- Australian prisoners are at significantly greater risk than the general population from COVID-19.
- There has been some suggestion in other common law jurisdictions that habeas corpus could lie to release prisoners where their conditions of incarceration become so intolerable as to make that incarceration illegal.
- While in Australia the High Court has not considered the application of the writ in circumstances of ‘intolerable conditions’, there is some support for its use in such situations.
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 Organization foresees the possibility that ‘every prisoner’ will be contaminated with Covid-19 ‘very quickly’ (Thalia Anthony, ‘Coronavirus is a ticking time bomb for the Australian Prison System’, The Guardian Australia Edition (online), 26 March 2020); Hannah Summers, ‘”Everyone will be contaminated”: prisons face strict coronavirus controls’, The Guardian Australia Edition (online), 24 March 2020).
In NSW, one staff member at Long Bay Prison Hospital has already been diagnosed with the virus (Sarah Thomas, ‘Rate of coronavirus infection slows in NSW as authorities urge public to maintain social distancing’, ABC News (online), 30 March 2020). In Victoria, the ACT and NSW, superior courts are recognising that incarceration in the time of Covid-19 is likely to be more onerous (Re Broes  VSC 128; Brown (aka Davis) v The Queen  VSCA 60; R v Stott (No 2)  ACTSC 62; Rakielbakhour v DPP  NSWSC 323). And recently, NSW became the first government in Australia to enable certain inmates to be released to control the spread of disease inside Australian prisons when it passed the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 No 1. Section 276 of that legislation grants the Commissioner of Corrections a discretionary power to grant parole to certain types of prisoners.
Amongst this evolving landscape, a group of concerned lawyers has been exploring potential remedies for the release of vulnerable prisoners from Australian prisons. This is particularly important for First Nation prison populations. Not only are First Nation populations disproportionately represented in Australian prison populations, they are more likely to suffer from health co-morbidities that may make them more vulnerable to the effects of Covid-19. This article considers the availability of one remedy – the writ of habeas corpus.
The Great Writ
Habeas corpus is a common law prerogative writ issued by a superior court that compels the production of a person before it to determine whether their imprisonment is lawful. The writ has a number of advantages to bringing a civil claim against the State: it tends to take priority over court business and so is faster, there is a presumption in favour of the applicant for the issuing of the writ, and the remedy is not discretionary. If an applicant can show that the incarceration is unlawful, the court must order the release of the prisoner (see generally Mathew Groves, ‘The Use of Habeas Corpus to challenge prison conditions’, (1996) UNSW Law Journal 281). This has led superior courts to consider the questions of policy that arise in attempts to utilise the writ in new contexts. This article considers one such context, namely whether the writ could ever be available to compel the release of a prisoner on the basis that their incarceration becomes illegal as a result of the intolerable conditions under which they are held.
Other common law jurisdictions
The high watermark arose in England in Middleweek v Chief Constable of Merseyside  3 WLR 481 where the Court of Appeal held 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 brief hope was dashed, however, when that proposition was rejected by the House of Lords in R v Deputy Governor of Parkhurst Prison; ex parte Hague ( 1 AC 58) (‘Hague’). That decision addressed policy concerns with the argument which is summarised in the following passage of Lord Bridge’s judgment: ‘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 … 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 … [S]hort 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’ (at 165-166). This position has found some alterations in other common law countries.
In the United States there exists substantial authority for the proposition that intolerable incarceration might found a writ of habeas corpus, however those authorities have been dismissed in Australia for relying upon both a statutory form of the writ (as opposed to the common law’s ‘great writ’) and for relying upon the protections of the Eighth Amendment’s prohibition against cruel and unusual punishment.
In Canada there is substantial authority for a related proposition, namely that when someone is incarcerated they retain a ‘residual liberty’ that can still attract the writ so as 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 at equal or greater threat in the general population.
The position in Australia
This argument appears to have been considered directly only once in Australia, in Prisoners A to XX inclusive v New South Wales (1995) 38 NSWLR 622. A group of prisoners brought an action arguing, inter alia, that their continued imprisonment was made unlawful because of the denial of condoms in the State’s prisons, which they argued increased their risk of contracting HIV and hepatitis and therefore placed their lives at risk. Sheller JA, writing for the Court of Appeal, considered English and American authorities and held they provided no support for the argument that intolerable conditions can make an otherwise lawful incarceration unlawful and that ‘the availability of other remedies makes it unnecessary to do so’ (at 633). An application for special leave to appeal against this decision to the High Court was refused by McHugh J in November 1995.
His Honour’s comments during the hearing of the special leave application note both the availability of other remedies and a concern with the policy implications of the extension of the writ (Transcript of Proceedings, Prisoners A-XX Inclusive v State of New South Wales S113/1995  HCATrans 399).
The High Court has substantively considered a related argument 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. While the majority judgments all rely upon interpretation of the different statutory regimes and, by necessary implication, the difference in nature of incarceration of a citizen by judicial fiat rather than executive detention, McHugh, Gummow and Heydon JJ (writing together as part of the majority) held ‘the conditions in which detention is suffered … do not deny the legality of the immigration detention and so cannot found a defence’ (at ). In coming to that conclusion, the Court also noted the availability of remedies for such conditions in criminal, tort and administrative laws. Both Gleeson CJ and Callinan J noted the above quoted passage from Lord Bridge in Hague’s case. Of course, it must be noted that these remedies are unlikely to provide a basis for the prisoner to be released from custody altogether, even if it is the custody itself that attracts the risk.
Clearly there are difficulties in relying on habeas, but in the author’s view it cannot be said to be impossible. At this stage, there is no High Court decision prohibiting the writ in the circumstances we now face. In Hague’s case, the Lords appeared to accept a different outcome may flow where the conditions of incarceration involved ‘physical injury or an impairment of health’ (at 166), arguably something that arises today for prisoners in Australia where it is not clear whether testing and treatment (or the extent of the same) is available for prisoners. 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 of exposure to a potentially fatal disease. 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 particular prison populations. In those circumstances, should the Government fail to act to protect the lives of prisoners, it is unclear who else will.
Acknowledgment: The conclusions in this article were influenced by discussions and assistance from Felicity Graham of Black Chambers, Jeremy Styles of the Aboriginal Legal Service, and George Newhouse of the National Justice Project and I thank them. Any errors are mine.