Humane treatment and respect for the dignity of persons deprived of liberty
Threshold: a deprivation of liberty
Section 22(1) applies to all persons who have been deprived of liberty, whether convicted of a crime or otherwise. It requires that all persons deprived of liberty must be treated with humanity and respect for their inherent human dignity.
The content of s 22(1) is informed by art 10 of the ICCPR (De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647;  VSC 111 ; Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children  VSC 796  (‘Certain Children (No 1)’ ).
In Castles v Secretary to the Department of Justice, the Court found that, in analysing the scope of s 22(1), ‘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’. The Court recognised, however, that the enjoyment of rights by persons deprived of liberty would necessarily be compromised to some extent (Castles v Secretary to the Department of Justice (2010) 28 VR 141; VSC 310 - (‘Castles’); De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647;  VSC 111 ; Certain Children (No 1)  VSC 796 ; Certain Children v Minister for Families and Children & Ors (No 2)  VSC 251  ('Certain Children (No 2)'); see also UN Human Rights Committee, General Comment No. 21 -).
Section 22(1) applies only when a person is deprived of liberty. Persons will be deprived of their liberty when they are held, for example, in prisons, psychiatric hospitals or correctional institutions, including those run by private commercial organisations that fall within the definition of public authority(see UN Human Rights Committee, General Comment No. 21 (Article 10),44thsess (1992), UN Doc. HRI/GEN/1/Rev.6 at 153 (2003) (‘General Comment No. 21’); Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 2nd ed, 2000) [9.917]).
Under the Charter, deprivation of liberty is to be distinguished from mere restrictions on freedom of movement. The difference is ‘one of degree or intensity, not one of nature and substance’ (Kracke v Mental Health Review Board (2009) 29 VAR 1;  VCAT 646 , ; Director of Public Prosecutions v Kaba (2014) 44 VR 526;  VSC 52 -; Woods v DPP (2014) 238 A Crim R 84;  VSC 1 -).
A number of UN standards may be useful in determining the scope of the right in s 22(1), for example:
the Standard Minimum Rules for the Treatment of Prisoners (1957)
the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988)
the Code of Conduct for Law Enforcement Officials (1978)
The UN Standard Minimum Rules for the Treatment of Prisoners covers matters such as accommodation conditions, adequate food, personal hygiene, clothing and bedding standards, exercise, medical services, and disciplinary procedures.
Under the ICCPR, the application of the right cannot depend on government resources, and must be applied without distinction on the grounds of, for example, ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (UN Human Rights Committee, General Comment No. 21).
However, the UN Human Rights Committee has implied that particular vulnerabilities of the detainee may influence the requirements of the right:
In the circumstances, the [applicant]’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. The Committee therefore concludes that the [applicant]’s treatment violated article 10, paragraphs 1 … of the Covenant (Brough v Australia, Merits, Communication No 1184/2003, UN Doc CCPR/C/86/D/1184/2003, IHRL 1760 (UNHRC 2006) [9.3]).
The Supreme Court of Victoria has compared s 22(1) to s 10(b), the protection from cruel, inhuman or degrading punishment or treatment, as follows:
Section 22(1) is a right enjoyed by persons deprived of their liberty; s 10(b) applies more generally to protect all persons against the worst forms of conduct. Section 10(b) prohibits ‘bad conduct’ towards any person; s 22(1) mandates ‘good conduct’ towards people who are detained (Castles v Secretary to the Department of Justice (2010) 28 VR 141;  VSC 310 ; see also De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647;  VSC 111 ).
For example, the Court in Castles found that access to health care is a fundamental aspect of the right in s 22(1) so that ‘prisoners are entitled to have access to health services available to the wider community without discrimination on the grounds of their legal situation’ (Castles v Secretary to the Department of Justice (2010) 28 VR 141;  VSC 310 , ).
Whether conduct is a breach of s 10(b) or 22(1) will depend on the seriousness of the breach. For example, insufficient access to medical treatment in the case of severely ill HIV positive detainee was found to breach art 3 of the European Convention on Human Rights, which protects against torture and inhuman or degrading treatment or punishment (Salakhov and Islyamova v Ukraine  ECHR 221, Application No. 28005/08). Not all breaches of s 22(1) will amount to ‘cruel, inhuman or degrading’ treatment or punishment, but breaches of s 10(b) are likely to breach s 22(1) if the victim is a detainee (see, eg, UN Human Rights Committee, Views: Communication No 255/1987( Linton v Jamaica), 46th sess, UN Doc CCPR/C/46/D/255/1987, (22 October 1992), cited in Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 2nd ed, 2000) [9.210], see also [9.204]–[9.209]).
