What the Act says
This right is based on Articles 10(1) and 10(2)(a) of the International Covenant on Civil and Political Rights, which Australia ratified in 1980. Subsection (3) of the Human Rights Act is an expansion of Article 10.
Scope of the right
Section 30 establishes minimum standards for the treatment of people deprived of their liberty, ensuring that their rights are limited only to the extent necessary by the confinement itself, not by additional hardships.
This right complements the right to protection from torture and cruel, inhuman and degrading treatment (section 17). However, section 17 applies whether or not a person is in detention.
When is someone deprived of their liberty?
People are deprived of liberty when they are held in:
- prisons
- psychiatric hospitals
- correctional institutions
- other facilities where people are not free to leave.
Facilities run by private organisations may also fall under the definition of public entities and be subject to this right.
Minimum standards of treatment
Persons deprived of their liberty should be treated with humanity and respect for their inherent dignity.
The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) outline standards for:
- accommodation conditions
- adequate food
- personal hygiene
- clothing and bedding
- exercise
- medical services
- disciplinary procedures.
There are further conditions specifically for women prisoners set out in the Bangkok Rules. For children, see section 33 of the Human Rights Act.
These standards are supported by the Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Australia ratified in 2017. This treaty requires states to establish monitoring mechanisms to ensure detention standards are maintained.
Special protections for accused persons and those detained without charge
This right provides additional protections for people who have not been convicted of an offence, reflecting the presumption of innocence in criminal law. These people must be detained separately from people convicted of offences, except where reasonably necessary. They must also be treated in a way that is appropriate for a person who has not been convicted.
Reasonable limitations
The right to humane treatment when deprived of liberty can be limited, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Section 5A of the The Corrective Services Act 2006 provides that when considering section 30 in relation to shared cell accommodation or separating convicted and non-convicted prisoners, the chief executive and corrective services officer can take into account:
- the security and good management of the corrective services facility; and
- the safe custody and welfare of all prisoners.
Similarly, section 263 of the Youth Justice Act 1992 clarifies that in making decisions about the management of detention centres, the chief executive can take into account:
- the safety and wellbeing of a child on remand and other detainees
- the responsibilities of the chief executive under section 263 of that Act, such as maintaining discipline and good order in the centre, and promoting the social, cultural and educational development of children detained at the centre.
Case examples
Prolonged solitary confinement
The Queensland Supreme Court reviewed a decision by Queensland Corrective Services to extend a prisoner’s solitary confinement for an additional 6 months. The prisoner had already been in solitary confinement for 7 years.
The Court found that the right to humane treatment was limited because the prisoner faced hardship beyond what is inherent in detention. While the aim of separating the prisoner was seen as legitimate due to the prisoner’s risk of violence, Queensland Corrective Services failed to prove that less restrictive alternatives were unavailable, or that the limitation of the prisoner’s rights was reasonable.
(Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273)
Read the full case note.
Right to liberty found to outweigh right to humane treatment when deprived of liberty
The Court was asked to consider whether an older prisoner with serious health and mobility issues should be detained past the end of his sentence in prison or released into accommodation supervised by Queensland Corrective Services. The evidence was that it was unlikely the prisoner’s healthcare and support needs could be met in the supervised accommodation – although it was the prisoner’s preference to be held there rather than prison.
The judge weighed the right to liberty, which would be more limited by continued detention in prison, against the right to humane treatment in detention, which would be more limited by release into what the Judge described as ‘unsafe and inhumane’ conditions in supervised accommodation. Giving significant weight to the prisoner’s own wishes, the judge considered it would be a disproportionate limitation on the right to liberty to continue the prisoner’s detention in prison because his healthcare needs would not be met by Queensland Corrective Services in supervised accommodation, and made a supervision order.
Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252 (16 November 2022)
Rights of children in detention (Victoria)
This case related to the detention of children in a youth justice and remand centre located within a high-security adult prison (Barwon Prison). The court found that the age of the children, their treatment (handcuffing, prolonged isolation and the high security prison environment) and the conditions of the detention unit (which included lack of natural light, education and stimulation) engaged the children’s rights to humane treatment when deprived of liberty.
(Certain Children (No 1) [2016] VSC 796 [169]; contra Certain Children (No 2) [2017] VSC 251 [241], [256] – [258]).
Strip searches and urine testing in prison (Victoria)
A prisoner challenged the lawfulness of the direction that he submit to random alcohol and drug testing and submit to a strip search prior to every random test. The Victorian Court of Appeal concluded that a direction requiring the prisoner to submit to random alcohol and drug tests was not unlawful, as it was reasonable and proportionate to protect the rights to life and the personal safety and security of people in prison by addressing drug use. However, it was held that requiring the prisoner to submit to a mandatory strip search before a random drug and alcohol test was a breach of his right to privacy and right to humane treatment when deprived of liberty as:
- The strip searches were conducted invasively and in a demeaning manner
- No evidence was provided as to alternative methods to a full strip search
- The conclusion that strip searches are necessary to prevent tampering with the sample was not sufficiently explained; and
- No evidence was presented that a strip search prior to a random drug or alcohol test improved the integrity of the urine testing process.
Thompson v Minogue [2021] VSCA 358.
This information is not intended to be a substitute for legal advice.