The Rights of Prisoners Under the Victorian Charter: A Critical Analysis of the Jurisprudence on the Treatment of Prisoners and Conditions of Detention

Abstract

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) protects a range of civil and political rights, and imposes obligations in relation to rights-compatible interpretation of statutory provisions and public decision-making compatible with rights. The interpretation and public decision-making obligations are novel enforcement mechanisms for the protected rights within the Victorian legal system. Despite the opportunity presented by the rights and enforcement mechanisms, there has been a distinct lack of Charter-based jurisprudence. This article explores the impact (or otherwise) of the Charter on jurisprudence in Victoria through a case study on the rights of prisoners. Focusing on cases where the conditions of detention or the treatment of prisoners have generated Charter jurisprudence, the article will consider cases concerning: (a) the s 47(1) rights under the Corrections Act 1986 (Vic); (b) the place of detention; and (c) the conditions of detention and sentencing. The jurisprudence is more properly described as “Charter-inspired” rather than “Charter-based”, with the examined decisions occurring in the shadow of the Charter rather than directly under the Charter. Strategies aimed at increasing reliance on the Charter in litigation will be explored, particularly clarifying the remedial nature of s 7(2) limitations/proportionality analysis and s 32(1) rights-consistent interpretation post the Momcilovic litigation. The ultimate goals are to reinvigorate interest in the Charter, and improve the conditions of detention and treatment of detainees in prisons.

Keywords: Victorian Charter, prisoner's rights, human rights jurisprudence, rights consistent interpretation, proportionality analysis

JEL Classification: K10, K14, K33, K39