Right to humane treatment when deprived of liberty (including in prison)

Section 22 of the Charter is about the humane treatment of people who are deprived of their liberty. People who are “deprived of their liberty” includes people in prison or other types of custody or detention.

Section 22 creates 3 rights:

1. Everyone deprived of liberty must be treated with humanity and respect for their dignity as a human being
2. Anyone who is on remand or detained without charge must be separated from people who have been convicted of an offence (except when reasonably necessary)
3. Anyone who is on remand or detained without charge must be treated in an appropriate way for someone not convicted of an offence

Under section 7(2) of the Charter, Corrections Victoria and their staff are only allowed to limit these rights where it is reasonable and justified.

Whether a limit on section 22 rights is reasonable and justified will depend on the circumstances of each individual case. When it comes to deciding whether the limitation of a right is reasonable and justified, the Charter says all relevant factors should be considered, including:

1. The nature of the right (what the right is);
2. The importance of the reason for limiting the right;
3. The nature and extent of the limitation; and
4. The relationship between the limitation and the reason for limiting the right; and
5. Any other, less restrictive options reasonably available to address the reason.

When Corrections Victoria or their staff make a decision, they must balance Charter rights against their duties in sections 20 and 21 of the Corrections Act 1986 (Vic). Those duties are about:

• Security of the prison
• Safe custody and welfare of people in prison
• Management, security and good order of the prison

The Victorian Supreme Court has said that when considering section 22 rights, the starting point should be that people in prison should not be made to suffer any more hardship or constraint than the hardship and constraint that already comes from being in prison. This idea is found in the cases of:

• Certain Children (by their litigation guardian Sister Marie Brigid Arthur) v Minister for Families and Children & Ors (No 2) (2017) 52 VR 441
• Castles v Secretary to the Department of Justice (2010) 28 VR 141

Use the link on the left of this page to see examples of breaches of section 22 rights.