Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 | Case summary | Zoe

ACTACTSC

Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83

[2022] ACTSC 83

Supreme Court of the ACT|2021-06-17|Before: Loukas-Karlsson J

View on the ACT Courts

At a glance

Source facts

Court

Supreme Court of the ACT

Decision date

2021-06-17

Before

Loukas-Karlsson J

Catchwords

HUMAN RIGHTS – prison facilities – separate confinement
– access to open air and exercise when in separate confinement –
Human Rights Act 2004 (ACT) – right to humane treatment while
deprived of liberty – right to protection from cruel, inhuman or degrading

Source

Original judgment source is linked above.

Catchwords

HUMAN RIGHTS – prison facilities – separate confinement– access to open air and exercise when in separate confinement –Human Rights Act 2004 (ACT) – right to humane treatment whiledeprived of liberty – right to protection from cruel, inhuman or degradingtreatment– right to protection from arbitrary detention – s 45Corrections Management Act 2007 (ACT) – Mandela Rules

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Authorised report: (2022) 18 ACTLR 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Davidson v Director-General, Justice and Community Safety Directorate

Citation: [2022] ACTSC 83

Hearing Dates: 5 May 2021, 6 May 2021 and 3 June 2021

Decision Date: 17 June 2021

Reasons Date: 21 April 2022

Before: Loukas-Karlsson J

Decision: See [439]

Catchwords: HUMAN RIGHTS – prison facilities – separate confinement – access to open air and exercise when in separate confinement – Human Rights Act 2004 (ACT) – right to humane treatment while deprived of liberty – right to protection from cruel, inhuman or degrading treatment – right to protection from arbitrary detention – s 45 Corrections Management Act 2007 (ACT) – Mandela Rules

Legislation Cited: Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 22, 32, 38, 39 Corrections (Management of Segregation and Separate Confinement) Policy 2020 (ACT) (NI2020-791) Corrections Management (Management of Segregation and Separate Confinement) Policy 2019 (ACT) (NI2019-381) Corrections Management (Management Unit) Policy 2011 (NI2011-48) Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) (NI2019-384) cl 4.3 Corrections Management Act 2007 (ACT) pt 9.2, ch 10, ss 7, 8, 9, 12, 14, 45, 57, 152, 154, 183, 184, 188 Court Procedures Rules 2006 (ACT) r 1509 Crimes (Sentencing) Act 2005 (ACT) s 63 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, opened for signature 26 November 1987, ETS 126 (entered into force 1 February 1989) European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) arts 3, 8 Evidence Act 2011 (ACT) ss 4, 63, 136, 191 Human Rights Act 2004 (ACT) sch 1, ss 7, 8, 9, 10, 12, 18, 19, 24, 28, 30, 31, 32, 36, 40, 40A, 40B, 40C Human Rights Act 2019 (Qld) s 58 Human Rights Amendment Act 2008 (ACT) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 7, 9, 10 Legislation Act 2001 (ACT) ss 132, 139, 140 Official Visitor Act 2012 (ACT)

Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111 Ananyev and Others v Russia (European Court of Human Rights, Application Nos. 42525/07 and 60800/08, 10 January 2012) Andrews v Thomson [2018] ACTCA 53; 340 FLR 439 Application for Bail by HL (No 2) [2017] VSC 1 Australian Leisure and Hospitality Group v Director of Liquor Licensing [2012] WASC 463 Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 Baker v Director of Public Prosecutions (Vic) [2017] VSCA 58; 270 A Crim R 318 Baker v The Queen [2004] HCA 45; 223 CLR 513 Bare v IBAC [2015] VSCA 197; 326 ALR 198 Callanan v Attendee Z [2013] QSC 342; [2014] 2 Qd R 11 Castles v Secretary, Department of Justice [2010] VSC 310; 28 VR 141 Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 Certain Children v Minister for Families and Children [2016] VSC 796; 51 VR 473 CNK v The Queen [2011] VSCA 228; 32 VR 641 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111; 48 VR 647 Director of Public Prosecutions (ACT) v Close [2015] ACTSC 10; 293 FLR 133 Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23; 13 ACTLR 280 Director of Public Prosecutions (ACT) v Nikro [2017] ACTSC 15; 265 A Crim R 158 Director of Public Prosecutions (Vic) v Faure [2005] VSCA 91; 12 VR 115 Director of Public Prosecutions v Ali (No 2) [2010] VSC 503 Director of Public Prosecutions v Kaba [2014] VSC 52; 44 VR 526 Director of Public Prosecutions v Leys [2012] VSCA 304; 44 VR 1 Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33 Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 Geddes v The Queen [2012] NSWCCA 94 Haigh v Ryan [2018] VSC 474 Hakimi v Legal Aid Commission [2009] ACTSC 48; 3 ACTLR 127 Hoare v The Queen (1989) 167 CLR 348 Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 Islam v Director-General, Justice and Community Safety Directorate (No 3) [2016] ACTSC 27 Kalashnikov v Russia [2002] ECHR 596; 36 EHRR 34 KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 Kracke v Mental Health Review Board [2009] VCAT 646; 29 VAR 1 Kudla v Poland (2002) 35 EHRR 11 Manga v Attorney-General [2000] 2 NZLR 65 Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70 Minogue v Dougherty [2017] VSC 724 Minogue v Thompson [2021] VSC 56 Moiseyev v Russia (European Court of Human Rights, Application No 62936/00, 9 October 2008) Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 Monaghan v ACT (No 2) [2016] ACTSC 352; 315 FLR 305 Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 Muršić v Croatia (European Court of Human Rights, Application No 62936/00, 6 April 2009) Neilsen v Attorney-General [2001] 3 NZLR 433 Nicolae Virgiliu Tănase v Romania [2019] ECHR 491 Nigro v Secretary to the Department of Justice [2013] VSCA 213; 41 VR 359 Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc [2012] VSCA 91; 38 VR 569 Olsson v Sweden (No 1) (European Court of Human Rights, Application No 10465/83, 24 March 1988) Owen v Crown House Engineering Ltd [1973] 3 All ER 618 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 PJB v Melbourne Health (Patrick’s Case) [2011] VSC 327; 39 VR 373 Poltoratskiy v Ukraine (European Court of Human Rights, Application No 38812/97, 29 April 2003) Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 R (Gillan) v Commissioner of Police for the Metropolis [2006] 2 WLR 537 R (Limbuela) v Home Security [2006] 1 AC 396 R v Binse [2014] VSC 253 R v Davidson [2018] ACTSC 227 R v Forsyth [2013] ACTSC 179; 281 FLR 62 R v Oakes [1986] 1 SCR 103 R v QX (No 2) [2021] ACTSC 244 R v Smith (Edward Dewey) [1987] 1 SCR 1045 Re Application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 Re Application under Major Crimes (Investigative Powers) Act 2004 [2009] VSC 381; 24 VR 415 Slaveski v Smith [2012] VSCA 25; 34 VR 206 Sleiman v Commissioner of Corrective Services [2009] NSWSC 304 Taunoa v Attorney-General (2004) 7 HRNZ 379 Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 Tognolini v The Queen [2012] VSCA 311 Victoria Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 Wainwright v United Kingdom (2007) EHRR 40 WBM v Chief Commissioner of Police [2012] VSCA 159; 43 VR 446 Whelan v Governor of Mountjoy Prison [2015] IEHC 273 Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 Texts Cited: Andrew Coyle and Helen Fair, A Human Rights Approach to Prison Management: Handbook for Prison Staff (International rd Centre for Prison Studies, 3 ed, 2018) Council of Europe, Report to the Swedish Government on the visit to Sweden carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 15 to 25 February 1998, CPT/Inf (2009) 34 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Second General Report [CPT/Inf (92) 3] Explanatory Statement, Corrections Management Bill 2006 (ACT) Explanatory Statement, Human Rights Amendment Act 2008 (ACT) Explanatory Statement, Human Rights Amendment Bill 2007 (ACT) Mirko Bagaric, Richard Edney and Theo Alexander, ‘(Particularly) Burdensome Prison Time Should Reduce Imprisonment Length – and Not Merely in Theory’ (2014) 38 Melbourne University Law Review 409 Sharon Shalev, A Sourcebook on Solitary Confinement (Mannheim Centre for Criminology, London School of Economics, 2008) Standard Guidelines for Corrections in Australia (revised 2012) United Nations Human Rights Committee, General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or th Degrading Treatment or Punishment), 40 sess, HRC (10 March 1992) United Nations Human Rights Committee, General Comment No 35: Article 9 (Liberty and Security of Person), HRC (16 December 2014) United Nations Office for Project Services, Technical Guidance for Prison Planning: Technical and Operational Considerations Based on the Nelson Mandela Rules (2016) United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)

The plaintiff prepared an affidavit affirmed on 15 September 2020 (the plaintiff’s first affidavit) which was tendered in the proceedings. In the plaintiff’s first affidavit, the plaintiff deposed that he has a longstanding diagnosis of bipolar disorder. The plaintiff stated that during his time in the AMC, he had been ordered to spend time in the Management Unit for disciplinary reasons.
In the plaintiff’s first affidavit, the plaintiff stated that the rear courtyard essentially formed part of the cell. The plaintiff noted that the rear courtyard provides an area for detainees in the Management Unit to smoke. Second Affidavit
The plaintiff prepared a second affidavit affirmed on 7 April 2021 (the plaintiff’s second affidavit). In the plaintiff’s second affidavit, the plaintiff confirmed that he spent a total of 63 days in the Management Unit.
The plaintiff’s second affidavit responds to affidavits in the proceeding relied on by the defendant that describe the “hard side” of the Management Unit. The plaintiff confirmed that he was a detainee that fell within the description of a person detained within the “hard side” of the Management Unit. The plaintiff deposed that he was never given access to the general exercise yard for the “hard side” during the confinement period.
The plaintiff stated that being in the rear courtyard made him feel that he was still in his cell because of the surrounding four concrete walls and its small size. The plaintiff deposed that there was no air circulation or breeze in the rear courtyard. The plaintiff stated that there was no direct sun and that if sunlight does come through, it is darkened by the mesh roof. The plaintiff opined that the rear courtyard did not give him adequate space to exercise, as he was unable to run or jog inside the space and was not provided with any exercise equipment during his time in the Management Unit.
In the plaintiff’s second affidavit, the plaintiff stated that in order to seek access to the rear courtyard from his Management Unit cell, he used an intercom to buzz the correctional officer’s station. If the plaintiff’s request was granted for time out in the rear courtyard, the correctional officer would remotely open the rear cell door. The plaintiff’s request was either granted or denied. To the plaintiff’s observation, there was no time nor routine as to when a correctional officer would remotely unlock the door to the rear courtyard. The plaintiff had to ask permission for the door to the rear courtyard to be opened.
The plaintiff deposed that on some days during the confinement period, he was not granted access to the rear courtyard at all and remained in his cell for 24 hours. The plaintiff stated that he never refused to go into the rear courtyard.
The plaintiff again referenced that he has a longstanding diagnosis of bipolar disorder and stated that he informed the defendant of this diagnosis when he was first imprisoned in the AMC. The plaintiff noted that one of his general coping techniques for his mental condition is regular, strenuous exercise.
In the plaintiff’s second affidavit, the plaintiff stated that being in a Management Unit cell for 24 hours a day severely impacted his mental and physical health. The plaintiff stated that he was made to feel anxious and depressed in his time in the Management Unit.
On 5 January 2019, the plaintiff completed a “prisoner’s complaint form” and complained about being in a cell for 24 hours per day. The plaintiff deposed that the next day, a custodial officer responded to his complaint and said words to the effect of “the current Management Unit regime provides for access to fresh air and sunlight in yard at the rear of cell for min 1 hour each day”. As the complaint was not resolved, the complaint was escalated to an officer at CO3 level. The plaintiff stated that the CO3 level officer wrote that the “Management Unit is not as comfortable as other housing units but is still compliant with human rights legislation”. A copy of the plaintiff’s complaint form was exhibited to the plaintiff’s second affidavit.
The plaintiff was then moved back to regular housing in the AMC because of his mental health concerns. Thereafter, the plaintiff was again put in segregation and separate confinement in March 2019. The plaintiff stated that being confined for 24 hours a day made him feel depressed.
On 14 March 2019, the plaintiff again complained to the AMC about the lack of open air and exercise and the impact it was having on his mental health.
On 20 March 2019, the plaintiff contemplated hurting and killing himself. In the plaintiff’s second affidavit, the plaintiff detailed an attempt to suicide via hanging. The plaintiff ceased the attempt and contacted corrections’ staff requesting immediate mental health assistance.
On 22 March 2019, the plaintiff forwarded his complaints about the lack of open air and exercise to the Ombudsman. Copies of the complaints made in March 2019 were exhibited to the plaintiff’s second affidavit.
The plaintiff stated that based on his observations, the Management Unit general exercise yard was the same as the general exercise yards in Sentence Unit 1 and 2 and Remand Unit 1 and 2 at the AMC. The plaintiff however noted that the general exercise yards in the sentence and remand units have more exercise equipment.

