by Craig Longman
There is an imminent human disaster threatening Australian prisons, and the disproportionately high number of First Nation prisoners who are incarcerated within. Across the world, Governments are recognising the risk to prisoners from the Covid-19 virus. Commentators have noted the ‘notorious’ status of prisons as incubators for infections, and the World Health Organisation foresees the possibility that ‘every prisoner’ will be contaminated with Covid-19 ‘very quickly’. In NSW, there has already been one staff member at Long Bay Prison Hospital has already been diagnosed with the virus. Realistically, the presence of Covid-19 within our gaols is almost certainly a certainty and on at least one occasion to date a Court has heard from one Prisoner that he was told a fellow inmate had died as a result of covid-19 complications.
It is clear the risk is real, as evidenced by the mass release of prisoners from prisons around the world: Afghanistan’s release of 10,0000 prisoners, Iran’s temporary release of 54,000 prisoners, The first case of Covid-19 was reported in a prison in the United Kingdom on 18 March. The next day it was revealed that 22 prisoners showed signs of Covid-19. In the United Kingdom, 300 people were released from Immigration detention. On 26 March, the United Kingdom lost its first prisoner to Covid-19.
The legal structures are now responding. In Victoria, the ACT and NSW Superior Courts are recognising that incarceration in the time of Covid-19 is likely to be more onerous. And last week, New South Wales became the first government in Australia to pass legislation enabling certain inmates to be released to control the spread of disease inside Australian prisons. That legislation grants the Commissioner of Corrections with a discretionary power to released certain types of prisoners, with the usual tranches of serious offending such as murder and sexual violence offences excluded. But what if you are not within the proscribed group? Recently, a group of lawyers concerned about the risk to prisoner’s health from the current crisis have been exploring potential remedies for the release of vulnerable prisoners from Australian prisons. Releases like this are particularly important for First Nation prison populations. Not only are First Nation populations disproportionally represented in Australian prison populations, but they are more likely to suffer from health co-morbidities that may make them more vulnerable to the effects of Covid-19.
The Great Writ
Habeas Corpus is the most common and well known of the Habeas writs; common law prerogative writs that are issued by a Superior Court to demand the production of a person before it so that the Court might determine whether their imprisonment is lawful. The writ has a number of advantages to bringing a civil claim against the State. Usually the hearing of the writ takes precedence before other Court business, meaning that it is fast. It also creates a presumption in favour of the Applicant; the Court requires the custodian to establish the incarceration is lawful. Finally, the remedy is not discretionary. If an Applicant can show that the incarceration is unlawful, the Court must order the release of the prisoner. There are no half-measures. However, it has substantial disadvantages too. Firstly, the fact that there are no half-measures has arguably seen the Courts hesitant to expand the scope of the writ. Secondly, traditionally it has not been available as a remedy for prisoners who are incarcerated under a valid court warrant, regardless of the conditions of incarceration, so its scope is limited.
The most pressing question for prisoners today is whether the writ could ever lie to compel the freedom of a prisoner because the conditions of their incarceration were so intolerable that they came to constitute unlawful imprisonment. The high watermark of that argument arose in England in the case of Middleweek v Chief Constable of Merseyside (the Middleweek Case) where the UK Court of Appeal held that there was no absolute rule which precluded a detention which was initially lawful from becoming unlawful by reason of a change in the conditions of the imprisonment. That proposition was rejected however by the House of Lords in R v Deputy Governor of Parkhurst Prison; ex parte Hague (Hague’s Case).
It appears that there is some support for the proposition in the United States, however Australian courts have characterised those judgments as unhelpful in the Australian context because they dealt firstly with statutory rather than the common law writ, and secondly because they rely on the constitutional protections against ‘cruel and unusual punishment’.
There is substantial support in Canada for the argument that the writ can lie to release a prisoner from particular onerous conditions (for example the release of a prisoner from isolation back into the general population), however those authorities are unlikely to assist prisoners who are equal or greater threat in the general population.
The argument has been considered directly only once in Australia, in Prisoners A to XX inclusive v New South Wales (1994) 75 A Crim R 205. A group of prisoners brought an action in tort arguing the State’s policy not to provide condoms in prison breached its duty of care to the prisoners. At first instance they sought to amend their pleading to seek Habeas as well. Dunford J refused that permission, holding the writ did not run in those circumstances. On appeal, the Prisoners argued that their continued imprisonment was made unlawful because of the denial of condoms which increased their risk of contracting HIV and Hepatitis and therefore placed their lives at risk. Sheller JA, writing for the Court, considered English and American authorities and held they ‘provided no support whatsoever for the intolerable conditions concept as a basis on which a prisoner might seek Habeas to gain their removal from the offending regime’. In rejecting the availability of Habeas, Sheller JA stated:
In the present case it is unnecessary to consider whether a prisoner enjoys a right of “residual liberty” vis-à-vis the State and whether the writ of habeas corpus runs where a person is illegally held in a prison within a prison. The Supreme Court of Canada provides powerful authority in support of that proposition. There is no such compelling authority to support the “intolerable conditions” submission. Le Dain J did not go so far and the question remains open in the United States. The difficulties of the proposition, to which Lord Bridge and Lord Jauncey refer, are indeed formidable and as their Lordships pointed out there are elsewhere remedies by an action for negligence or for administrative review. In Australia authority dictates that this Court cannot go so far. In my opinion the availability of other remedies makes it unnecessary to do so’ (13/15).
