The Human Rights Act 2019 (Qld) establishes in domestic legislation the right of people deprived of liberty, that is people in custody or otherwise detained, to be treated with humanity, respect and the inherent dignity of the human person. This right enshrines a minimum standard of treatment for people in custody, explaining that a person’s rights should only be curtailed to the extent necessary for their confinement.[1] This right applies to those detained for criminal purposes, as well as people in custody for mental health or immigration purposes. This concept will have different consequences at each stage of the criminal process, as is explored below.

Rights of People Detained without Charge

The Act specifically states that those detained without charge must be segregated from persons who have been convicted of offences, unless reasonably necessary. This applies to a person who has been arrested and detained for questioning about a serious offence, but has not been charged with any offence. Generally, police can only detain a person for 8 hours without charge, questioning them for up to 4 hours. It also states they must be treated in a way that is appropriate for a person who has not been charged nor convicted. This accords with one of the fundamental aspects of our criminal justice system, that a person is innocent until proven guilty, and as such should be treated this way.

Rights in Custody

As well as ensuring prisoners are not subject to torture, cruelty or other serious forms of abuse, this right extends to lesser forms of mistreatment ensuring a person in custody can not be:

  • Refused necessary medical treatment; and
  • Unreasonably denied reading and radio facilities; and
  • Confined to their cell for an unreasonably long period; and
  • Subjected to unreasonable restrictions on correspondence with relatives; and
  • Held in ‘incommunicado’ detention’. This means denied any contact with the outside world such as family, friends, or lawyers in a situation where they can only communicate with guards or co-detainees.

A case pertaining to the Human Rights Act 2004 (ACT) provisions regarding humane treatment in custody held this may even extend the right to work to prisoners where it would foster their rehabilitation and support their wellbeing. In this case it applied to allow a prisoner a position tutoring other prisoners. However, the court is reluctant to declare the right of prisoners to work generally, confining it to particular cases and jobs.[2]

Rights in the Court Room

When appearing in court at trial or sentence, offenders are deprived of their liberty. Another ACT case established the right extended to the court room, commenting on the rudeness with which a Magistrate had treated the offender in a previous hearing. The court stated that even where the offender had committed a serious offence of which they rightly disapprove, judicial officers are to act with courtesy and respect, particularly when a sentence of imprisonment is imposed.[3] This is because the criminal justice system must at all times recognise a person’s inherent dignity as a human and treat them accordingly.

Effect on Sentences

This right impacts sentences relating to prisoners whose circumstances mean the conditions of prison will be particularly harsh on them, resulting in shorter custodial sentences. A common example is prisoners who are elderly. A Victorian case established that this principle also extends to people suffering a serious psychiatric illness, in circumstances where the custodial environment is likely to result in the continuation or deterioration of this condition. The rationale for this is to allow imprisonment of such a person would be to deny their humanity.[4] Another Victorian case stated the fact that a prisoner is likely to serve their sentence in protective custody, and as such in more isolation than a prisoner normally would, is also a relevant sentencing factor if it can be demonstrated this would be more onerous on them than a sentence served in mainstream custody.[5]

Custody of Children

Children are only imprisoned as a last resort. In these cases, the court in Victoria stated it is not appropriate for prisoners serving sentences to be detained alongside those in remand.[6] While none of the following have conclusively been ruled out, the court has drawn attention to the following practices as likely to raise questions regarding the right to human treatment in custody:[7]

  • Solitary confinement, especially for long periods; and
  • Strip searches; and
  • Being shackled, including with hand cuffs; and

The use of extendable batons and capsicum spray has been ruled as unlawful in Victoria as it violates this right.[8]

All persons facing the criminal justice system deserve to have their rights fully protected. This includes not only during the trial process but also during any period of imprisonment that may be imposed upon conviction and sentence.

This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!


[1] Human Rights Bill 2018 (Qld) Explanatory Notes, clause 30, page 24-25.

[2] Eastman v Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 4.

[3] Moh v Pine [2010] ACTSC 27.

[4] R v Kent [2009] VSC 375.

[5] R v Bangard (2005) 13 VR 146.

[6] Application for Bail for H L (No 2) [2017] VSC 1.

[7] Dale v Director of Public Prosecutions [2009]VSCA 212; Certain Children by the Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796.

[8] Certain Children v Minister for Families and Children (No 2) [2017] VSC 251.