The plaintiff gave oral evidence at the hearing. The plaintiff confirmed that when he was first remanded in custody at the AMC, he was placed in Sentenced Unit 1 as an unplaced prisoner for his first year in custody. The plaintiff stated that he would utilise the exercise equipment that was available in the exercise yard annexed to Sentenced Unit 1. This equipment included a general exercise machine that allows a user to perform various exercises including leg press, bench press, and arm curls.
The plaintiff gave evidence that he was integrated with the remainder of the general prison population and there were 38 detainees in Sentenced Unit 1. The plaintiff noted that it became a “pretty hostile and violent yard”. The plaintiff confirmed that he had assaulted several people during his time in custody at the AMC and that he had been involved in “physical contests”. The plaintiff stated that certain detainees were at risk by being assaulted by him.
When asked in examination-in-chief why he had been placed in the Management Unit, the plaintiff confirmed that the first occasion was on account of him lighting a fire in his cell. The plaintiff gave evidence that the remaining times he was placed in the Management Unit was due to him participating in fighting. The plaintiff stated he had never threatened a Corrections Officer, nor had he been violent to AMC staff. The plaintiff gave evidence that he is not a smoker and that he never smoked during his time in the AMC.
The plaintiff was asked about the process of being moved to the Management Unit from the general accommodation. The plaintiff gave evidence that AMC staff would arrive at his cell in general accommodation, direct him to put his hands through the hatch or direct him to stand at the back of the cell and place his hands behind his head. Thereafter, he would be restrained and escorted to the Management Unit. Once inside a Management Unit cell, the plaintiff stated that the AMC staff then proceed to remove the handcuffs, perform a strip search and then close the door.
The plaintiff stated that initially, the process of seeking access to the rear courtyard was not explained to him. The plaintiff recalled AMC staff saying there was no smoking in the cell and that if detainees wanted to smoke, they would have to do so out the back of the cell. The plaintiff stated he remembered predominantly asking to access the general exercise yard and then over time, he learnt to “buzz up” and request access to the rear courtyard. The plaintiff gave evidence that “buzz up” referred to utilising the intercom panel in the cell to contact the AMC staff that are responsible for the Management Unit.
The plaintiff gave evidence that to get access to the rear courtyard, he learnt that he had to “buzz” and “then pretty much beg for [AMC staff] to open the back door”. The plaintiff stated that there were occasions where he was refused access to the rear courtyard because he “didn’t ask politely”. The plaintiff gave evidence that AMC staff denied his request for access to the rear courtyard on several occasions and that he was not provided with a reason for a denial. The plaintiff further stated that he had been told on occasion “maybe later” or “I’m busy” by AMC staff. The plaintiff stated that he was granted access to the rear courtyard on other occasions.
The plaintiff noted that it was hard to determine the proportion of times he was told “yes”, “no”, “maybe later” by AMC staff. The plaintiff also stated that there were days he was in the Management Unit where he did not ask to be granted access to the rear courtyard. The plaintiff noted that there were occasions that he did not want to ask in light of been refused access at time and feeling defeated. The plaintiff stated he felt it was a sign of weakness to ask.
The plaintiff stated that his impression of the “hard side” of the Management Unit was that AMC staff intentionally made his time in the Management Unit hard on him. The plaintiff stated that the “hard side” was designed to be hard on the detainee. The plaintiff described it as “physically hard and mentally hard”.
When asked about the occasions he was granted access to the rear courtyard, the plaintiff confirmed that the door is manual and he physically had to push it open after it was unlocked electronically. The plaintiff was asked how long he would stay in the rear courtyard when it was accessible and he responded that the “general understanding” was for access for one hour. The plaintiff noted that it could be more than one hour or could be less than one hour depending on what was occurring in the AMC.
The plaintiff stated that during the day if the door to the rear courtyard had been opened in the morning, detainees would be directed to close the door to facilitate the lunch lock-in or any security response that the Management Unit staff needed to attend to. When asked what the process would be if he wanted to have further access into the rear courtyard after being directed to close the door for lunch lock-in, the plaintiff gave evidence that he would have to use the intercom to “buzz up” and request access again. The plaintiff stated that on some occasions he would be granted further access and on others, he was told, “you’ve already had your hour” or “maybe later”.
The plaintiff gave evidence that the intercom was able to be turned off by Management Unit staff and stated that he experienced the intercom being turned off on multiple occasions. The plaintiff stated that when the intercom was switched off, he was unable to contact the Management Unit staff and his only option of communicating with staff was to kick the cell door or yell. The plaintiff stated he presumed Management Unit staff would turn off an intercom if he was bothering them.
The plaintiff was asked about his bipolar affective disorder. The plaintiff gave evidence that the symptoms he experiences includes periods of heightened activity, which are then followed by long periods of severe depression. In a period of heightened activity, the plaintiff described being in a manic phase, getting less sleep with heightened senses and extreme beliefs. The plaintiff stated that when he was first remanded in AMC, he experienced periods of being low, where he had little energy and felt negative and unmotivated.
The plaintiff confirmed that he was treating the depression when he was first remanded in the AMC with an antidepressant. The plaintiff stated that he also found that exercise and a healthy lifestyle help to manage his symptoms. Before being remanded in the AMC, the plaintiff exercised every day, as much as he could. When in Sentenced Unit 1, the plaintiff would attempt to perform weight exercises for at least two hours each morning and then would remain active throughout the day, such as by jogging or walking. The plaintiff stated that when he could not do two hours of weights and walking, he would feel like “shit” as he relied upon exercise significantly as a coping technique.
The plaintiff stated that while he was in the Management Unit, he felt that he was at the lowest point of his entire life. The plaintiff gave evidence about an attempted suicide that occurred while he was in the Management Unit and noted it was due to being aware he was spending a long time in the AMC and the way he was going, he was likely to spend a large proportion of this time in the Management Unit.
The plaintiff was referred to the list which contained particulars of when he was in the Management Unit, including the duration of time he spent and the reason he was in there. In reference to the occasion where the plaintiff spent 28 days in the Management Unit, the plaintiff said it made him feel like he was never getting out and that he was going to be in the cell forever.
The plaintiff confirmed he did not take issue with being placed in the Management Unit and accepted that if he misbehaved in the AMC, there were to be consequences for that conduct. The plaintiff stated that his issue was with the treatment that came with being in the Management Unit. The plaintiff stated he wanted to utilise the general exercise yard and that he was not permitted to do so.
When asked why the plaintiff wanted access to the general exercise yard, the plaintiff stated that the general exercise yard was open to air, provided adequate space for him to exercise and equipment for him to train with. Of the rear courtyard, the plaintiff stated, “I suppose I’ve always seen the rear courtyard as part of the cell”. The plaintiff stated that he did not see the rear courtyard as encapsulating time out of his cell. The plaintiff gave evidence that he felt the general exercise yard provided open air because he would be able to see the surrounding landscape, as well as be able to feel the sun and wind on his skin. In respect of adequate space, the plaintiff noted that if he were to lie down in the rear courtyard, he would be “touching end to end” which was inadequate.
The plaintiff was shown photographs of the general exercise yard and confirmed that he had never been in that area of the Management Unit. The plaintiff noted that he was able to see the general exercise yard from when he was using the telephone in the Management Unit.
In cross-examination the plaintiff confirmed that there were occasions that he was denied further access to the rear courtyard in circumstances where he had already accessed the rear courtyard for one hour that day. The plaintiff further confirmed there were occasions where he was denied access in circumstances where he had not been granted access to the rear courtyard at all on the relevant day. The plaintiff was asked about occasions where he initially requested access and was denied, and whether the plaintiff would subsequently request access to the rear courtyard at a later time that day. The plaintiff gave evidence that he generally would not ask again because he was too ashamed and did not want to utilise the intercom to “beg”.
The plaintiff was taken to an exhibit of the plaintiff’s second affidavit, the prisoner complaint form. It was put to the plaintiff that the form did not contain a complaint as to denial of access to the rear courtyard. The plaintiff stated that the denial of access was “to be implied” from his complaint that he was “locked down 24 hours a day”. The plaintiff accepted that the complaint form did not explicitly contain a complaint that the plaintiff had ever been denied access to the rear courtyard.
The plaintiff was taken to a further exhibit of his second affidavit, a handwritten note addressed to the Ombudsman. The plaintiff accepted that the note to the Ombudsman did not contain a complaint as to the denial of access to the rear courtyard. The plaintiff accepted that the note only contained a complaint of being denied access to open air and exercise.
The plaintiff was referred to his evidence given in evidence-in-chief that the Management Unit staff had the capacity to turn a detainee’s intercom off and that as a result, there were occasions where the plaintiff was unable to contact staff. The plaintiff confirmed his evidence that when this arose, he would have to “kick the door” or yell to get the attention of the staff. The plaintiff was then referred to an exhibit of his second affidavit which set out the Detainee Observations Forms of the plaintiff for the confinement period he spent in the Management Unit. The plaintiff accepted that there were hourly observations of himself while he was in his designated Management Unit cell. The plaintiff however stated that the staff would merely come past and give “a cursory look” when conducting observations. It was put to the plaintiff that he could have requested access to the rear courtyard when the Management Unit staff were conducting hourly observations. The plaintiff responded that he “suppose[d] I could have begged and asked. Yes”.
In re-examination, the plaintiff stated that his note to the Ombudsman and other complaints did not reference denial of access to the rear courtyard because his main complaint has always been that he did not consider the rear courtyard as an area that provided open air and exercise.

Mr Rust highlighted that separate confinement is the separation of a detainee from their regular accommodation as an administrative penalty for a disciplinary breach under ch 10 of the Corrections Management Act. Mr Rust’s affidavit also describes the procedure for placing someone into the Management Unit, which need not be explicated in detail here.
Mr Rust noted that the Management Unit was constructed as part of the original building plans for the AMC and opened on 11 September 2008. The Management Unit has accommodated detainees who are under segregation and separate confinement since its opening and at any one time, can accommodate up to 14 detainees. Mr Rust stated that the Management Unit is staffed by two Corrections Officers and attended by the Duty Manager on a daily basis.
Mr Rust confirmed that the Management Unit has 14 cells of identical dimensions. Each cell can house one detainee. The rear courtyard for each cell is identical in size and dimension and a rear courtyard itself is of a similar size and dimension to the cell. The door to the rear courtyard can be locked and unlocked electronically by staff but is only able to be physically opened and closed by the detainee. Exhibited to Mr Rust’s affidavit were photographs of a rear courtyard of a “hard side” cell taken in or about October 2020. Mr Rust confirmed that the photographs depict the same state of the rear courtyard as would have been experienced by the plaintiff between October 2018 and September 2019. The photographs of a rear courtyard and “hard side” cell are annexed to this judgment marked “Annexure A”.
Mr Rust’s affidavit also contains a description of the general exercise yards which are attached to the Management Unit building complex on either side of the building. Mr Rust stated that within the general exercise yard, there are two metal exercise “bars” which allow detainees to perform body weight exercises. Mr Rust’s affidavit also exhibited photographs of a general exercise yard taken in or about October 2020. The photographs of the general exercise yard are annexed to this judgment marked “Annexure B”.
Mr Rust noted that the access doors to the general exercise yards do not have hatches for detainees to insert their hands through. Mr Rust stated that this made it impossible for AMC staff to implement the Management Unit’s handcuffing procedure pursuant to item 4.13 of the 2019 Operating Procedure.
Mr Rust’s affidavit also included a description of the “hard side” and the “soft side” of the Management Unit. Mr Rust confirmed that the determination to place a detainee on either side of the Management Unit is dependent on whether the detainee is under segregation or separate confinement and, if they are under segregation, the type of segregation order that has been made. Mr Rust further noted that the “hard side” is for detainees who are being accommodated in the Management Unit for the following reasons:

Mr Rust noted that it is the Management Unit’s policy that hard side detainees generally do not have access to the general exercise yard, in light of the access to the rear courtyard. However, Mr Rust further stated that a “hard side” detainee might “from time to time” be granted access to the general exercise yard if a Corrections Officer in the Management Unit had conducted a review and decided that it was safe and appropriate to allow the detainee access. The detainee would be required to be kept in handcuffs and supervised by two Corrections Officers during any time spent in the general access period in light of safety and security risks. Mr Rust then however noted that due to there only ever being two staff supervising the Management Unit at any one time, it is not possible for those staff to provide supervised access for a “hard side” detainee in the general exercise yard.
Mr Rust noted that when a detainee is placed on separate confinement for a disciplinary breach, the period of time for which they remain in separate confinement can be either three, seven, or 28 days, which is dependent on the severity of the breach. Mr Rust had authority as the Senior Director of Operations to conduct a review after a detainee had completed their period of separate confinement to determine whether the detainee could be returned to the general prison population or whether it was necessary for them to be placed under segregation for a period of time. If a safety and security direction for segregation was made, a detainee may then be required to remain on the “hard side” of the Management Unit until the period of segregation was completed.
In respect of the rear courtyard, Mr Rust confirmed that its purpose is for detainees to have access to outdoor air, light, a space to do solitary exercise, and to smoke cigarettes. Mr Rust noted that the door between each cell and rear courtyard is able to be locked and unlocked electronically by staff. Mr Rust stated that detainees are informed that they can request that the door be unlocked for access to the rear courtyard at any time after the morning muster until the evening lock-in. Once the door to the rear courtyard is opened, a detainee can physically close it at any time between morning muster and 6:00PM. Mr Rust further noted that if a detainee chooses to leave the door open during that time, it will remain open and unlocked until the evening lock-in. Mr Rust confirmed that all detainees on the “hard side”, whether they are under separate confinement or segregation, have the same level of access to the rear courtyard. Mr Rust recalled being informed by staff in 2018 and 2019 that detainees often asked for the door to the rear courtyard to be unlocked after morning muster and then chose to leave it unlocked all day, so that they could access the rear courtyard whenever they liked until evening lock-in.
Mr Rust noted that Management Unit staff conduct “rounds” of the area every hour. During rounds, the staff enquire with detainees and offer them access to their statutory entitlements. Such entitlements include making a phone call, requesting to be seen by a case manager or liaison officer, or requesting access to the rear courtyard. Mr Rust stated that detainees also have an intercom buzzer located within their cell, which can be used to communicate with the Management Unit staff.
Mr Rust confirmed that pursuant to the Corrections Management (Management of Segregation and Separate Confinement) Policy 2019 (ACT) (NI2019-381), detainees receive a copy of the document titled “Segregation/ Separate Confinement Rule and Regime for the Management Unit” at the commencement of their period of segregation or separate confinement in the Management Unit, a copy of which was exhibited to Mr Rust’s affidavit.
In respect of the general exercise yards, Mr Rust stated that in their current state, the general exercise yards pose a security and/ or safety risk to detainees and AMC staff. Hence, it is the policy of the Management Unit that detainees on the hard side generally do not have access to the general exercise yards. As the doors to the general exercise yards do not contain hatches to handcuff detainees prior to their exit from the yard, Mr Rust noted there is a safety risk to AMC staff in attempting to reapply the handcuffs before transporting a detainee back to their cell. Due to the absence of the hatches, AMC staff would be required to enter the general exercise yard in order to restrain the detainee. If the detainee was non-compliant, it would pose a safety risk to the AMC staff member’s safety to attempt to apply the handcuffs.
Mr Rust further noted that the mesh used for the walls of the general exercise yards is thick and widely spaced enough to allow a detainee to climb the mesh wall to the top of the enclosed space. Mr Rust stated that such an action presents a serious risk to safety and security for the following reasons:

