6.16.3. Reasonable and justified limits under s 7(2)

1. In Certain Children v Minister for Families and Children & Ors (No 2), John Dixon J said that the main qualification on s 22(1) would ‘be the necessity to ensure safe custody, the secure operation of the facility and a well-ordered community life within that facility’ (Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 [248] (‘Certain Children (No 2)’).
2. In Thompson v Minogue, the Court of Appeal upheld the finding that directions that prisoners undergo strip searches associated with random urine tests were incompatible with their right to dignity. The strip searches were found to be "extremely invasive and demeaning" and severely limited prisoners’ dignity right. The evidence left open the possibility that there were less restrictive means reasonably available to achieve the purpose sought. The limitation was not proportionate to the purpose of ensuring prison security and the safe custody and welfare of prisoners (Thompson v Minogue [2021] VSCA 358, [350]-[360]).
3. Conversely, the Court held that a ‘Urinalysis Procedure’ which required prisoners to undergo random urine tests did interfere with the dignity right, but that the interference was justified under s 7(2). The deterrent effect of random urine tests on drug use within the prison was highly relevant to an assessment of the efficacy and appropriateness of the Procedure. The Procedure was authorised by the Corrections Act, s 29A, and was therefore ‘under law’ for the purpose of s 7(2). The infrequency of random selection appropriately balanced the need for deterrence with the need for workability within the prison environment. The limitation was proportionate to the purpose of ensuring prison security and the safe custody and welfare of prisoners. (Thompson v Minogue [2021] VSCA 358, [270]-[277]).
4. Victorian courts have expressed concern on several occasions that certain conditions of detention may fall short of the standard required by s 22. For example, in Dale, an accused was held in solitary confinement and apparently subject to conditions including ‘strip searches, leg irons when out of the unit, and a requirement of avoiding eye contact with other prisoners’. The Court of Appeal noted that the relevant conditions may have been necessary to contain a very dangerous, violent, convicted prisoner but the appellant had not been convicted, nor was there any suggestion that he was dangerous or violent. The Court found the conditions to be unrelated to the accused’s protection and agreed that they might raise questions under s 22(1), although it declined to express a view on the matter (DPP v Dale [2009] VSCA 212 [35]–[39]).
5. In Tiba, the County Court set out the following ‘extremely onerous’ conditions of detention of a person who had yet not been convicted, stating that they gave rise to a real question of compliance with s 22:

   Whilst housed in those units you are confined to your cell alone for 22 hours each day. You have access to a television, but no other facilities in the cell other than a shower and a toilet. You are permitted one contact visit per month, and two non-contact visits per week. Each day you are allowed to spend one hour outside your cell in a yard. However, you are alone at this time. Food is delivered to you through a trapdoor in your cell door, and you have no cooking facilities of your own. Because of the conditions of your incarceration, you are not permitted to undertake work or any courses of study. For that reason your prison income is limited to $5 per week, which is insufficient to purchase a newspaper each day. Library facilities are not provided to you (DPP v Tiba [2013] VCC 1075 [30]).

6. In both Dale and Tiba, the court acknowledged that harsh conditions of detention, particularly solitary confinement, can cause significant psychological harm (DPP v Dale [2009] VSCA 212 [35]; DPP v Tiba [2013] VCC 1075 [31]). In sentencing remarks in which the conditions of detention were taken into account as a factor in the length of the sentence, the Supreme Court has stated, in relation to s 22(1):

   To place people in a custodial environment which is able to be foreseen as likely to result in their suffering a major psychiatric illness can hardly be said to be treating them with humanity. This is particularly so if, as here, no cogent grounds have ever been put forward as justifying such conditions for these prisoners (R v Kent [2009] VSC 375 [32]).

7. Certain Children (No 2) the Court found that limits placed on s 22(1) in a youth justice environment were not demonstrably justified. The young people’s rights were significantly affected and limited by the decision to establish a youth justice centre within an adult correctional facility, and the subsequent decisions to move children there. The main limitations included the unit’s placement within a maximum security adult jail, the extensive lockdown periods in cells designed for adult men, the use of handcuffs when children were released from their cells, the presence of adult prison security staff, and the children’s uncertainty about the kind of treatment they would receive. These limitations were unjustifiable because, among other reasons, the affected rights protected important values; the purpose of the limitations was essentially managerial; and other, less restrictive, ways of achieving the stated purposes were available (Certain Children (No 2) [2017] VSC 251 [450], [454]-[476]).
8. At the international level, the use of solitary confinement has been found in a number of cases to be incompatible with the right in art 10(1) of the ICCPR, on which s 22(1) is based, particularly when employed for periods longer than a few days or without urgent need (see Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 2nd ed, 2000) [9.218]-[9.220], citing UN Human Rights Committee, Views: Communication No 917/2000 (Arutyunyan v Uzbekistan), UN Doc CCPR/C/80/D/917/2000, (13 May 2004) and UN Human Rights Committee, Views: Communication No 147/1983 (Arzuada Gilboa v Uruguay), UN Doc CCPR/C/26/D/147/1983; see also Vogel v Attorney General [2013] NZCA 545).
9. As discussed in 5.3.4 – Requirements, whether a right is absolute or non-derogable at international law may be relevant to limitations analysis. At international law, the art 10 right to be treated humanely and with respect for human dignity while deprived of liberty is not one of the non-derogable rights listed in art 4 of the ICCPR. However, the Human Rights Committee has suggested that art 10 constitutes a non-derogable norm of international law, given the importance the ICCPR places on recognising the inherent dignity of the person, and the close relationship between the non-derogable art 7 prohibition on torture and art 10 (Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (OUP, 3rd ed, 2013) [9.193], [26.64]-[26.69]).

Last updated: 25 March 2022