An application for special leave to appeal against this decision to the High Court was refused. McHugh J refused leave, noting the availability of other remedies. The Court’s comments demonstrate a concern with the policy implications of the application and note that other remedies are available in administrative and tort law. These policy implications arise in many of the judgments and are summarised in the following passage of Lord Bridge in Hauge’s Case which was cited both in Prisoners and Behrooz (considered below):
I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions ought not to be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful raises formidable difficulties. If the proposition be sound, the corollary must be that when the conditions of detention deteriorate to the point of intolerability, the detainee is entitled immediately to go free. It is impossible, I think, to define with any precision what would amount to intolerable conditions for this purpose. McCullough J understandably and perhaps wisely abstained from any attempt at definition in Ex parte Nahar. The examples given by Ackner LJ of a flooded or gas-filled cell are so extreme that they do not, with respect, offer much guidance as to where the line should be drawn. The law is certainly left in a very unsatisfactory state if the legality or otherwise of detaining a person who in law is and remains liable to detention depends on such an imprecise criterion and may vary from time to time as the conditions of his detention change.
The logical solution to the problem, I believe, is that if the conditions of an otherwise lawful detention are truly intolerable, the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful. I see no real difficulty in saying that the law can provide such a remedy. Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows, or a fortiori, if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty. But short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian’s duty of care for which the law should award damages. For this purpose it is quite unnecessary to attempt any definition of the criterion of intolerability’.
The argument was considered by analogy in a different statutory context in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs  HCA 36. That case involved the prosecution of a refugee who sought to defend a charge of escaping from immigration detention on the basis the conditions were so intolerable as to no longer constitute lawful detention under the relevant statutory scheme. The defence had sought to issue Subpoenas for information relating to the conditions of the incarceration, arguing that the harshness of the conditions went beyond ‘anything that could reasonably be regarded as necessary for migration purposes’ and that therefore the detention was not ‘valid ‘immigration detention’ and escaping from it could not constitute escape from immigration detention’ (at ).
The defence argument was summarised thus by Gleeson CJ:
 It is important to note what is not in issue. In order to establish a defence to the charge against him, it is not sufficient for the appellant to demonstrate, if he can, that conditions at the detention centre were such as to give the inmates a cause of action for damages, or a right to declaratory or injunctive relief, or a claim to some remedy in administrative law. (The potential availability of relief of that kind cannot be brushed aside, conveniently, as a fantasy. The appellant has, at every stage of this litigation, been represented by senior counsel.) The appellant seeks to demonstrate that, by reason of the conditions at the detention centre, he, and presumably all the other inmates, had the right to leave. He seeks to demonstrate that escaping from the detention centre was not prohibited by s 197A.
Whilst the majority judgments all rely upon interpretation of the different statutory regime and, by necessary implication, the difference in nature of incarceration of a citizen by judicial fiat versus executive detention in furtherance of the exercise of a valid statutory power, McHugh, Gummow and Heydon JJ (writing together as part of the majority) noted the indicia in the legislation (and the concessions of the crown), of alternative remedies in criminal, tort and administrative laws and held they provided:
an answer to the primary submission of the appellant respecting the construction of s 197A. While the conditions in which detention is suffered may attract remedies of the nature indicated above, they do not deny the legality of the immigration detention and so cannot found a defence to a charge under s 197A.
In relation to the American cases, these justices stated:
 It is unnecessary further to consider these matters in this appeal. Enough has been said to indicate that the primary question in the United States has been the reach of the constitutional guarantees found in express terms not seen in Australia.
Both Gleeson CJ and Callinan J noted the above quoted passage from Lord Bridge in Hague’s case.
It is clear then that there are difficulties in trying to obtain the writ in these circumstances. However, it cannot be said to be impossible. At this stage, there is no high court decision prohibiting the writ in the circumstances that we now face. Hague’s Case is persuasive, not binding, precedent. Moreover, even where it has been relied upon and arguably adopted by the NSWCCA in the Australian cases, in that case the possibility of the writ running in such circumstances is left open in cases involving ‘physical injury or an impairment of health’. Arguably the mere incarceration of someone in the current climate, absent any established medical testing (and given the recognised limitations in medical care within prison environments) may rise to the level of an ‘impairment of health’. Secondly, it is possible that Australian Courts may be more willing to step in to protect the health of prisoners where it is the mere fact of incarceration that results in an increased risk to exposure to, and the consequences of, a potentially fatal disease. In Prisoners v XX there was generally steps the inmates could take to avoid exposure to the injury. They could avoid sexual acts and, to some extent presumably, try to reduce their exposure to bodily fluids. Certainly, the exposure was less than that suggested in the present case where Covid-19 appears to spread simply through proximity of persons.
Ultimately, it is unclear whether the Courts would be willing to create a unique category in the use of Habeas in Australia to address the evident risk to prison populations. Should the Government fail to act to protect the lives of prisoners, it is unclear who else will. There are of course other civil remedies that are being explored in this vein and we will explore those later in this blog, but for now, the ‘Great Writ’ has yet to show great promise.
Craig D. Longman is Head of Legal Strategies and a Senior Researcher with Jumbunna Institute for Indigenous Education and Research, (Research Unit) at the University of Technology, Sydney.
He is also a Barrister at Black Chambers.