Mr Rust also highlighted that the two exercise bars that are contained within the general exercise yard also present possible ligature points for a detainee to attempt self-harm. Mr Rust noted that in light of the safety and security risks, “hard side” detainees generally do not get access to the general exercise yards and are instead provided with access to their rear courtyard for outdoor air, light, and space for exercise.
Mr Rust’s review of the plaintiff’s records set out the various occasions that the plaintiff was placed in the Management Unit and the reason he was placed under separate confinement/ segregation/ investigative segregation during those periods. It includes that the plaintiff was alleged to have deliberately caused a power outage by starting a fire in his cell, various assaults on other detainees, and disciplinary breaches. Mr Rust noted that during the plaintiff’s period of segregation from 20 April 2019 to 29 April 2019, he recalled being informed by a team member that after the plaintiff was placed under segregation on 20 April 2019, he said he was going to hang himself. Thereafter, the plaintiff was referred for assessment by Justice Health Services at the Crisis Support Unit within the AMC. The assessment was completed and the plaintiff was returned to the Management Unit by Justice Health Services on 21 April 2019.
Mr Rust’s affidavit also outlines his interactions with the plaintiff. Mr Rust recalled that the plaintiff said to him on several occasions in or about 2019 that he felt AMC staff were discriminating against him because of his “political views”. The plaintiff had said to Mr Rust words to the effect that “AMC staff were discriminating against white detainees” because they did not recognise or celebrate the culture of white detainees.
Mr Rust also recalled the plaintiff saying to him in or about 2019 words to the effect that AMC staff were placing him in an “impossible position” by increasing the numbers of “non-white” detainees in the Sentenced Unit in which he was accommodated. The plaintiff said words to the effect that he was concerned that if the proportion of Indigenous and non-white detainees got bigger, he would find himself in a position where he was likely to assault them.
Mr Rust recalled that on or about 16 April 2019, he was informed by AMC staff who had contact with the plaintiff at that time that a search had been conducted of his cell in the Sentenced Unit. During that search, AMC staff:

Mr Kelly outlined the process of what occurs when a detainee first arrives at the Management Unit in his affidavit. Mr Kelly or another Area Manager will meet with the detainee and explain why they have been placed in the unit. A Corrections Officer from the Management Unit then conducts an induction where the detainee is given a copy of the Segregation/ Separate Confinement Rule and Regime for the Management Unit. A copy of this document was annexed to Mr Kelly’s affidavit.
Mr Kelly noted that detainees housed in the “soft side” of the Management Unit have access to the same entitlements that all detainees have during their time in custody, as well as other privileges including access to a kitchenette containing a microwave, toaster, and kettle, as well as access to the general exercise yard on the “soft side” of the Management Unit.
Mr Kelly stated that detainees contained in the “hard side” remain in their cell for most of the day and are generally only permitted to leave their cell to access their entitlements. Mr Kelly confirmed that “hard side” detainees do not have access to the privileges that those on the “soft side” have. Mr Kelly stated in his affidavit that “hard side” detainees are not entitled to have access to the general exercise yard on the “hard side” of the Management Unit.
Mr Kelly noted that when a detainee on the “hard side” is taken out of their cell, they are required to be handcuffed and accompanied by at least two staff from the Management Unit, depending on the willingness of the detainee to comply with directions and the risk posed by the detainee. Mr Kelly confirmed that some detainees may require additional staff members to control them, which is dependent on the risk assessment of the detainee. The handcuffing procedure is set out in the 2019 Operating Procedure.
Prior to the enactment of the 2019 Operating Procedure, Mr Kelly stated that the previous practice was that “hard side” detainees were to be handcuffed whenever they were being moved from their detail, at the discretion of a supervising Corrections Officer. The decision as to handcuff a detainee or not was based on the safety or security risk posed by the detainee. Mr Kelly noted that a risk assessment would be conducted for each detainee.
Mr Kelly stated that the process of handcuffing a “hard side” detainee first requires the detainee to put their hands through a hatch in their cell door so that a Corrections Officer can apply the handcuffs. The detainee would then retract their handcuffed wrists back into the cell, the cell door would then be opened before the attending Corrections Officers (usually two) would escort the detainee from the cell.
Mr Kelly confirmed that neither of the general exercise yards in the Management Unit have doors with hatches. As a result, Mr Kelly stated it is not possible for staff to implement the handcuffing policy for “hard side” detainees. Mr Kelly noted that the absence of hatches in the general exercise yards also means it is not always possible for staff to safely remove or reapply a detainee’s handcuffs in the general exercise yards.
Mr Kelly also deposed that the Management Unit does not have sufficient staffing numbers to undertake escorting nine “hard side” detainees to and from the general exercise yard for one hour each. Instead, Mr Kelly relied upon the availability of the rear courtyard as a means of providing access to the outdoor air and a space to exercise or smoke cigarettes.
Mr Kelly confirmed that detainees housed within both the “hard side” and the “soft side” of the Management Unit can request access to their rear courtyard at any time after morning muster and before the 6:00PM lock-in, by pressing the internal intercom inside their cell. Mr Kelly also noted that the two Corrections Officers who work in the Management Unit also undertake “rounds” of the Management Unit hourly, during which detainees are given an opportunity to make requests, such as for access to the rear courtyard and cigarette lighters.
Mr Kelly stated that when a detainee requests access to their rear courtyard, the Management Unit staff electronically unlock the door via remote means. Mr Kelly noted that very occasionally, staff will advise the detainee that there might be a short delay if the staff are already undertaking another task. Mr Kelly stated that once the door to the rear courtyard is remotely unlocked, it remains open until the detainees choose to physically close the door or it will be locked by staff for the 6:00PM lock-in.
Mr Kelly further noted that sometimes a detainee will be moved from the “hard side” to the “soft side” as part of their transition from the Management Unit back to regular AMC accommodation. Mr Kelly could not recall if the plaintiff was ever moved from the “hard side” to the “soft side” during his time in the Management Unit.
Mr Kelly recalled first meeting the plaintiff when the plaintiff was placed in Sentenced Unit 1. Mr Kelly recalled the plaintiff initiating conversations, including asking Mr Kelly about his experience working in UK prisons. In 2018 and 2019, Mr Kelly spoke to the plaintiff during the plaintiff’s time when he was in the Management Unit. Mr Kelly noted that the plaintiff was always polite and respectful to him and other AMC staff. However, Mr Kelly further noted that he was aware from his discussions with Management Unit staff and from his review of documentation in 2018 and 2019 that some of the plaintiff’s placements in the Management Unit were a result of him assaulting other detainees.
Mr Kelly was not required for cross-examination and did not give oral evidence at the hearing.

Mr Gregory Tarlinton prepared an affidavit affirmed on 27 April 2021 that was relied upon by the defendant. Mr Tarlinton is employed as an Area Manager of Accommodation (Corrections Officer 3 level role) at the AMC and has been working in that role since approximately September 2020. Mr Tarlinton has worked at the AMC since 2011.
Mr Tarlinton was made aware of the affidavit of Mr Rust in relation to this matter. Mr Tarlinton noted that Mr Rust is currently on medical leave from his employment and it is not known when he will return. Mr Tarlinton’s affidavit was prepared for the purpose of responding to and, where appropriate, adopting or supplementing, the evidence of Mr Rust. Mr Tarlinton had also read the plaintiff’s second affidavit.
Mr Tarlinton adopted the description of the Management Unit as set out in Mr Rust’s affidavit. Mr Tarlinton noted that unlike Mr Rust, he does not have authority to make a direction to place a detainee under separate confinement but adopted the description given of the process for placing a detainee under separate confinement.
Mr Tarlinton also adopted Mr Rust’s description of the rear courtyard. In response to the plaintiff’s second affidavit, Mr Tarlinton further noted that the access door to each rear courtyard has a clear glass window which is positioned above the door handle, approximately at eye level, and is approximately 10cm narrower than the width of the door to allow for the frame of the window. Mr Tarlinton referred to Mr Rust’s description of the built-in observation panel, expanding on this statement to add that the panel serves as a window to allow the detainee to see the area outside the rear courtyard, which includes grass and paths to the Colourbond fence around the perimeter of the Management Unit. Mr Tarlinton further noted that the window provides a view of the same grassed area and fence as is visible from the general exercise yard, varying slightly depending on which cell the detainee is housed in. Mr Tarlinton also stated that the rear courtyard walls are approximately 2.65 metres high.
Mr Tarlinton agreed with Mr Rust’s description of the 2019 Operating Procedure as to handcuffing but clarified that he instead refers to the “handcuffing policy” as described by Mr Rust as the “handcuffing practice” as before 13 June 2019 it was not a written policy. In respect of Mr Rust’s discussion of “hard side” detainees not being permitted access to the general exercise yards, Mr Tarlinton further emphasised that only one “hard side” detainee can be accommodated in a general exercise yard at any one time. Mr Tarlinton noted that this was on account of safety and security risks, as well as detainees in separate confinement being prohibited from socialising with other detainees.
Mr Tarlinton also adopted Mr Rust’s description of the rear courtyards adjoining the Management Unit cells. Mr Tarlinton further noted that the door handle to the rear courtyard is an anti-ligature door handle and once unlocked, a detainee must physically open the door to pass through it. The electronic locking system does not control the physical opening or closing of the door. Mr Tarlinton noted that the usual practice in the Management Unit is for a detainee’s request for the door to be unlocked to be granted immediately, or within a few minutes if AMC staff are completing another task, and for the door to remain open until physically closed by the detainee or for evening lock-in. Mr Tarlinton stated that during his employment at the AMC, he had not known or heard of any detainees’ requests to have access to the rear courtyard being denied, other than in exceptional circumstances.
Mr Tarlinton adopted Mr Rust’s description of the Management Unit staff conducting “rounds” as well as confirming that all detainees on the hard side have the same level of access to the rear courtyard. Mr Tarlinton further confirmed that he had recollection that during 2018 and 2019 detainees in the Management Unit would often ask for the door to the rear courtyard to be unlocked after morning muster and then chose to leave it unlocked until the lock-in, so that they could use the rear courtyard throughout the day.
Mr Tarlinton adopted Mr Rust’s description of the general exercise yards and the safety risks posed by granting detainees access to these spaces. Mr Tarlinton further noted that the most significant issue with allowing detainees access to a general exercise yard is the ability of the detainees to climb the mesh in a large space. Mr Tarlinton also recalled being advised by an AMC staff member in his team that the plaintiff had said he was going to hang himself. Mr Tarlinton noted that he had not had a direct conversation with the plaintiff as to this issue.
Mr Tarlinton recalled speaking to the plaintiff during the plaintiff’s time in the Management Unit on most days that he was rostered to work, approximately 3-4 days per fortnight on average. Mr Tarlinton also had regular conversations with the plaintiff in his previous role as a supervisor in Sentenced Unit 1 when the plaintiff was housed there from 2017 until July 2018. Mr Tarlinton adopted Mr Rust’s outline of his conversations with the plaintiff where the plaintiff would complain about the increasing numbers of “non-white” detainees. Mr Tarlinton noted that he had had conversations with the plaintiff with words to the similar effect in or about 2018.
Mr Tarlinton also adopted Mr Rust’s description of the search executed on the plaintiff’s cell when he was housed in Sentence Unit 1. Mr Tarlinton recalled attending the plaintiff’s cell himself and observing the Nazi paraphernalia.
Mr Tarlinton further adopted Mr Rust’s description of conversations with the plaintiff during his time in the Management Unit. Mr Tarlinton’s dealings with the plaintiff in or about early 2019 is consistent with the plaintiff expressing that he did not wish to be placed with Indigenous or culturally diverse detainees and expected to have his views catered for.
Mr Tarlinton’s affidavit also responded to content contained within the plaintiff’s second affidavit. Mr Tarlinton agreed with the plaintiff’s outline of his time spent in the Management Unit, the reasons why the plaintiff was in the Management Unit, and the particular cell that the plaintiff was housed in. Mr Tarlinton accepted that the confinement period was 63 days and further accepted that the plaintiff was never given access to a general exercise yard during the confinement period.
In respect of the plaintiff’s description of there being no air circulation, breeze, or direct light in the rear courtyard, Mr Tarlinton noted that his observation of the rear courtyard is that one can see the sky through the mesh cover of the rear courtyards. Mr Tarlinton further noted that sunlight and rain penetrate the mesh into the courtyard. Mr Tarlinton also stated that cigarette smoke dissipates through air movement past the open mesh and into the atmosphere.
Mr Tarlinton also responded to the plaintiff’s outline of the process to seek access to the rear courtyard and whether access may be denied. Mr Tarlinton stated that in his experience, there are only two exceptional reasons why a detainee’s access to the rear courtyard would be denied:

