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The applicant, a prisoner, had been held in the maximum security unit on continuous six month maximum security orders (MSOs) since January 2013. On 17 June 2020, a decision was made to place him on a further MSO. That same day, a decision was made that he not be permitted to contact other prisoners without approval. The prisoner challenged both of those decisions by way of judicial review, and claimed that his human rights had been breached by them. Justice Martin held that both decisions – to issue an MSO and the no association decision – were unlawful because they were incompatible with s 58 Human Rights Act 2019. His Honour’s consideration of those issues provides a framework within which breaches of human rights can be considered, and distils the principles which govern human rights applications.
22 October 2021
On 7 December 2010, the applicant was sentenced to life imprisonment for murder. . In January 2011, he was classified as a maximum security prisoner. In the three years that followed, he was convicted of other offences, including the attempted murder of a corrective services officer. .
In January 2013, a Maximum Security Order (“MSO”) was issued against him on the basis that he posed a “high risk” of “killing or seriously injuring other prisoners or other persons with whom [he] may come into contact”. A new order has been issued approximately every six months since then. .
On 17 June 2020 a further decision was made imposing an MSO for the period from 18 June 2020 to 16 December 2020. On that same date, an Executive Director within the Department of Corrective Services (Ms Newman) made a “No Association Decision” which prevented him from interacting with other prisoners. . (Its effect was described by Justice Martin as placing “him in a cocoon of isolation from all but the slightest interaction with other human beings”. .)
The applicant sought a review of those decisions under the Judicial Review Act 1991 (“JR Act”). .
Additionally, the applicant claimed that the respondent breached a number of his rights under the Human Rights Act 2019. . Namely:
(i) s 30(1): the right to human treatment when deprived of liberty.
(ii) s 29: the right to liberty and security of person.
(iii) s 17(b): the protection from torture and cruel, inhuman or degrading treatment, specifically, the prohibition on a person being treated or punished in a cruel, inhuman or degrading way.
The JR Act Application
The applicant argued several grounds of judicial review relating to both decisions. The applicant only succeeded on one of those grounds. –.
By that successful ground, it was argued that Ms Newman had failed to take into account a relevant consideration, namely, the effect of the No Association Decision, upon the applicant’s human rights. .
Justice Martin agreed. His Honour held that Ms Newman had failed to consider rights which may be affected by the decision, such as those provided for in s 17(b) or s 30 HRA. His Honour also observed that the consideration which was given to the rights identified by Ms Newman (being s 22 HRA) was “superficial at best”. –.
The Human Rights Application
It was agreed between the parties that the respondent was a public entity within the meaning of s 9(1)(b) HRA and that Ms Newman in exercising delegated power was required to comply with s 58(1) HRA. . The parties also agreed that the requirements of the “piggy-back” provision of s 59 HRA were satisfied in relation to both decisions. .
Justice Martin began his consideration of the HRA application by setting out the following framework within which the human rights arguments ought be considered (at ):
”(a) Identification of the decision and the reasons, if any, given for making it.
(b) Identification of any human rights which are relevant to the decision.
(c) Determining whether the applicant has shown that the decision limits those human rights. If that is done, then –
(i) Has the respondent shown that the limits are reasonable: s 13?
(d) Has the respondent made a decision in a way that is not compatible with human rights: s 58(1)(a)?
(e) In making the decision has the respondent failed to give proper consideration to relevant human rights: s 58(1)(b)?
(i) Has the respondent identified the human rights that may be affected by the decision: s 58(5)(a)?
(ii) Has the respondent considered whether the decision would be compatible with human rights: s 58(5)(b)?”
His Honour also articulated a number of principles which governed the application including:
”(a) Section 58(1) HRA imposes two obligations on a public entity ():
(i) not to make a decision in a way that is incompatible with human rights: s 58(1)(a), and
(ii) not to fail to give proper consideration to a relevant human right in making a decision: s 58(1)(b).
”(b) The substantive limb involves a “two stage inquiry”, which looks to ():
(i) whether the relevant act or decision placed a limit on the human right, and
(ii) If there is a limit, whether that limit is justified under the test of proportionality.
(c) The applicant bears the onus of establishing that the decision imposes a limit on human rights. .
(d) The respondent bears the onus of justifying that limit. –.
(e) As for the procedural limb, “the identification of the relevant human rights is an exercise that must be approached in a common sense and practical manner”. –.
Section 17(b) – a person must not be treated or punished in a cruel, inhuman or degrading way
The applicant contended that the circumstances of his solitary confinement were cruel, inhuman or degrading. Although little evidence of the effect of solitary confinement upon him was led, he submitted that it was a “common sense proposition that eight years of continuous solitary confinement will have had an adverse psychological effect on the applicant”. .
His Honour disagreed, noting that if the applicant had wanted to demonstrate the effects of isolation upon him, expert evidence should have been adduced. . His Honour held that in order for s 17(b) to be engaged, the applicant needed to have demonstrated, at a minimum, that the terms of his confinement were of such a nature that they could “manifest in bodily injury or physical or mental suffering”. . The applicant failed to satisfy its onus ().
Section 29 – right to liberty and security of the person
The applicant contended that the failure of the respondent to take steps to identify and apply changes to his treatment regime by which his circumstances could be improved contravened s 29. .
The applicant argued that s 29 was engaged because, notwithstanding that he has had his liberty removed by the conviction and sentence he is serving, he retained a “residual liberty”. .
Justice Martin rejected this argument. His Honour found that the construction urged by the applicant would (unacceptably) require one of two things to occur (at ):
- First, that a person unlawfully detained – through the deprivation of residual liberty – be released from the prison.
- Secondly, that the Court engage in an assessment of various levels of imprisonment and determine which is most appropriate for a particular prisoner. This would place a court in the position of substituting its decision for that of the relevant authority, which is not the role of the court under the HRA.
Accordingly, s 29 was not engaged. .
Section 30 – humane treatment when deprived of liberty
Section 30 HRA, however, was engaged. . By virtue of the applicant’s being held in prolonged solitary confinement, he was subject to “hardship or constraint beyond the hardship or constraint that all prisoners experienced by virtue of being deprived of his liberty”. . His limited human interaction also fell short of what is envisioned by the Mandela Rules (the best practice framework). .
Having demonstrated that his right under s 30 had been limited, it fell to the respondent to satisfy the onus of proving that that limitation was justified, by reference to the factors set out in s 13(2) HRA. . The respondent did not satisfy that onus:
- Ms Newman did not provide any basis for her belief that no alternative was available that could adequately manage the risk. .
- Ms Newman also failed to give proper consideration to the total length of time that the prisoner had been in solitary confinement. The making of these decisions was not just for six months. It was for a further six months. This was of particular importance. .
By not taking those factors into account, Ms Newman had failed to balance the importance of the purpose of the limitation and the importance of preserving the human right. .
Were the decisions unlawful in the s 58 sense?
For the reasons given with respect to the application of s 30 HRA, the respondent’s decision to issue an MSO was incompatible with human rights and, it followed, unlawful. .
In respect of the No Association Decision, the procedural limb of s 58 was not satisfied. . Section 58 requires that rights must be identified if they “may” be affected by the decision. This was not done. . The No Association Decision was also unlawful. .
Z Brereton of Counsel