid 210 [544]–[545], Crennan and Kiefel JJ hold that ‘[s]ection 32 does not state a test of construction which differs from the approach ordinarily undertaken by courts towards statutes ... The Charter forms part of the context in which a statute is to be construed’: at 217 [565]. Their Honours relied on Lord Hoffman in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30; [2005] 1 WLR 1718, 1723 [17]. Accordingly, their Honours do not explicitly accept the argument that s 32 is simply a codification of the principle of legality, and do explicitly reject the VCA Momcilovic methodology which is based on the principle of legality codification argument: HCA Momcilovic (2011) 245 CLR 1, 217 [565].

[318] [2008] VSCA 265; (2008) 21 VR 526, especially 552–8 [96]–[120] (Nettle JA).

[319] [2009] VSC 53; (2009) 29 VR 1.

[320] [2009] VSC 381; (2009) 24 VR 415.

[321] The author would like to thank an anonymous reviewer for this point. There are differences in remedial provisions across the international, regional and comparative rights instruments. These differences in remedies may impact on litigation strategies under the different instruments. Discussion of this is beyond the scope of this article. However, it suffices to say that the Charter has similar remedy provisions to the Human Rights Act 1998 (UK) c 42 and the NZBORA: Julie Debeljak, ‘Parliamentary Sovereignty and Dialogue under the Victorian Charter of Human Rights and Responsibilities: Drawing the Line between Judicial Interpretation and Judicial Law-Making’ [2007] MonashULawRw 1; (2007) 33 Monash University Law Review 9; Debeljak, ‘Who is Sovereign Now?’, above n 92. One could expect Victorian jurisprudence to be at least as effective as the jurisprudence in these jurisdictions.

[322] See above n 304 and accompanying text.

[323] Dame Sian Elias notes that, in the context of a 21-year retrospective on the NZBORA, Sir Geoffrey Palmer implored the judiciary to ‘step up’ on the subject of human rights, and noted that the judiciary’s ‘tactical reticence’ to ‘conflict with the political branches of government is destructive of human rights’: Chief Justice Dame Sian Elias, ‘A Voyage around Statutory Protections of Human Rights’ [2014] 2 Judicial College of Victoria Online Journal 4, 9, citing Sir Geoffrey Palmer, ‘The Bill of Rights after Twenty-One Years: The New Zealand Constitutional Caravan Moves On?’ (2013) 11 New Zealand Journal of Public and International Law 257.

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