Mr Tarlinton stated that if a detainee is denied access to the rear courtyard, the usual practice would be for this denial to be recorded by AMC staff in the case notes and in the Management Unit Daily Log Sheet. Mr Tarlinton further confirmed that hourly rounds are conducted for detainees in the Management Unit in which detainees are visually inspected as being present in the cell. The Management Unit Daily Log Sheet coins the list of detainee entitlements that are checked off throughout the day by staff as each entitlement is met. Mr Tarlinton confirmed that the sheet is used to record whether a detainee is present in their cell for each hourly observation round.
Mr Tarlinton conducted a review of the plaintiff’s case notes and daily check sheets. Mr Tarlinton could not discern a reference to the plaintiff being denied access to the rear courtyard during his time in the Management Unit. However, Mr Tarlinton acknowledged there was a single reference to the plaintiff being denied access to the “external yard”, which was recorded on the case note sheet dated 27 March 2019.
Mr Tarlinton also referred to an exhibit of the plaintiff’s second affidavit; the Detainee Observation Forms, in respect of the plaintiff’s claim that on some occasions, he did not access the rear courtyard at all and remained in his cell for 24 hours. Mr Tarlinton noted that when conducting hourly observation rounds of the detainees, the AMC staff member will look through the glass window of the cell door and record whether the detainee is present. Mr Tarlinton stated that this is often recorded as “in cell”, which means that the detainee was present and securely located behind the cell door. Mr Tarlinton clarified that “in cell” may include if the detainee was sighted in the rear courtyard with the internal door open.
Mr Tarlinton addressed the portion of the plaintiff’s second affidavit where the plaintiff outlined his completion of a “Prisoner’s Complaints Form” on 5 January 2019. Mr Tarlinton recalled having a conversation with the plaintiff on or about 5 January 2019, during which the plaintiff said words to the effect of, “this place is uncomfortable, I don’t have access to my usual property and activities”. Mr Tarlinton recalled that he then explained to the plaintiff that the Management Unit is not intended to be comfortable and that it does comply with the minimum entitlements. Mr Tarlinton’s recollection was that the plaintiff was then frustrated and said words to the effect of, “I just want to get back to being able to exercise properly and regularly”. Mr Tarlinton was aware of his previous interactions with the plaintiff in the sentenced area that the plaintiff was a regular user of the gym equipment in the Sentenced Unit 1 exercise yard.
Mr Tarlinton formed the view during his discussions with the plaintiff at this time that the plaintiff was experiencing difficulty coping emotionally. Mr Tarlinton considered the plaintiff’s mental health state and formed the view that the benefit of keeping the plaintiff in segregation for safety and security reasons did not outweigh the risk of deterioration of his mental health. Mr Tarlinton had the power at the time to move detainees in the Management Unit back into the regular AMC accommodation. Accordingly, Mr Tarlinton made the decision to return the plaintiff to his regular AMC accommodation.
Mr Tarlinton also responded to the affidavit of Mr Pickles. In respect of Mr Pickles’ reference to the “grassed area” surrounding the Management Unit, Mr Tarlinton confirmed that the AMC do not use the grassed area for any detainee access as it is not a secure area. Mr Tarlinton noted that the grassed area is outside the contained secure area inside the electric fence and that the fence surrounding the grassed area is merely a courtesy fence, rather than a security fence.

Mr Tarlinton gave oral evidence at the hearing. Parties agreed that to expedite the matter, his evidence-in-chief was brief with more extensive cross-examination and the opportunity for re-examination. In cross-examination, Mr Tarlinton confirmed that the plaintiff was always polite to him and that from his experience, he had not seen the plaintiff have any issues with AMC staff.
Mr Tarlinton gave evidence that the “hard side” “was a less comfortable area” initially but then stated that the difference between the sides of the Management Unit was by name only and that they contained the same facilities.
Mr Tarlinton confirmed that the door to the general exercise yard could be opened remotely by Management Unit staff. Mr Tarlinton further confirmed that the handcuffing practice is a blanket policy that applies to all detainees in the Management Unit for safety reasons.
When asked whether if the handcuffing practice was not in place, it could be possible for a Management Unit detainee to be granted remote access to the general exercise yard, Mr Tarlinton confirmed it was possible and it had been a previous practice. However, Mr Tarlinton stated that it was not a successful practice as a lot of detainees had caused damage to the Management Unit and there were also occasions of detainees refusing to go back into their cells. Mr Tarlinton gave evidence that such damage included the telephones being broken, detainees throwing cups of urine or faeces over other detainees’ doors, and throwing things under the Management Unit staff station door.
Mr Tarlinton accepted that it was possible to replace the door to the general exercise yard with a hatch in order to comply with the handcuffing practice. Mr Tarlinton gave evidence that under the previous practice of allowing detainees to access the general exercise yard by remotely unlocking the door, there were instances of detainees climbing the fence, sitting on top of the CCTV cameras, and refusing to come down. Mr Tarlinton noted that it was dangerous to allow detainees access to the general exercise yard for the particular detainee, the staff and the other detainees who would not be able to contact the staff if the staff were preoccupied with attempting to get a detainee down from the fence.
Mr Tarlinton confirmed that it was his belief from the beginning that the rear courtyard fulfilled the requirement for access to open air and exercise, even before the implementation of the 2019 Operating Procedure.
When referred to the checklist completed by Management Unit staff each daily for each detainee, Mr Tarlinton confirmed that “time out of cell” does not include when a detainee uses the rear courtyard. Instead “time out of cell” would include when a detainee comes out of the cell to use the telephone, go to a visit or to a health appointment.
Mr Tarlinton stated that if a detainee requests access to the rear courtyard, it is typically opened immediately or if not, within a matter of minutes. Mr Tarlinton accepted that was his own experience of detainees’ access to their rear courtyard. Mr Tarlinton further accepted that his belief that the plaintiff was not ever denied access to the rear courtyard was based on the review of documentation, rather than his own personal knowledge. When it was put to Mr Tarlinton that the plaintiff maintained he was denied access to the rear courtyard on some occasions, Mr Tarlinton responded that he doubted that that had occurred. Mr Tarlinton noted that there have been other detainees who have been non-compliant where it would present a danger to open the rear courtyard.
Mr Tarlinton was asked whether it could be possible for there to be a rolling roster where the rear courtyard door was opened everyday for one hour, rather than a detainee having to request access each time. Mr Tarlinton stated that this was not possible due to safety and security concerns in the Management Unit. Mr Tarlinton was then asked whether such a roster could be utilised to allow Management Unit detainees access to the general exercise yard where only one detainee would be taken out at a time and if a hatch was installed on the door. Mr Tarlinton responded that the AMC would not follow such a course because of safety reasons. Mr Tarlinton noted that it hypothetically could be done but that access to the rear courtyard is sufficient and no detainees in the Management Unit “misses out on it” as they all have the same access.
Mr Tarlinton confirmed that if the handcuffing procedure was not in place and if it did not require the Senior Director of Operations’ approval, it would be possible to allow detainees who were compliant to be taken on a walk outside for an hour. Mr Tarlinton noted that this would also depend on whether there was sufficient staffing resources to give 14 detainees, assuming the Management Unit is at full capacity, that amount of exercise.
Mr Tarlinton gave evidence that the intercom in a Management Unit cell is not able to be turned off by the Management Unit staff. When asked whether it would be possible to simply ignore the “buzzing” of the intercom, Mr Tarlinton stated that the intercom makes a loud noise and it would be difficult to ignore it. Mr Tarlinton further noted that if Management Unit staff were to ignore a detainee using the intercom, that would cause serious issues for the staff, particularly if it was a detainee complaining of a medical issue.
Mr Tarlinton stated that Management Unit staff would remotely unlock the rear courtyard door if they had noticed that a detainee had not requested it that day, to allow a detainee to access the rear courtyard for exercise. Mr Tarlinton stated that this was to encourage detainees to access the rear courtyard if it had been observed that the detainee had not exercised that day. Mr Tarlinton noted that most detainees typically request for the rear courtyard door to be opened electronically.
When asked whether there was a reason the mesh covering the roof of the rear courtyard was narrower than the mesh in the general exercise yard, Mr Tarlinton noted that the mesh in the rear courtyard is intentionally narrower to prevent it being a ligature point. Mr Tarlinton acknowledged he had previously noted that the open door to the rear courtyard could also present as a ligature point, but noted that there was a higher risk of self-harm in the general exercise yard.
Mr Tarlinton gave evidence that if a detainee is at risk of self-harm, an at-risk referral would be completed and submitted. Mr Tarlinton noted that the detainee would then be kept under constant observations until they were assessed by a forensic mental health clinician and moved to the Crisis Support Unit of the AMC. Mr Tarlinton stated that a detainee would not be placed in the Management Unit if staff felt there was a risk of self-harm or suicide. Counsel for the plaintiff then questioned Mr Tarlinton about the risk of self-harm in the general exercise yard and that it would then not be relevant to an assessment of whether a detainee can be granted access to the general exercise yard, on this basis that if they were at risk of self-harm they would be removed from the Management Unit. Mr Tarlinton conceded this point.
It was put to Mr Tarlinton that the only reasons that Management Unit detainees are not allowed to access the general exercise yard is due to the hand-cuffing procedure, which could be adequately addressed by the installation of a hatch or remote access to the general exercise yard; the risk of detainees scaling the fence; and the risk that the detainees will scale the fence and sit on the CCTV camera. Mr Tarlinton accepted that those were reasons that contributed to the decision, but further emphasised that the size of the general exercise yard creates an issue if a detainee is not compliant and requires restraint. Mr Tarlinton further accepted that another reason that the general exercise yard is not utilised is because the rear courtyard is used as the default.
Mr Tarlinton gave evidence that there was no exception to the rear courtyard being used as the default and there is no assessment to determine whether a detainee can access the general exercise yard. Of the general exercise yard, Mr Tarlinton stated “we don’t use it” and confirmed this had been the practice since cl 3.4 of the 2019 Operating Procedure came into effect. Mr Tarlinton stated that a risk assessment to determine whether or not a detainee can access the general exercise yard is “not something we do as part of a person’s fresh air and exercise”.
Mr Tarlinton agreed that when detainees were allowed to use the general exercise yard between 2012-2017, a purpose of the rear courtyard was to allow detainees to smoke. Mr Tarlinton noted that the rear courtyard was never designated as a smoking area but the preference was that if detainees were to smoke, they could do so in the rear courtyard.
It was put to Mr Tarlinton that the reason it is called the “hard side” of the Management Unit is because it is harder on detainees to be put there. Mr Tarlinton disagreed with the proposition and stated that the names had stuck since the area first opened. Mr Tarlinton stated that the most secure cell in the Management Unit was cell 5, which was located on the “soft side”.
In re-examination, Mr Tarlinton was asked whether a risk assessment was undertaken in relation to the plaintiff each time when he was placed in the Management Unit on the various occasions he was there during the confinement period. Mr Tarlinton gave evidence that no specific risk assessment was undertaken and instead the order that led to a detainee being placed in the Management Unit was relied upon.
When asked why a detainee is placed on the “hard side” of the Management Unit, Mr Tarlinton again noted that there was “no difference” between the cells on either side of the Management Unit.
Counsel for the defendant asked Mr Tarlinton why the plaintiff was not given access to the general exercise yard. Mr Tarlinton responded “because the process in the unit is that we don’t use it”. Mr Tarlinton gave evidence that the general exercise yard is not used because “it’s just much less safe than giving someone the exercise in the rear courtyard of their cell”.
Mr Tarlinton was asked whether the plaintiff was considered a risk as a consequence of his placement in the Management Unit. Mr Tarlinton noted that the plaintiff was often placed in the Management Unit due to assaulting other detainees and so the plaintiff did pose a risk. Mr Tarlinton stated that the AMC does not do anything that puts the staff more at risk than is necessary.
In respect of the possibility of installing a door with a hatch to the general exercise yard, Mr Tarlinton was then asked what would occur if such a door was installed and a detainee using the yard refused to exit the general exercise yard by inserting their hands into the hatch. Mr Tarlinton stated that the Management Unit staff would negotiate with the detainee for a period of time, which in his experience has the capacity to take hours or even up to three quarters of a day. Mr Tarlinton noted that if a detainee remained non-compliant after negotiation, a team of officers in personal protective equipment (PPE), including helmets, vests and shields, would be assembled and then an extraction would occur whereby the detainee is taken control of, handcuffed and returned to their cell.
Mr Tarlinton was asked whether that scenario presented a greater risk than containment in the rear courtyard. Mr Tarlinton confirmed that the general exercise yard presented a greater risk because if a detainee became non-compliant in their courtyard, they would already be contained and there was no risk of the detainee being at heights and falling.
Mr Tarlinton further stated that he did not recall the plaintiff ever having indicated to him that he had been denied access to the rear courtyard during the confinement period. Mr Tarlinton confirmed that he had no recollection of any other staff member informing him that the plaintiff had made such a complaint.
Mr Tarlinton was then asked why it was dangerous to automatically keep the door open to the rear courtyard. Mr Tarlinton gave evidence about the door providing a ligature point and gave a description of how a detainee might attempt to hang themselves from the door, noting that the AMC had experienced a number of occurrences where that had taken place. Mr Tarlinton noted that that risk informed the requirement for staff to perform observations. When asked whether detainees had ever not wanted the door to the rear courtyard opened, Mr Tarlinton confirmed that that had occurred in circumstances where a detainee simply refuses to go outside.
Mr Tarlinton confirmed in light of the risk assessment that takes place if a detainee indicates a risk of self-harm, there are occasions where the outcome of that assessment allows for a detainee, who is at potential risk of self-harm but not immediate risk, to remain in the Management Unit. If the risk is more immediate, a detainee will be moved to the Crisis Support Unit.