In Castles, s 47(1)(f) of the Corrections Act 1986, which provided for the rights of prisoners to have ‘access to reasonable medical care and treatment necessary for the preservation of health’, including treatment by a private practitioner in some circumstances, was found to satisfy the access to health care aspect of the s 22(1) right (Castles v Secretary to the Department of Justice (2010) 28 VR 141;  VSC 310 ).
The Court found that care and treatment under s 47(1)(f) was not limited to life-threatening conditions or serious declines in health. In accordance with the Charter:
[Section] 47(1)(f) must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity. Respecting these rights requires the provision of facilities, goods, services and conditions necessary for the realisation of the standard of health enjoyed by other members of the community (Castles v Secretary to the Department of Justice (2010) 28 VR 141;  VSC 310 ).
On the facts, the Court found that IVF treatment was reasonable and necessary for the preservation of Ms Castles’ reproductive health and fell within the scope of s 47(1)(f) of the Corrections Act 1986, although she was not necessarily entitled to treatment at the clinic of her choice (Castles v Secretary to the Department of Justice (2010) 28 VR 141;  VSC 310 –, , ).
The right in s 22(1) was found not to be engaged by a ‘Smoke Free Policy’ implemented at Thomas Embling Hospital. The plaintiff was an involuntary inpatient at the hospital, who argued that being forced to quit smoking would cause deterioration of his mental state and physical side effects. The Court acknowledged that ‘what may not be inhumane or an affront to the dignity of a person, who is free to return to his home, may be one or both of those things to an involuntary patient’. It also acknowledged the addictive nature of nicotine and the effects of an imposed withdrawal. However, the policy was intended to be for the ultimate benefit of the hospital’s patients and staff, was applied throughout the hospital after careful consideration, and was introduced with supportive treatments made available to patients, and therefore did not limit the right in s 22(1) (De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647;  VSC 111 -).
In Certain Children (No 1), the establishment of a youth justice and remand centre within the environment of a high security adult prison engaged the plaintiff children’s s 22(1) right. Further, in Certain Children (No 2), the authorisation of new categories of weapons – oleoresin capsicum spray and extendable batons – in a place where children are detained engaged s 22(1) (Certain Children (No 2)  VSC 251 ).
Although s 22 is modelled on art 10 of the ICCPR, it does not include an equivalent to art 10(3). Art 10(3) states that ‘the essential aim of [the treatment of prisoners in the penitentiary system] shall be their reformation and social rehabilitation’. Art 10(3) was specifically excluded from the s 22 right in acknowledgment of other possible aims of the prison system and in order to leave room for debate in this regard (Rights, Responsibilities and Respect: The Report of the Victorian Human Rights Consultation Committee, 2006, 43).
Detained persons who are not convicted
Section 22(2) requires non-convicted detainees and convicted detainees to be segregated except where ‘reasonably necessary’. Section 22(3) requires appropriate treatment for detained persons who have not been convicted.
The Court of Appeal has noted that unconvicted persons are not undergoing punishment, and so it is not appropriate that they be detained along with prisoners serving a sentence (DPP v Dale  VSCA 212 , quoting Re Paul Noel Dale  VSC 332, ).
However, s 22(3) does not apply to persons detained in hospital after being found not guilty of an offence by reason of insanity. Such persons have been charged and the charge is causally linked to their detention; they are therefore not protected by s 22(3), which applies to persons who have been accused but not yet tried or who are detained ‘without charge’ (De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647;  VSC 111 -).
The scope of s 22(3) is narrower than the s 22(1) general right attributed to all persons who are deprived of liberty to be treated with humanity and respect. However, it is broader than the right provided by s 22(2). Treatment that is ‘appropriate’ amounts to differential treatment that emphasises a person’s status as an unconvicted person who enjoys the right to be presumed innocent. Depending on the circumstances, such treatment may include permitting an accused to wear their own clothes, make phone calls, eat their own food, or access recreational activities (Certain Children (No 2)  VSC 251 ; Application for Bail by HL  VSC 1 ).
In DPP v J P H (No 2), the Supreme Court considered whether the detention order regime under the Serious Sex Offenders (Detention and Supervision) Act 2009 was consistent with s 22 of the Charter (DPP v J P H (No 2) (2014) 239 A Crim R 543;  VSC 177 –).
