Detainee's human rights not breached by a failure to provide employment in prison

Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20

The ACT Supreme Court has held that the Director-General did not breach the Corrections Management Act 2007 (ACT) (CM Act) and the Human Rights Act 2004 (ACT) (HR Act) for failing to provide a detainee with employment. It is a question of fact and degree in each case whether detainees' human rights require corrections authorities to provide them with employment opportunities.

Facts

Mr Islam, the plaintiff, is a detainee at the Alexander Maconochie Centre (AMC), which is a prison in the Australian Capital Territory (ACT). He had been detained at the AMC since July 2009 when he was arrested for assault and remanded in custody. He was subsequently found guilty of intentionally inflicting grievous bodily harm and sentenced to nine years' imprisonment with a non-parole period of four years and six months.

The plaintiff had held various jobs during his period of detainment, including as a unit sweeper in the remand cells and as an education assistant when he was housed in cottage accommodation for detainees with minimum security classifications. In December 2013, however, he seriously assaulted another detainee, resulting in termination of his employment and him being transferred to the Management Unit for detainees who require more intensive management.

During 2014, the plaintiff made numerous requests for paid employment in the Management Unit, but was informed that there were no available employment opportunities at the time. The plaintiff was informed that he would have better prospects of obtaining employment if he moved from the Management Unit but he was unwilling to share a unit with other detainees.

In November 2014, the plaintiff filed proceedings complaining about the failure of the Director-General of the Department of Justice and Community Safety (the defendant) to provide him with employment. He contended that the defendant's approach involved unjustified discrimination given that arrangements had been made to enable other detainees in the Management Unit to work. The plaintiff applied for an order requiring the defendant to provide him with employment, on the basis of breaches of the CM Act, the Corrections Management (Prisoner Employment) Policy 2009 (NI2009-149) (Employment Policy) and the HR Act.

Decision

Master Mossop of the ACT Supreme Court dismissed the plaintiff's application because he was not satisfied that the defendant was in breach of any of the grounds alleged.

Corrections Management Act

The Court rejected the plaintiff's argument that the defendant was in breach of the following sections of the CM Act:

• section 7(d) which provides that an object of the CM Act is to promote the rehabilitation of offenders and their reintegration into society;
• section 9(a) which provides that functions under the CM Act must be exercised to respect and protect detainees’ human rights; and
• section 9(f) which provides that functions under the CM Act must be exercised to promote, as far as practicable, detainees’ rehabilitation and reintegration into society. 

The Court held that section 7(d) is a statement of the objects of the CM Act and does not, of itself, create a rule which gives the plaintiff a cause of action if breached. 

Section 9 does provide a basis for an injunction if a function under the CM Act is being exercised inconsistently with the section. However, the Court refused to grant an injunction in this case because the plaintiff could not identify a particular duty which the defendant was failing to perform in the manner required by section 9.

In relation to section 9(a), the Court held that the direction to "respect" and "protect" the detainee's human rights is intended to ensure that the detainee's rights are not violated by corrections authorities and are protected from violation by other detainees. The Court interpreted the term "human rights" in section 9(a) as a reference to the human rights protected by the HR Act and held that the section does not qualify statutory powers under the CM Act, but rather "is a command to respect or protect a detainee's human rights to the extent that they are not subject to statutory qualification under the CM Act" (at [75]). Ultimately, the Court did not need to express a final view as to precisely how section 9(a) operates in practice because the plaintiff was unable to show a breach of the underlying human right in section 19(1) of the HR Act (see below).

In relation to section 9(f), the Court held that the concepts of "rehabilitation" and "reintegration" cannot be precisely defined and indicated that it may be difficult to determine whether there is compliance. The Court emphasised that the extent to which "rehabilitation" and "reintegration" must be pursued is qualified by the word "practicable", which necessitates consideration of the resources available and the competing demands upon them. In the plaintiff's case, the Court was not satisfied that the failure of the defendant to offer the plaintiff employment meant that the plaintiff's rehabilitation and reintegration into society were not being promoted, because the Court was satisfied that the defendant was encouraging the plaintiff to take part in other programs to aid his rehabilitation. 

Employment Policy

The Court held that a mandatory order was not available for the defendant's alleged non-compliance with the Employment Policy made under the CM Act, because there is no indication in the CM Act that policies made under it create binding statutory obligations.

Human Rights Act

The Court also rejected the plaintiff's argument that the defendant was in breach of section 19(1) of the HR Act, which provides that "anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person".

The Court endorsed the approach of Mansfield J in Eastman v Chief Executive of the Department of Justice and Community Safety [2011] ACTSC 33, which focused on the text of section 19 and emphasised that whether the defendant has complied "is a question of fact and degree to be assessed in all the circumstances" (at [71]). The Court elaborated on this, clarifying that section 19 does not provide detainees with a freestanding right to employment, but rather "a more general entitlement to humane treatment" (at [87]).

In assessing whether the plaintiff's entitlement to humane treatment had been infringed, the Court took into account a range of factual matters including: the plaintiff's behaviour and history of violence (before and during his incarceration), the plaintiff's capacity to contribute to educational activities at the AMC, the plaintiff's current accommodation in the Management Unit where employment opportunities are limited, and the plaintiff's refusal to undergo assessment for a program for violent offenders. The Court also acknowledged the context of employment in the AMC, including the demands on the staff and resources. Given the emphasis on the factual context it could not be said that the plaintiff was the subject of unfair discrimination merely because other employees within the Management Unit had been given opportunities for employment.

Commentary

Rehabilitation is an important component of imprisonment. This case is useful for its interpretation of the obligations on corrections authorities to provide detainees with employment as part of that rehabilitative purpose. The Court emphasised the importance of closely examining the circumstances of each case in determining whether a corrections authority is infringing a detainee’s human rights if it does not provide them with opportunities for employment.

Although, in this case, the Court held that there was no breach of the plaintiff’s human rights, the decision suggests that there are circumstances in which it may be a breach of a detainee’s human rights if they are not provided with employment opportunities. For example, this may be the case where a detainee is expected to remain in a unit for a long period of time and where there are limited other opportunities (such as educational and other programs) to aid their rehabilitation, although all other factors would need to be considered. It will always be a question of fact and degree because there is no freestanding right to employment.

The full decision can be found here: http://www.austlii.edu.au/au/cases/act/ACTSC/2015/20.html

Amy Biggins is a law graduate at Allens.