The Explanatory Statement made clear that s 30, like s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter), is an interpretation provision. The Explanatory Statement also suggested that s 30 will result in varying levels of consistency with human rights depending on the purpose of the particular legislation, and on what interpretations are available in any particular case. The Human Rights Commissioner, in my view, correctly noted that whether this means that s 28 of the Human Rights Act, the equivalent of s 7(2) of the Victorian Charter, is a part of the interpretive process, and if so, the nature of that role, remains to be determined: see also R v QX (No 2) [2021] ACTSC 244 (R v QX (No 2)).
In Andrews v Thomson [2018] ACTCA 53; 340 FLR 439 (Andrews v Thomson), the Court of Appeal confirmed that s 30 of the Human Rights Act should be interpreted in the same way as the “close equivalent” s 32 of the Victorian Charter, and also applied Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 (Momcilovic v The Queen) to s 30 at [35].
In Momcilovic v The Queen, six Justices of the High Court held that s 32 of the Victorian Charter is an ordinary rule of interpretation: [51] (French CJ); [146], [170] (Gummow J with Hayne J agreeing at [280], [545]-[546], [565], [574] (Crennan and Kiefel JJ), [684] (Bell J). In light of the decision in Momcilovic v The Queen, the proper interpretation and application of s 32 of the Victorian Charter has since been the subject of extensive consideration by the Victorian Court of Appeal: Slaveski v Smith [2012] VSCA 25; 34 VR 206 (Slaveski v Smith); Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc [2012] VSCA 91; 38 VR 569; Nigro v Secretary to the Department of Justice [2013] VSCA 213; 41 VR 359 (Nigro v Secretary to the Department of Justice); WBM v Chief Commissioner of Police [2012] VSCA 159; 43 VR 446; Director of Public Prosecutions v Leys [2012] VSCA 304; 44 VR 1; Victoria Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1.
In Slaveski v Smith at [24], the Victorian Court of Appeal interpreted Momcilovic v The Queen as preserving a role for s 32 of the Victorian Charter where the words of a statute are capable of more than one meaning:

Young J came to a conclusion at [272]-[276] that the conditions of detention described above meant that Corrections failed to treat the prisoners in that facility with humanity and with the inherent dignity due to every person, the equivalent of s 19(1) of the Human Rights Act.
I note at this juncture that the Supreme Court of New Zealand is New Zealand’s highest court and sits above the New Zealand High Court and its Court of Appeal. The New Zealand High Court decision of Taunoa v Attorney-General was determined by a single judge, whereas the New Zealand Supreme Court decision of Taunoa v Attorney- General was determined by its apex court consisting of five judges.
The defendant agreed with the plaintiff’s framing of the purpose of s 19(1) and its source in the International Covenant on Civil and Political Rights. The defendant also agreed that the starting point for s 19(1) is that prisoners should not be subjected to hardship or constraint other than that resulting from the deprivation of liberty: Castles v Secretary, Department of Justice at [108]. The defendant however emphasised that later in Castles v Secretary, Department of Justice, when referring to R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [5], Emerton J observed at [111] that a necessary consequence of the deprivation of liberty is that ‘[r]ights and freedoms which are enjoyed by other citizens will necessarily be ‘curtailed’, ‘attenuated’ and ‘qualified’ by reason of the deprivation of liberty”. This statement of Emerton J was cited with approval in Certain Children at [175].
The equivalent right to art 10 of the International Covenant on Civil and Political Rights in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) is art 3. The defendant referred to Kudla v Poland (2002) 35 EHRR 11 (Kudla v Poland), where it was held at 91 that in order to establish a breach of art 3, a person must show more than merely deprivation of a benefit or subjection to ill-treatment. It was submitted that instead, it is necessary to establish a minimum level of severity, which will depend on an assessment of all of the circumstances of the case, and include the nature and context of treatment, the manner and method of execution, the duration of treatment, and its physical and mental effects on the victim: Kudla v Poland, cited with approval in Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 at [91].
The defendant also referred to the question that arises as to what s 19(1) represents that is not already accommodated by s 10(1)(b) of the Human Rights Act. The defendant noted that the proscription in s 19(1) operates in its unique context, namely detention. It was submitted that this context was important in interpreting the scope of s 19(1). The defendant submitted that any suggestion that s 19(1) imports a lower bar than s 10(1)(b), should be rejected.
I note in dealing with the defendant’s submissions that in Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 (Islam v Director-General, Justice and Community Safety Directorate) at [79] McWilliam AsJ observed that the rights in the Human Rights Act are to be construed in “the broadest way possible”.
I also note that in Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33 at [73] Mansfield J rejected a claim that the failure to provide the plaintiff in that matter with employment of his choosing involved a failure to treat him with humanity and with respect for the inherent dignity of the human person. Mansfield J’s observations were cited with approval by Mossop M, as his Honour then was, in Islam v Director-General of the Justice and Community Safety Directorate. At [87] Mossop M concluded that s 19(1) provides a “general entitlement to humane treatment” and that the question of whether or not “that statutory entitlement has been denied is a question of fact and degree to be assessed in all the circumstances”.
Importantly, in Castles v Secretary, Department of Justice, Emerton J held at [108] that when analysing the right to humane treatment, “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”.
It is apposite to now refer to international jurisprudence. Section 31(1) of the Human Rights Act provides that international law, and the judgments of foreign and international court and tribunals relevant to a human right may be considered in interpreting the human right. Relevantly, the Human Rights Commissioner highlighted that the Victorian Supreme Court has taken the UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) into account when defining the scope of rights in the Victorian Charter: Certain Children at [154]; Certain Children (No 2) at [264]- [265]; De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111; 48 VR 647 (De Bruyn v Victorian Institute of Forensic Mental Health) at [176]-[178].
I interpolate to note that the Mandela Rules are guidelines provided by the United Nations Office on Drugs and Crime for participating countries for protecting the rights of persons deprived of their liberty. The Mandela Rules recognise obligations to treat detainees with respect for their inherent dignity and value as human beings, as well as the prohibition of torture and other degrading treatment.
The Human Rights Commissioner referred to the discussion of r 23(1) of the Mandela Rules, the exercise and open air entitlement, in A Human Rights Approach to Prison Management: Handbook for Prison Staff, which was cited in the Explanatory Statement to the Corrections Management Bill. Reference was also made to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in its Second General Report, specifically the following:

Schedule 1 of the Human Rights Act refers to s 10(1)(b) of the Act being modelled on art 7 of the International Covenant on Civil and Political Rights. The plaintiff submitted that this right is not only considered with the physical integrity of individuals, but also with their mental integrity and their inherent dignity as human beings: UN General Comment No 20 at [2] and [5]. The plaintiff referred to Certain Children (No 2) at [250] where it was held that cruel or inhuman treatment or punishment involves acts which do not constitute torture, but which nevertheless possess a minimum level of severity. In R (Limbuela) v Home Security [2006] 1 AC 396 at [7], it was held that treatment is “inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being”. Dixon J observed in Certain Children (No 2) at [250] that “the purpose of the offender’s conduct will, at the very least, be a factor to be taken into account, though the absence of such a purpose does not conclusively rule out a violation of the right”. In this context, use of the word “offender” refers to the person or entity imposing the treatment.
As underlined earlier, the European Convention on Human Rights does not contain a stand-alone right to humane treatment when deprived of liberty (an equivalent to s 19(1) of the Human Rights Act) and as such, the European case law on access to open air and exercise is discussed in relation to art 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment.
In support of its sought interpretation of s 45, the plaintiff relied upon Moiseyev v Russia. In that matter, the exercise yards in a Moscow prison were two square metres larger than the cells, making it difficult to utilise the space for exercise. The yards were surrounded by three-metre-high walls with an opening to the sky protected with metal bars and a thick net. The European Court of Human Rights considered that the restricted space coupled with the lack of openings undermined the facilities available for recreation and recuperation. The Court found that the fact that the applicant was obliged to live, sleep and use the toilet in poorly lit and ventilated cells for almost four years, without any possibility for adequate outdoor exercise must have caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. At [125]-[126] the Court held that it followed that the conditions of the applicant’s detention amounted to inhuman and degrading treatment.
The defendant noted that the concepts of “cruel, inhuman and degrading” necessarily require ill treatment that reaches a minimum level of severity in order for there to be a contravention: Kalashnikov v Russia [2002] ECHR 596; 36 EHRR 34 cited in Islam v Director-General, Justice and Community Safety Directorate (No 3) [2016] ACTSC 27. The defendant highlighted that relevant factors for determining whether conduct is cruel, inhuman or degrading are: the purpose for which the ill-treatment is inflicted, the context in which it is inflicted, intention or motivation behind it, and whether the victim was in a vulnerable situation: Nicolae Virgiliu Tănase v Romania [2019] ECHR 491 at [121], cited in Islam v Director-General, Justice and Community Safety Directorate at [90]. Conduct that is otherwise legitimate treatment or punishment does not contravene s 10(1)(b) of the Human Rights Act, even though there may be a degree of inevitable humiliation connected with the treatment: Wainwright v United Kingdom (2007) EHRR 40, cited in Islam v Director-General, Justice and Community Safety Directorate at [94].
The defendant underlined McWilliam AsJ’s summary of the principles in Islam v Director-General, Justice and Community Safety Directorate at [95]-[97]:

Schedule 1 of the Human Rights Act confirms that the rights contained within s 18 are modelled on art 9 of the International Covenant on Civil and Political Rights. In Monaghan v ACT (No 2) [2016] ACTSC 352; 315 FLR 305 (Monaghan v ACT (No 2)), Mossop AsJ, as his Honour then was, observed at [228] that Manga v Attorney-General [2000] 2 NZLR 65 (Manga v Attorney-General) provided authority for the proposition that unlawful detention is arbitrary detention. In Manga v Attorney-General, Hammond J held at [40] that lawful detentions may also be arbitrary “if they exhibit elements of inappropriateness, injustice or lack of predictability of proportionality”. Sleiman v Commissioner of Corrective Services [2009] NSWSC 304 at [34]-[36] helpfully summarises the principles on arbitrary detention.
The plaintiff drew upon the UN Human Rights Committee General Comment No 35, where the committee observed that arts 7 and 10 of the International Covenant on Civil and Political Rights primarily address the conditions of detention; detention may become arbitrary within the meaning of art 9 if the manner in which a prisoner is treated does not relate to the purpose for which they are ostensibly being detained.
The plaintiff referred to the New Zealand Supreme Court decision of Taunoa v Attorney- General at [102] where Elias CJ noted, in accordance with observations made by McIntyre J in R v Smith (Edward Dewey) [1987] 1 SCR 1045 that: if treatment is authorised by law and imposed in accordance with standards or principles which are rationally connected to the purpose of the legislation, it will not be arbitrary. When it departs from the terms and purpose of legislation, it is likely to be arbitrary in its application and there is no assurance that it will conform to proper standards.
The defendant noted that the term “arbitrary” in the context of s 18(1) of the Human Rights Act refers to conduct extending beyond lawfulness to unreasonable conduct: Monaghan v ACT (No 2) at [233]. The defendant submitted that the term should be interpreted to include elements of inappropriateness, injustice and lack of predictability: A v Australia (Communication 560/1993 3 April 1997) at [9.2] cited in Monaghan v ACT (No 2) at [231]. Regard should also be had to the nature and extent of any departure from the substantive and procedural standards involved: Neilsen v Attorney-General [2001] 3 NZLR 433 at [34], cited in Monaghan v ACT (No 2) at [229].
The defendant noted that s 18 of the Human Rights Act is concerned with the deprivation of liberty, and not the conditions of detention. It was submitted that the conditions of detention is the express preserve of s 19, and more generally of s 10 of the Human Rights Act. On the relevant authorities discussed above I accept this submission.

The defendant submitted that in construing the scope of the obligation in s 45(1) of the Corrections Management Act, the plaintiff’s reference to the context in which “open air” is afforded ought to be understood specifically as the Management Unit, which houses particular types of detainees. The defendant referred to evidence of Mr Tarlinton, which made clear that detainees are only sent to the Management Unit under separate confinement (a disciplinary penalty) or segregation. Reference was also made to the plaintiff’s evidence that he did not disagree with his placement in the Management Unit and his concession that he was probably a security risk to other detainees in light of his violent conduct.
The defendant submitted that the plaintiff had overstated what is a minimum standard or treatment, in the references to the “free flow” of fresh air; “abundant” natural light, a “clear view” of the sky, and a “wide view” of vegetation. It was submitted that the characterisation of “open air” as a matter of impression was unsupported by authority.
The defendant submitted that the ordinary meaning of the words “open air” provided little assistance in understanding the defendant’s obligation, that is divorced from the context in which those words are used. The defendant noted that the ordinary meaning of “open air” is not appropriate to apply to detainees in a prison facility, and ignores the question of “access” to it, which is qualified by considerations of practicability.
The defendant submitted that on the plaintiff’s urged interpretation of “open air”, no detainee in the AMC has or could have access to a “free or unenclosed space” as they are detained in a prison facility. The defendant submitted that “outdoors” cannot be given its ordinary meaning for the purposes of interpreting “open air” in s 45 because to do so would suggest detainees ought to have access to a space that is “out of doors… not indoors or under cover”. It was submitted that that construction of “open air” was simply inappropriate for a prison context. The defendant urged an interpretation of “access to the open air” which is qualified by considerations of practicability in the prison context.
The defendant urged an interpretation of “open air” and “outdoors” in the context of s 45 of the Corrections Management Act as a space which is exposed to fresh air, changes in the weather, permits natural light, and from which a “glimpse of the world outside” can be obtained: A Sourcebook on Solitary Confinement, citing Poltoratskiy v Ukraine (European Court of Human Rights, Application No 38812/97, 29 April 2003).
The defendant submitted that giving the words a construction which is compatible with human rights , in the context of s 45, “access to the open air” ought to be construed as encompassing a space external, or in addition, to the detainee’s cell, from which the detainee has a view of the area immediately beyond that space, and which receives natural light and is exposed to fresh air and changes in the weather: Mandela Rules r 23(1).
The phrase “access to the open air” is not defined in the Corrections Management Act. Nor have the words been construed by any Australian court in this context. The content of this concept is informed by the natural and ordinary meaning of the words, read in their context: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 304-305, 319-321; Momcilovic v The Queen at [16], [40], [56]; Australian Leisure and Hospitality Group v Director of Liquor Licensing [2012] WASC 463 at [22].
The plaintiff relied on the Oxford English Dictionary definition of “the open air” as the ordinary definition of the words. That definition is “[f]ree or unenclosed space outdoors, usually exposed to the weather”. It was submitted that this definition is consistent with the preceding term “access to”, which the plaintiff submitted conveys entry to a particular area. It was submitted it was also consistent with the preceding definite term “the”: “the open air”, which connotes a place outdoors.
Nevertheless, it cannot be lost sight of that the context in this case is the fact that any access to the open air must occur within the AMC grounds, by virtue of being imprisoned: Castles v Secretary, Department of Justice at [100] and [112].
Section 45 of the Corrections Management Act is derived from r 23(1) of the Mandela Rules, as referenced in the Explanatory Statement to the Corrections Management Bill. Rule 23(1) of the Mandela Rules provides that “[e]very prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits”. It was submitted that the words “outdoor” and “if the weather permits” are consistent with the ordinary meaning advanced by the plaintiff.
A space that gives a detainee the impression of being outdoors in that it does not give the impression of being indoors, will be a space that constitutes being in “the open air”. In my view, the impression of being outdoors is realised through the provision of a spacious area with free flow of fresh or open air, ample natural light, a clear view of the sky, exposure to the natural elements and preferably, a view of vegetation.
In addition to the Mandela Rules, the Explanatory Statement to the Corrections Management Bill further notes that the standards of section 12 of the Corrections Management Act are relevantly derived from the handbook A Human Rights Approach to Prison Management. In relation to “exercise in the open air”, the handbook states:

The defendant accepted that s 45 requires it to provide detainees with a reasonable space within which to physically exert themselves. It was noted that what is reasonable will depend, in part, on the number of detainees required to use the space at any one time. The defendant referred to r 23(1) of the Mandela Rules which states that the practice of “placing large numbers of prisoners into small walled yards…does not satisfy the obligation to give the opportunity to exercise in the open air”.
The defendant rejected the proposition that a requirement to provide exercise equipment can be read into s 45 of the Corrections Management Act, even if regard was had to s 30 of the Human Rights Act. It was submitted that all that is required under s 45 is that the defendant ensure, as far as practicable, that the plaintiff “can exercise” for the prescribed minimum period. In reference to the Human Rights Commissioner’s submission, the defendant submitted the Commissioner failed to have regard to the real risks of providing detainees with access to exercise equipment, as there are safety risks to detainees and staff generally as well as specific risks presented by threats of violence.
It was submitted by the plaintiff that the words “can exercise” require the defendant to provide detainees with an adequate space within which to physically exert themselves. The adequacy of the space will depend on, among other things, the size of the space, the extent of air ventilation and natural light. The plaintiff submitted that the availability of exercise equipment may also be a relevant factor: New Zealand High Court decision of Taunoa v Attorney-General at [119], [121]-[122]; New Zealand Supreme Court decision of Taunoa v Attorney-General at [50]-[51], [193], [210]. The plaintiff ultimately submitted that the concepts of “the open air” and an adequate space to exercise are fixed. It was submitted that either a space is adequate for the purpose of exercise and in the open air or it is not.
In light of the foregoing “can exercise” should be interpreted as meaning “suitable to exercise in”. It was conceded by the Human Rights Commissioner that the rear courtyard could be utilised by a “highly motivated” detainee to exercise using bodyweight alone. Nevertheless, it was ultimately submitted that the rear courtyard is not suitable for or equipped for recreation and exercise in the way envisaged by the international materials. On the evidence, including the view I undertook of the relevant space, I agree. I note that the issue of whether or not exercise equipment is required is not an issue I must determine in this case. The crux of the issue in this case revolves around a suitable space in which to exercise.

The defendant submitted that the phrase “as far as practicable” is not an “exception to or qualification of a fundamental obligation under the Corrections Management Act’. Instead, the defendant submitted it is an inherent qualification that defines the scope of the obligation. It was submitted that the plaintiff had misstated the test and the onus, as well as the position of the defendant. The defendant acknowledged that the rear courtyard does not provide the same degree of access to “open air” and room for exercise as the general exercise yard. The defendant however submitted that its obligation is to ensure, “as far as practicable”, that detainees have access to the open air and can exercise for the prescribed daily minimum.
The defendant submitted that the plaintiff’s submission that “as far as practicable” does not refer to “routine, operational or policy matters” could not be sustained in the statutory context of corrections management, if the plaintiff intended to implicate matters of safety or security.
In respect of the examples which might render it impractical for a detainee to have access to open air and exercise as provided in the Explanatory Statement to the Corrections Management Bill, the defendant submitted that there was no indication that those examples were intended to be exhaustive: s 132(1) Legislation Act. The defendant submitted that while the examples provided were extreme circumstances, it did not mean that non-extreme circumstances were excluded. It was submitted that what is practicable is to be determined in the context of corrections management, and includes considerations of the security and safety of detainees and staff at the AMC.
I note that the Explanatory Statement to the Corrections Management Bill states the following: The entitlement is not absolute, as there may be practical reasons why the entitlement cannot be implemented every day. For example, a state of emergency, or a natural disaster etc.
The defendant referred to the submission of the Human Rights Commissioner that placed reliance on the decision of CNK v The Queen [2011] VSCA 228; 32 VR 641 (CNK v The Queen) to argue that “as far as practicable” means “as far as it is possible to go” or “to the maximum extent possible”. The defendant noted that in CNK v The Queen, the phrase “as far as practicable” operated in the criminal sentencing of a child and set out what the Court “must, as far as practicable” have regard to in sentencing. At [8] the Victorian Court of Appeal held:

It was submitted that Emerton J’s remarks supported the defendant’s argument that the scope of the words “as far as practicable” in section 45 must be considered with reference to the context of prison management. The defendant submitted that the submission that s 30 of the Human Rights Act requires “as far as practicable” to be interpreted in a way which is compatible with the plaintiff’s human rights would negate the operation of those words, which are self-limiting. It was submitted that s 30 of the Human Rights Act does not require or authorise departure from the ordinary meaning of the words as used in s 45 of the Corrections Management Act.
It is clear that the defendant has an obligation to ensure, “as far as practicable”, that detainees access the open air and can exercise for at least one hour per day. The phrase “as far as practicable” must be construed in that context: Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283. In my view, the phrase provides an exception to or a qualification of a fundamental obligation under the Corrections Management Act: to ensure that detainees are provided with an entitlement which cannot be taken away by disciplinary action and which assumes particular importance to the wellbeing of detainees in segregation or separate confinement.
Something being practicable involves it being capable of being put into practice or feasible: Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 at 268. It was emphasised that the phrase used is “as far as practicable”, as opposed to “if practicable”. The inquiry is therefore not simply what is or is not practicable. The words “as far as” mean that the defendant must ensure the fullest expression of the entitlement that is feasible up to the point at which it becomes impracticable: CNK v The Queen at [8].
This interpretation of the phrase “as far as practicable” is consistent with both the Mandela Rules and the Standard Guidelines for Corrections in Australia, which state that restrictions on prisoners in segregation or separate confinement must be “no more than necessary”.
The Explanatory Statement to the Corrections Management Bill states in relation to cl 45: “the entitlement is not absolute, as there may be practical reasons why the entitlement cannot be implemented every day. For example a state of emergency, or a natural disaster etc”. The examples cited indicate the kind or class of events which the Legislative Assembly intended would be impracticable. That is, exceptional circumstances which are external to the normal operation of the AMC.
It was submitted by the plaintiff that the Explanatory Statement indicated that the phrase “as far as practicable” refers to the frequency at which the entitlement is provided. The plaintiff submitted that it does not serve to read down the meaning of “the open air” or “can exercise”.
The phrase “as far as practicable” explains why open air and exercise may not be provided on a particular day. The phrase, in my view, cannot operate as a method for the defendant not to provide open air or space to exercise, for detainees on an ongoing basis.
The plaintiff ultimately submitted that the phrase “as far as practicable” does not refer to routine, operational or policy matters, which are intrinsic to the operation of a correctional facility.
As referred to earlier at [262], if something is “practicable”, it involves it being put into practice or feasible and that “as far as practicable” means “as far as it is possible to go” or “to the maximum extent possible”: CNK v The Queen at [8]; Owen v Crown House Engineering at 622. It is accepted that security requirements in prisons will affect what is “possible”. The international case law may be used to guide a Court in determining what is expected from the defendant in terms of what is possible or feasible for first world prisons.
In applying s 30 of the Human Rights Act, obstacles that can be relatively efficiently and practicably dealt with should not be placed in the way of affording detainees their entitlement to open air and exercise. Readily resolved practical matters are not insurmountable obstacles.
The fact that a particular area of the AMC has been built in a manner that does not provide a hatch through which a detainee can be handcuffed cannot limit what is considered “possible” because it is possible and necessary to change the built environment. It is practicable to install a door with a hatch.
Further, the fact that providing detainees with their basic entitlements would require an increase in staffing cannot limit what is considered practicable because it is possible, it is feasible and it is necessary to increase staffing if the current staffing level makes it impossible to provide basic entitlements whilst maintaining prison security.
In my view, in using the phrase “as far as practicable”, the Legislative Assembly made provision for unexpected or non-routine events that make providing the entitlement on any particular day impossible, such as a lockdown in the AMC. The examples provided in the Explanatory Statement to the Corrections Management Bill emphasise the unanticipated and non-everyday nature of the type of event that may prevent the provision of the entitlement. What is the proper construction of cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019?
Section 14 of the Corrections Management Act permits the defendant to enact corrections policies to facilitate the effect and efficient management of correctional services. The effect of such a policy is that it becomes a notifiable instrument.
Between 15 February 2011 and 17 June 2019, the 2011 Operating Policy was in place and provided:

In reference to the plaintiff’s submission as to the impression of the rear courtyard as a small, claustrophobic space, the defendant submitted such a submission was problematic. The defendant noted that the plaintiff did not cite authority to rely on an objective test of “impression”, nor was there any evidence that the rear courtyard made the plaintiff feel claustrophobic. The defendant referred to the plaintiff’s submission that the rear courtyard impedes full penetration of the rain and natural light from the sun, in submitting that the evidence did not establish this. The defendant noted that such an inference could not be drawn in circumstances where it was not raining on the day of the inspection, nor was the sun shining on that occasion. Instead, the defendant emphasised the evidence of Mr Tarlinton that “if it’s raining you can get wet. If it’s sunny there’s sun coming in” and highlighted that his evidence in this regard was not challenged.
The defendant rejected the plaintiff’s claim that the rear courtyard is analogous to the exercise yard in Whelan v Governor of Mountjoy Prison. The defendant submitted that it was not relevantly analogous as in Whelan v Governor of Mountjoy Prison, the Court determined that the yard was not in the open air on the basis that the entire area was enclosed, including an impenetrable roof, with only some light and air admitted through the top meshed part of the side walls. The mesh was “well above the head height of individuals using the area’: at [8], and did not afford a view of the sky directly above. The defendant also emphasised that unlike the yard in Whelan v Governor of Mountjoy Prison, the rear courtyard has a window that functions as an observation panel.
The defendant further noted that the in the yard in Whelan v Governor of Mountjoy Prison, there were four lights on the central trusses supporting the steel roof, suggestive of the fact that the area needed illumination at least part of the time. The defendant also noted that while the inspection of the rear courtyard revealed one light on one of the side walls, there was no evidence and no inference should be drawn, that it was necessary to illuminate the rear courtyard during daylight hours.
In Whelan v Governor of Mountjoy Prison at [9] the Court observed: “a person is in the open air when he/she can look up and see the sky and have the sun in his eyes or feel the rain on her face”. The defendant submitted that rear courtyard could be distinguished as it meets all of those requirements, as the evidence of Mr Tarlinton indicated.
The defendant submitted that even if the yards were relevantly analogous, it would not be enough to establish a breach of s 45 of the Corrections Management Act. The defendant noted that in Whelan v Governor of Mountjoy Prison, the relevant legislation contained a proviso of practicality that was referable only to “the weather on the day concerned”: at [2]. The defendant submitted that s 45 is not similarly constrained. It instead requires that the defendant ensure access to open air “as far as practicable”. It was submitted that the absence of that phrase in the provision examined in Whelan v Governor of Mountjoy Prison was considered determinative of how the obligation and the words of the section ought to be construed: at [30].
The defendant further submitted that the reliance of the plaintiff on the text A Human Rights Approach to Prison Management was inapt, as there is no practice in the Management Unit of placing “large numbers of prisoners” into small yards. Instead, the Management Unit permits a single detainee to have individual access to the rear courtyard.
The defendant agreed that the number of people in a space is relevant to the defendant’s obligation under s 45 of the Corrections Management Act with regard to exercise but not to the characterisation of “open air”. The defendant noted that this issue does not arise in the present matter. The defendant referred to the advice referenced in the plaintiff’s submissions that areas “covered with metal mesh obstructing the view of the sky… should be avoided” and submitted that this advice does not address the function or utility of the mesh to ensure the safety of detainees, such as from self-harm.