The Serious Sex Offenders (Detention and Supervision) Act 2009 provides for the ongoing detention of offenders who have served custodial sentences for certain sexual offences and present an unacceptable risk of harm to the community. Section 115 of the Act states that persons detained under the Act are unconvicted prisoners, who ‘must be treated in a way that is appropriate’ to that status and ‘must not be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving custodial sentences’ (s 115(1)-(2)). Section 115(3) sets out certain exceptions:
(3) An offender may be accommodated or detained in the same area or unit of the prison as persons who are in prison for the purpose of serving custodial sentences—
(a) if it is reasonably necessary for the purposes of rehabilitation, treatment, work, education, general socialisation and other group activities of this kind; or
(b) if it is necessary for the safe custody or welfare of the offender or prisoners or the security or good order of the prison; or
(c) if the offender has elected to be so accommodated or detained.
The Court found that s 115 reflects the principles embodied in s 22(2)-(3) of the Charter, and is protective of these rights. The Court also described s 115(3) as providing for ‘reasonable limitations’ on the s 22(2) (DPP v J P H (No 2) (2014) 239 A Crim R 543;  VSC 177 ).
However, the particular application of these exceptions would need to be analysed for compatibility in the circumstances. The exceptions will be compatible with s 22(2) if they are ‘reasonably necessary’ (see below). Alternatively, if any of the rights in s 22 are limited, those limitations will need to be analysed under the general limitations provision in s 7(2).
Comparison with ICCPR
Under the ICCPR art 10, segregation requires that convicted prisoners occupy separate quarters from non-convicted detainees but arrangements whereby convicted prisoners served food and worked as cleaners in the remand unit are compatible with the right as long as contact between the two classes of prisoner are kept to a minimum necessary for the performance of these tasks (UN Human Rights Committee, Views: Communication No R.7/27 (Pinkney v Canada), UN Doc CCPR/C/14/D/27/1977, (29 October1981) ).
Sections 22(2) and (3) of the Charter are broader than the corresponding parts of art 10 in that they protect persons detained without charge as well as detained accused persons (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum 17).
Article 10 of the ICCPR includes references to segregating ‘juvenile’ offenders from adult offenders (ICCPR, art 10(3)). Neither s 22(2)nor s 23 (children in the criminal process)include this aspect of art 10, because the Consultation Committee considered that while, as a general principle, the segregation of young offenders from convicted adults is a fundamental human right, current Victorian law on the punishment of young people represents best practice in this area(Rights, Responsibilities and Respect: The Report of the Victorian Human Rights Consultation Committee, 2006, 43).
For example, Victoria implements a unique ‘dual track’ system under the Sentencing Act 1991, which allows adults courts to sentence young offenders, aged under 18 - 20 years, to serve custodial sentences in youth detention instead of adult prison (Sentencing Act 1991, s 32). The purpose of the dual track system is to prevent vulnerable young people from entering the adult prison system at an early age, even when they are no longer children under 18 years. The dual track system applies where the court believes the young person has reasonable prospects for rehabilitation, or is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.
In light of this system, another reason the Committee did not recommend the inclusion of the separate juvenile requirements of art 10 of the ICCPR was to avoid the possible unintended consequence of removing young offenders, who were under 18 when they committed crime, to adult prisons once they turned 18 (Rights, Responsibilities and Respect: The Report of the Victorian Human Rights Consultation Committee, 2006, 43).
Section 22(2) contains an internal limitation. Convicted and non-convicted detainees do not have to be segregated if the failure to segregate is ‘reasonably necessary’.
Article 10 of the ICCPR also contains an internal limitation on the right of accused detainees to be segregated from convicted detainees. However, that limit applies only ‘in exceptional circumstances’ rather than when ‘reasonably necessary’.
The meaning of ‘reasonably necessary’ in s 22(2) has not been examined by the courts. However, in the context of another internal limit on a Charter right (s 15(3)), ‘reasonably necessary’ has been compared to a proportionality exercise involving the evaluation of competing interests (Hogan v Hinch (2011) 243 CLR 506;  HCA 4  (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), see also Noone v Operation Smile (Australia) (2012) 35 VR 569;  VSCA 91 – (Nettle JA)).
The relationship between s 22(2) and the general limitations clause in s 7(2) has not been examined by the courts. It is likely that when it is ‘reasonably necessary’ to detain convicted persons and non-convicted persons together, the right in s 22(2) is not limited and s 7(2) does not apply. This appears to be the way the internal limitations in s 15(3) operate (see Magee v Delaney (2012) 39 VR 50;  VSC 407 ).