Victorian Supreme Court rules government breached duty of care in COVID-19 prison case

By Jerome Doraisamy|01 May 2020

The Supreme Court of Victoria has found that the state government breached its duty to take reasonable care for the health of people behind bars during the COVID-19 pandemic.

An urgent injunction brought by Fitzroy Legal Service and the Human Rights Law Centre, on behalf of a person in Port Phillip Prison with acute health needs, argued that “people in prison are sitting ducks for COVID-19” and it will only take one case to enter the prison for there to be an outbreak, which could not be stopped even if responsive measures are taken.

It was successfully argued that the Victorian government had, prima facie, breached its duty of care to safeguard the health of imprisoned persons and that it must act in accordance with the state’s Charter of Human Rights.

The case opens the door, HRLC said in a statement, for people at heightened risk of COVID-19 to argue for their release in future.

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Expert evidence was given during the case showing that if coronavirus finds its way into the prison, it will spread quicker than it has done among the general population, as has been the case in other closed environments such as cruise ships, migrant worker’s dormitories and nursing homes.

Further, the court was told that no risk assessment of Port Phillip Prison has taken place in relation to COVID-19.

While the court did not order the release of the client, it did hold that a risk assessment examining the COVID-19-related risks to people in prison be carried out and that any recommendations made as a result of that assessment should be implemented.

Moreover, the state government is being charged with making COVID-19 testing available to imprisoned persons.

Human Rights Law Centre senior lawyer Monique Hurley said that the decision shows that the Victorian government isn’t doing enough to protect imprisoned persons against the global coronavirus pandemic.

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“Everybody deserves to be safe during a pandemic,” she proclaimed.

“But prisons are overcrowded and have substandard hygiene practices at the best of times. Right now, they are a COVID-19 tinderbox. This case is an important win for the rights of people behind bars in Victoria who want what we all want – to be safe.

“Ultimately, the Victorian government should be looking to responsibly release certain groups of people from prison. The evidence is clear – once COVID-19 enters a prison, it will spread like wildfire.”

Fitzroy Legal Service managing lawyer Karen Fletcher added that the state government and private prison operators have a duty to protect imprisoned persons from the global pandemic.

“It is not enough to have elaborate policies on paper, they must be implemented on the ground,” she argued.

“There is an obligation under Victorian law and international human rights law to provide the same level of healthcare in prisons as available in the community. Our client’s evidence is that the reality is that this is not happening in prisons.”

The case is Mark Rowson v The Secretary, Department of Justice & Ors.

Victorian Supreme Court rules government breached duty of care in COVID-19 prison case
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