In referring to the plaintiff’s submission that the rear courtyard is not an adequate space in which a detainee can exercise, the defendant noted that the plaintiff had failed to establish that he cannot physically exert himself in the rear courtyard. Instead, the plaintiff had compared the size of the rear courtyard to other exercise yards. The defendant submitted that the question under s 45 of the Corrections Management Act is referable to whether the plaintiff “can exercise” for at least one hour each day. The defendant noted that the Corrections Management Act does not prescribe the manner of exercise, nor the degree of exertion.
The defendant accepted that there is no exercise equipment in the rear courtyard but submitted that the provision of equipment is not a requirement. The defendant submitted that the plaintiff had not demonstrated there is inadequate air ventilation and natural light in the rear courtyard for the purpose of exercise. The defendant also submitted that the plaintiff had failed to demonstrate a lack of crossflow of air in the rear courtyard on account of the ceiling being made of mesh and noted that this could not be assumed nor inferred from the view of the rear courtyard.
The defendant submitted that the matter of access must be assessed in light of the particular detainee and the reasons for their placement in the Management Unit. While Mr Tarlinton indicated that the general exercise yards had not been used since the 2019 Operating Procedure came into the effect, the defendant submitted this did not demonstrate a “blanket policy” as opposed to a default position. It was submitted that the default position was subject to exceptions, as determined by a corrections officer in the circumstances of the individual detainees. The defendant submitted that this was consistent with the evidence that, from time to time, a detainee might be given access to the general exercise yard if an assessment is conducted and it is deemed safe to do so.
The defendant also referred to the Prisoner Complaints Form dated 20 March 2019, in which the plaintiff made a complaint seeking “humane treatment” and the response given in the section entitled “outcome of complaint/ action taken” was: “…exercise area currently is the rear courtyard at present, large exercise yard can be discussed in the next review in 7 days”. The defendant also referred to the plaintiff’s case note dated 27 March 2019, which indicated that: “CO – Detainee asked about time out in the external yard but was advised that [this] would [be] discussed at his review date”.
Reference was made to the evidence of Mr Tarlinton that the rear courtyard was an additional means of access to the entitlement under s 45 of Corrections Management Act. The defendant stated that while Mr Tarlinton gave evidence that there is no written risk assessment for access to the general exercise yard, he had clarified that the risk assessment undertaken assesses whether someone is safe to go into a general exercise yard.

The defendant noted it was not its case that the plaintiff was precluded from accessing the general exercise yard because of the staffing levels in the Management Unit. It was submitted that the issue of staffing levels belied the complexity of the matter. The defendant noted that when Mr Tarlinton accepted that detainees could be taken outside if there was staffing resources to give 14 detainees that much exercise, the context of the question was that Mr Tarlinton had to assume the “best case scenario” in that the detainees did not pose a threat to themselves or to AMC staff. The defendant also emphasised that Mr Tarlinton’s evidence was premised on the assumption that the detainees would be compliant.
The defendant submitted that the plaintiff’s submission did not account for the other risks faced by the Management Unit staff. For example, if a detainee was taken to the general exercise yard and refused to return to their cell, the presence of additional staff in the Management Unit would not obviate the need to negotiate a peaceable outcome and referred to Mr Tarlinton’s evidence on this aspect. The defendant noted that during such a time, the Management Unit staff would not be able to facilitate access to the general exercise yard for any other detainee until the non-compliant detainee had been removed.
It was emphasised in respect of Mr Tarlinton’s evidence, that this would present a greater risk than containment in the rear courtyard on account of a detainee being at heights and falling down. The defendant submitted that containment in the courtyard reduces the risk to the detainee and officers. It was underlined that the risk to the detainee and to staff, whether it be rare or otherwise, cannot be ignored.
The defendant submitted that the plaintiff’s reliance on the rear courtyard door also having a ligature point to undermine the default use of the rear courtyard ignored the evidence of the greater risk of self-harm presented by the general exercise yard. The defendant further submitted that the evidence did not merely go to the existence of ligature points, but also to the potential for intentional or accidental harm arising form the general exercise yard.
It was also submitted that the plaintiff’s submission that detainees at immediate risk of self-harm would be removed from the Management Unit ignored the possibility of the risk presented by detainees who are not assessed as presenting an immediate risk of self-harm. The defendant submitted that this did not mean that the subjective risk presented by detainees not at immediate risk who instead experience some suicidal ideation or feelings of hopelessness, and the objective risk presented by the wider steel bars, and the assailable height of the walls in the general exercise yard can or should be ignored. It was submitted that this was evident in the case of the plaintiff, who was placed under segregation from 20 – 29 April 2019, after having indicated that he was going to attempt suicide. It was noted that after having been referred for assessment at the Crisis Support Unit, the plaintiff was returned to the Management Unit.
The defendant noted that the plaintiff’s submission that detainees who were not at risk of self-harm were still not permitted to access the general exercise yard was a generalised submission without reference to a specific detainee and as such, was unsupported by evidence. The defendant submitted that this submission also ignored the other reasons detainees were not granted access to the general exercise yard.
In respect of the plaintiff’s submission that Mr Tarlinton accepted that the risk of self-harm was not relevant to the defendant’s assessment of whether a detainee could use the general exercise yard, the defendant submitted that this was a misrepresentation of Mr Tarlinton’s evidence. It was noted that the question put to Mr Tarlinton was premised on a scenario in which a detainee at immediate risk of self-harm is assessed and then moved to the Crisis Support Unit and then ultimately removed from the Management Unit. It was in that context that Mr Tarlinton agreed with the proposition that the risk of self-harm in the general exercise yard would not be relevant to an assessment whether the detainee is granted access to the general exercise yard.
The defendant referred to the evidence of Mr Kelly and Mr Tarlinton where they had stated that there was a need for Management Unit detainees to be handcuffed and that was for the protection of staff and other detainees. It was emphasised that the evidence revealed that detainees in the Management Unit are also controlled by at least two staff members whenever they are in their cell. It was submitted that the risks posed by the necessity for containment in the general exercise yard are alleviated, but not answered, by the installation of a door with a hatch. The defendant further referred to Mr Tarlinton’s evidence as to why the policy of permitting detainees to access the general exercise yard without handcuffs between 2012 and 2017 was changed.
It was submitted that the risk of harm to detainees or officers while “hypothetical” is nonetheless real in circumstances where the defendant’s witnesses had identified past incidents in which detainees have been non-compliant or violent resulting in property damage and threatening to other detainees. It was submitted that the absence of evidence of physical harm does not negate the risk of such harm, nor should the reasons for that absence be the subject of speculation.
The defendant further submitted that by implication of the “same procedure” of extraction occurs in relation to the general exercise yard and the rear courtyard, it did not mean that the risk of extraction to the detainee and the officers is the same across both forms of yard. Moreover, it was submitted that the fact that such extraction is “rare” does not mean that the risk of non-compliance is similarly so. Even if it was, it does not deny the necessity of addressing that risk.
The defendant accepted that the plaintiff was generally polite to AMC staff, however, it was emphasised that Mr Tarlinton’s evidence was that the plaintiff presented a risk given his history of assaulting other detainees. Mr Tarlinton stated that he did not personally “feel that risk” but did indicate that there is a risk wherein inmates have low impulse control and may “snap” when they get upset. Therefore, Mr Tarlinton stated that the Management Unit is conducted in its current method “because [he] want[s] [his] officers to go home at night safely, we don’t do anything that puts officers more at risk than what we need to”.
It was submitted that the plaintiff’s contention that no individualised risk assessment was performed for the purposes of s 45 of the Corrections Management Act, or when the detainee is placed in the Management Unit is not an accurate representation of the evidence.
The defendant noted that Mr Tarlinton indicated that there was no specific risk assessment in relation to the plaintiff but there would have been a separate confinement order. Those separate confinement orders, as well as the segregation orders in respect of the plaintiff were also tendered in evidence. The defendant submitted that those various orders indicate the reasons for the placement in the Management Unit, and by virtue of the severity of the disciplinary breach, the period of time for which the plaintiff is to remain in separate confinement, or in segregation to maintain the safety and security of the AMC.
It was submitted that the risk presented by the plaintiff to the safety of other detainees and to the security and good order of the AMC is assessed by virtue of those orders, and reflected in the time spent in separate confinement, being three, seven or 28 days. The defendant noted that the risk was assessed by Mr Rust in his affidavit but acknowledged that Mr Tarlinton did not adopt that paragraph because he himself did not make those orders. However, Mr Tarlinton did confirm a process in which he would review the directions for segregation and separate confinement. That review included consideration of the detainee’s behaviour, the circumstances of their placement in the Management Unit, and their security classification to assess the risk they posed.
The defendant submitted that the above referenced assessment process is supported by Mr Tarlinton’s oral evidence that there was no written risk assessment for access to the general exercise yard, but that it was “something the officers would decide, in collaboration with their supervisor”. The defendant also referred to Mr Tarlinton’s evidence that the assessment is not focused on access to fresh air and exercise, but is around assessing whether someone is safe to go into the yard. It was submitted that this consideration informs the obligation in s 45 of the Corrections Management Act, to ensure access “as far as practicable”. The defendant stated that it could not seriously be suggested that access to any area of the Management Unit should be afforded, if it is not considered safe to do so.
It was noted that s 45(1) of the Corrections Management Act does not dictate the frequency or manner of the assessment of practicability. It was submitted that such an assessment was undertaken in relation to the plaintiff at the point of placement in the Management Unit, and subsequently on review. The defendant emphasised that the plaintiff was placed in the Management Unit for 63 out of 337 days between 14 October 2018 and 16 September 2019, as a consequence of actual and threatened violent conduct. The plaintiff admitted that he had assaulted several people whilst in custody; that he conducted himself in the Management Unit in a way which could be perceived as violent or aggressive; and he accepted that he posed a security risk in light of the assaults he had perpetrated or threatened to perpetrate. The defendant further referred to the evidence that the officers responsible for managing detainees in the Management Unit did inform themselves of the reasons for the plaintiff’s placement in the Management Unit.
The defendant ultimately submitted that a declaration should not be made that access to the rear courtyard does not comply with s 45 of the Corrections Management Act. It was submitted that it could not be said that there is no circumstance in which access to the rear courtyard complies with s 45 of the Corrections Management Act. On the contrary, it was submitted in the plaintiff’s circumstances, access to the rear courtyard met the defendant’s statutory obligation.

The plaintiff correctly accepted that the general exercise yard would comply with s 45 of the Corrections Management Act. It was submitted that the defendant has not ensured access “as far as practicable” on a fundamental level – the defendant permits access only to rear courtyard and not to the general exercise yard or another outdoor area as a matter of policy, as set out in the evidence of the AMC staff. It was noted that it was not the case that the rear courtyard is only used on days when it is impracticable to use the general exercise yard or another outdoor area.
The plaintiff referred to the three reasons of the defendant as to why it was not practicable to use the general exercise yard as the default option. It was submitted that those reasons merely attempted to explain why the defendant provided less open air and less space to exercise to the plaintiff, not why the defendant could not provide access to the open air and exercise on any particular day. Therefore it was submitted that those reasons did not justify the failure of the defendant to comply with s 45 of the Corrections Management Act, nor did they hold up to scrutiny following the evidence at the hearing. It is important that I examine those reasons at this juncture.
The first reason is the staffing levels in the AMC. The plaintiff referred to the evidence of Mr Tarlinton that due to staffing levels, it is not possible for AMC staff to provide supervised access to a detainee in the general exercise yard. Emphasis was placed on the concession Mr Tarlinton made in cross-examination that AMC staff could hypothetically take detainees on a walk outside in handcuffs if staffing levels allowed. In my view, staffing levels cannot be a reason to deny detainees’ minimum entitlements: New Zealand Supreme Court decision of Taunoa v Attorney-General at [194].
Second, the ligature points in the general exercise yard. The plaintiff correctly submitted that this point was undermined by the evidence. Mr Tarlinton gave evidence that the rear courtyard also had a ligature point in the form of the open door, yet it was still used as the default option. It is also relevant to emphasise Mr Tarlinton’s evidence that if a detainee was at an acute risk, they would be removed from the Management Unit. Notwithstanding this policy, detainees who were not at risk of self-harm were still not permitted access to the general exercise yard. The policy was to instead use the rear courtyard regardless of a detainee’s risk of self-harm.
The third reason was that access to the general exercise yard presents a security risk to correctional officers. The plaintiff noted that this reason was twofold. The first element of this reason was the defendant’s policy to mandate use of handcuffs for all Management Unit detainees when they leave the cell and the fact that the door to the general exercise yard did not have a hatch. It is important that I highlight in this regard that Mr Tarlinton accepted that it would be possible to replace the door with a model with a hatch.
The second element of the third reason concerned the size and structure of the general exercise yard. Counsel for the defendant had stated in opening that “what one has by way of the general exercise yard is greater space and, therefore, greater difficulty of containment”. It was submitted that the defendant’s proposition was directly contrary to s 45(1)(b) of the Corrections Management Act which requires the defendant to provide an adequate space in which detainees can exercise. In my view, to accept the defendant’s reasoning would be to undermine s 45(1)(b).
In respect of Mr Tarlinton’s evidence as to the danger to detainees and officers posed by non-compliant detainees climbing the general exercise yard walls and refusing to come down, it was submitted that the Court did not receive evidence of harm to detainees or officers. The plaintiff correctly submitted that on the available evidence, the risk was merely hypothetical. In referring to Mr Tarlinton’s evidence that a non-compliant detainee in the general exercise yard would require officers to negotiate with the detainee for an extended period and enter in PPE, the plaintiff emphasised that Mr Tarlinton also gave evidence that this procedure is adopted when a non-compliant detainee refuses to close the rear courtyard door. Mr Tarlinton had also stated that the sending in of officers in PPE to extract a non-compliant detainee in the general exercise yard had been a “rare occurrence”. It was submitted that a “rare occurrence” extraction, with no evidence of actual harm being suffered by correctional officers, could not discharge the defendant’s onus of proof. It does not, in my view, justify the defendant’s policy of not allowing any detainees to use the general exercise yard. The observations of Young J in the New Zealand High Court decision of Taunoa v Attorney-General at [277] are apposite here: “unlawful and difficult behaviour by prisoners can never justify unlawful conduct by their jailers”.
It was emphasised that the plaintiff’s entitlement under s 45 had not been temporarily limited due to state of emergency, natural disaster of other such extreme situation. Instead, it had been permanently denied as a matter of facility. For that assumption to justify not providing detainees with open air and exercise defeats the very purpose of the minimum entitlement contained in s 45. In my view, This minimum entitlement must be afforded to detainees in segregation and separate confinement. For the 63 days the plaintiff spent in the Management Unit, the defendant did not ensure that the plaintiff had his entitled access to the open air and exercise as far as practicable. In doing so, I find that the defendant has acted contrary to s 45 of the Corrections Management Act.
The Human Rights Commissioner submitted, and I agree on the evidence, that the rear courtyard is in reality, another small enclosed room like the Management Unit cell itself. The following are relevant factors: the dimensions of the cell; the fact that it is comprised of four solid block concrete walls and covered by a roof made of perforated metal sheeting. In my view, the rear courtyard is a fully enclosed space with a metal mesh roof, which does not provide access to open air. The rear courtyard does not meet the open air and exercise requirements established by the international jurisprudence.
The plaintiff ultimately sought a declaration that access to the rear courtyard does not comply with s 45 of the Corrections Management Act in respect of this issue. As noted earlier, I made that declaration.

By reason of the matters determined under the first two issues, cl 4.3 of the 2019 Operating Procedure is invalid. Therefore, cl 4.3 is inconsistent with s 45 of the Corrections Management Act. Clause 4.3 was beyond the defendant’s power conferred under s 14(1) of the Corrections Management Act and for that reason, cl 4.3 is invalid.
The plaintiff referred to the defendant’s position that cl 4.3 sets a minimum standard of access which allows for circumstances which exceed that standard. The plaintiff correctly submitted that this was what the 2011 Operating Policy provided. The rear courtyard is not compliant with s 45 of the Corrections Management Act, it therefore does not “count” as open air and exercise as referenced in cl 4.3. In my view, cl 4.3 is inconsistent with s 45 of the Corrections Management Act.
Clause 4.3 of the 2019 Operating Procedure attempts to “deem” compliance with the requirements of the right to humane treatment in s 19(1) of the Human Rights Act and is incompatible with that right. Clause 4.3 is also inconsistent with the rights protective purposes of the Corrections Management Act. The Human Rights Commissioner submitted that s 14(1) of the Corrections Management Act only authorises the making of policies and operating procedures that are “consistent with” the Corrections Management Act. In my view, cl 4.3 is therefore not authorised by s 14(1) of the Corrections Management Act and is invalid.
The Human Rights Commissioner submitted to the extent that cl 4.3 is inconsistent with s 45, or ss 7, 8, 9 and 12 of the Corrections Management Act, it is beyond power for that reason also. I agree. Clause 4.3 attempts to “deem” compliance with the open air and exercise requirements using a means that does not in fact provide open air and exercise. It is inconsistent with s 45 of the Corrections Management Act applying s 30 of the Human Rights Act, as well as being inconsistent with ss 7, 8, 9 and 12 of the Corrections Management Act.
The Court therefore made a declaration that cl 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with the Corrections Management Act.

In Hakimi v Legal Aid, Refshauge J raised, but did not resolve, the question of whether justifiable limits permitted in s 28 of the Human Rights Act are able to be relied on in the absence of a law authorising the limit: at [92]. The Victorian jurisprudence with respect to the equivalent of s 28 of the Human Rights Act makes clear that in order to constitute a reasonable limit under that section, the limit must be imposed “under law”. The Human Rights Commissioner submitted that the phrase “set by laws” used in s 28 of the Human Rights Act makes it even clearer than the Victorian Charter provision, s 7(2), that the reasonable limit must be authorised by law in order to be considered a reasonable limit.
In Kracke v Mental Health Review Board [2009] VCAT 646; 29 VAR 1 (Kracke v Mental Health Review Board) the issue of the lawfulness of any limits under s 7(2) of the Victorian Charter was considered by Bell J. His Honour concluded at [162] that the phrase “under law” confined the types of limitation that were permitted under that section, imposing a “legality requirement”. Bell J also confirmed that at [165] that limitations can only be imposed under law, and that the relevant law must possess certain attributes. These attributes were summarised by reference to Olsson v Sweden (No 1) (European Court of Human Rights, Application No 10465/83, 24 March 1988), where the European Court of Human Rights held at [61] that the three requirements that were part of being “in accordance with law” under art 8(1) of the European Convention on Human Rights were: (a) precision and foreseeability (which did not mean excessive rigidity); (b) protection against arbitrariness, consistent with the rule of law; and (c) reasonable indication of the scope of any discretion, having regard to its legitimate aims.
Further, in Kracke v Mental Health Review Board, Bell J observed that the legality requirement in the Victorian Charter reasonable limits provision is an “essential component of fundamental importance”. In the context of the European Convention on Human Rights legality requirement, Lord Bingham observed in R (Gillan) v Commissioner of Police for the Metropolis [2006] 2 WLR 537 at [34]:

The obligation to “act compatibly” under s 40(1)(a) of the Human Rights Act was raised in Director of Public Prosecutions (ACT) v Close [2015] ACTSC 10; 293 FLR 133. In considering the obligation to act compatibly, Burns J first considered at [52]-[68] whether a forfeiture order interfered with the right to not have one’s home interfered with unlawfully or arbitrarily in s 12 of the Human Rights Act. Burns J then considered whether any limitation was demonstrably justified in a free and democratic society, applying the reasonable limits test in s 28 of the Human Rights Act. Burns J ultimately concluded at [69] that the “actions of the DPP have not breached the human rights of the defendants and that s 40B of the Human Rights Act [is] not engaged”.
The obligation to act compatibly was also considered in Director of Public Prosecutions (ACT) v Nikro [2017] ACTSC 15; 265 A Crim R 158 (DPP v Nikro), Burns J held at [33] that the DPP’s action in initiating confiscation proceedings was “not the operative cause of any confiscation order, and as such cannot be the cause of any breach of the defendant’s human rights under s 24 of the Human Rights Act, even assuming that the making of any such order constituted a breach of those rights”.
This obligation has also been considered in Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70. Burns J acknowledged at [35] that the Human Rights Act gave the Court powers to provide relief where public authorities act contrary to the Human Rights Act “and it should not hesitate to do so in appropriate circumstances”. Burns J noted that it was for the applicant or plaintiff to establish that the respondent or defendant was acting in such a way as to breach his rights: at [41]. However, in Re Application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 at [241] Penfold J previously confirmed that once a limitation has been shown to have occurred, the burden of proof shifts to the party seeking to justify the limitation of the right.
The decisions of the Victorian courts are generally consistent with the ACT jurisprudence in assessing whether an act is “incompatible” with a human right by reference to the reasonable limits provision in s 7(2) of the Victorian Charter: Baker v Director of Public Prosecutions (Vic) [2017] VSCA 58; 270 A Crim R 318 at [57]; Certain Children (No 2) at [199] and [206]; De Bruyn v Victorian Institute of Forensic Mental Health at [100]; DPP v Kaba at [468]; Kracke v Mental Health Review Board at [99]. The Victorian jurisprudence has recognised that it is for a plaintiff to show that their rights have been limited by the action of a public authority. The following additional guidance is provided about the practical demands of this burden:

When the plaintiff was advised that he would be returning to the Management Unit towards the end of that period, on 20 April 2019, he attempted suicide. I note it was stated in submissions by counsel for the plaintiff that had the plaintiff been provided with access to the general exercise yard, he would not have brought these proceedings.
The defendant’s practice and the decision to enact cl 4.3 of the 2019 Operating Procedure are unlawful. The defendant has not taken positive measures in accordance with s 19(1) of the Human Rights Act.
Alternatively, the plaintiff submitted that the defendant’s practice also treated the plaintiff in a cruel, inhuman and degrading way, contrary to s 10(1)(b) of the Human Rights Act. The plaintiff relied on his outline of the jurisprudence on this right as set out in issue one.
Section 10(1)(b) of the Human Rights Act is put in the alternate to s 19(1) by the plaintiff. Having found for the plaintiff under s 19(1), it is not necessary to proceed to consider s 10(1)(b).
Alternatively, the plaintiff also submitted that the defendant’s practice encroached upon the plaintiff’s human rights pursuant to s 18(1) and (2) of the Human Rights Act. The plaintiff relied upon its outline of the jurisprudence pertaining to this right as set out in issue one.
Section 18(1) and (2) is put by the plaintiff in the alternate to s 19(1) of the Human Rights Act. Again, having found for the plaintiff under s 19(1), it is not necessary and therefore I do not propose to proceed to consider s 18(1) and (2).
The defendant underlined Refshauge J’s observation in Hakimi v Legal Aid at [52] that “not all questions will have to be answered in all questions”. The defendant submitted that because it maintained that it did not limit the plaintiff’s rights under ss 19(1), 10(1)(b) or 18(1) or (2) of the Human Rights Act, pursuant to s 28 of the Human Rights Act or otherwise, and accepting that the defendant is a public authority for the purposes of s 40B of the Human Rights Act, the only questions which required determination from Hakimi v Legal Aid were (a), (b) and (c), set out above at [384].
It was submitted that insofar as s 18(1) and (2) are concerned with the deprivation of liberty, and not the conditions of detention, the decision not to provide the plaintiff with access to the general exercise yards does not engage these rights.
I have already indicated at [232] that s 19(1) of the Human Rights Act is the relevant human right in this context, not ss 10(1)(b) nor 18(1) or (2).
The defendant rejected the proposition that it had acted in a way that was incompatible with the plaintiff’s human rights or that it had imposed extraneous limits on the plaintiff’s rights. It was submitted that even if the Court found that access to the rear courtyard was inconsistent with s 45 of the Corrections Management Act, it would not follow that the defendant had acted incompatibly with the plaintiff’s human rights, particularly in respect of s 19(1) of the Human Rights Act. In answering the questions above posed by the ACT and Victorian authorities, I find that the defendant has acted incompatibly with s 19(1).
It was submitted that the plaintiff’s ability to access the rear courtyard instead of the general exercise yard did not cause the plaintiff to experience any hardship or constraint beyond the hardship or constraint caused by the deprivation of his liberty, having regard to the fact that a “necessary consequence” of his deprivation of liberty was that his rights were inevitably qualified or attenuated: Castles v Secretary, Department of Justice at [108] and [111]. I do not accept this submission. Access to the rear courtyard instead of the general exercise yard was not a necessary consequence of deprivation of liberty.
The defendant noted that while the obligation in s 19(1) of the Human Rights Act requires positive treatment of the plaintiff with humanity, it does not equate to an obligation to implement “positive measures”. It was submitted that the plaintiff had not provided evidence of the impact of being in the Management Unit beyond the ordinary incidents of detention, save for the presentation of suicide ideation in April 2019. The defendant referred to the evidence that the plaintiff’s suicide ideation had been treated in the Crisis Support unit. The defendant referred to the evidence of Mr Tarlinton, who stated that in considering the plaintiff’s mental health state in around January 2019, he formed the view that keeping the plaintiff in segregation did not outweigh the risk of deterioration of the plaintiff’s mental health, and decided to return the plaintiff to his regular AMC accommodation. I do not accept the submission that the plaintiff has not provided evidence.
It was submitted by the defendant that the plaintiff’s criticism of the defendant’s policy of requiring detainees to ask permission to access the rear courtyard was without substance. The defendant submitted that there is nothing inherently demeaning about asking for the door to the rear courtyard to be opened. It was submitted that the plaintiff ignored the obvious benefit of a practice that permits the detainee more than the minimum entitlement of access for one hour per day. The defendant further submitted that the plaintiff overlooked the evidence of Mr Tarlinton regarding the personal preference of some detainees who at times did not wish to have access to the rear courtyard. Emphasis was placed on the evidence of Mr Tarlinton that access to the rear courtyard was not denied as a matter of punishment. The defendant submitted that the evidence did not demonstrate that the plaintiff was treated other than as a human being, as per s 19(1) of the Human Rights Act. I note as a general observation that it is not necessarily demeaning to ask permission.
The defendant further rejected the description of the adoption of cl 4.3 as a “blanket policy”. The defendant maintained that the evidence demonstrated that decisions were made to grant or deny access to the general exercise yard based on the circumstances of the individual detainee. The defendant noted that the fact that access was not granted did not deny that consideration was given to the question of access. It was submitted that the plaintiff’s submission did not account for the decisions to grant access to the rear courtyard for more than one hour per day. I note the evidence that access was not granted to the general exercise yard.
The defendant submitted that cl 4.3 of the 2019 Operating Procedure is an expression of a detainee’s entitlement to open air and exercise. It was submitted that there is no reason to suggest that the reference to “fresh air” is a deliberate lowering of the standard” or a “negligent disregard” of the obligation in s 45 of the Corrections Management Act or the plaintiff’s human rights. As I have indicated earlier, there is no forensic utility to the “open air”/ “fresh air” debate within the context of this case. The defendant noted that in addressing the plaintiff’s complaints, Mr Tarlinton indicated his satisfaction that the plaintiff’s minimum entitlements were met at [51] of his affidavit. Self-evidently, Mr Tarlinton’s satisfaction does not answer the relevant question.
In respect of the plaintiff’s submission that the defendant “did not properly consider” the plaintiff’s human rights”, the defendant noted that it was brought to the attention of corrections officers by way of complaints of inhumane treatment. The defendant submitted that the plaintiff’s submission was a complaint as to the outcome of that review or consideration. I do not accept the defendant’s submission that this constitutes proper consideration. Proper consideration is discussed more broadly below at [409].

Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83

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