The Use of a Military Level of Force on Civilian Prisoners

Federation of Community Legal Centres and Victorian Council of Social Service, Request for a Systemic Review of Discrimination Against Women in Victorian Prisons (2005) 14 at <www.sistersinside.com.au/media/VICComplaint.pdf>.

This information was compiled as part of the background material released pursuant to the Freedom of Information Act 1982 (Vic) for: Private Prisons Investigation Panel, Department of Justice (Victoria), Report of the Independent Investigation into the Management and Operation of Victoria's Private Prisons (2000).

See Shiel Fergus Hughes Gary , ‘Women “Neglected” in Prison’, The Age (Melbourne) 28 April 2005, 1, 6.

Ibid. See also Federation of Community Legal Centres and Victorian Council of Social Service, above n 1; George Amanda , ‘Sexual Assault by the State’ (1993) 18(1) Alternative Law Journal 31. It should be noted that many women in prison have been the victims of sexual assault and the constant strip searching can cause those past traumas to resurface

See Office of the Correctional Services Commissioner, Department of Justice (Victoria), Statistical Profile: The Victorian Prison System 1995/96 to 1999/2000 (2000) 75.

Public Correctional Enterprise, ‘Chemical Agents Instructors Course’ (Workshop delivered at Port Phillip Prison, Melbourne, 30 November and 1 December 1999), 10. This same information is also contained in Public Correctional Enterprise, ‘CORE Training Package on the use of chemical agents’. These documents were released by Department of Justice (Victoria) to North Melbourne Legal Service, 20 July 2000, pursuant to a Freedom of Information application.

McCulloch Jude , ‘Capsicum Spray: Safe Alternative or Dangerous Chemical Weapon?’ (2000) 7(3) Journal of Law and Medicine 311–23.

This level of force can only be lawfully used after a prisoner has been given a warning. As has been seen, these orders are not always lawful: see Lednar & Ors v Magistrates' Court and Anor [2000] VSC 549. Tort law claims are currently before the Supreme Court in Victoria involving this kind of violence and a higher level of force where a prisoner was allegedly struck about the head with an iron ‘pinch bar’ during a cell extraction and after being given no warning about the threat of violence.

McCulloch Jude , Blue Army: Paramilitary Policing in Australia (2001) 15–32.

See Record of Investigation into the Death of Garry Whyte, by Lewis Phillip Byrne case No. 1328/02 delivered 12 January 2005.

Crimes Act 1958 (Vic) s 30A.

For ‘reasonable force’, see ss 464T(7)(d), 464ZA(1), 464E(4) and 464ZF(9)(d) of the Crimes Act 1958 (Vic).

Meagher Dan , ‘The Quiet Revolution: A Brief History and Analysis of the Growth of Forensic Powers in Victoria’ (2000) 24(2) Criminal Law Journal 76.

Giles Tanya Moor Keith , ‘Prisoners Face Blood Squad’, Herald Sun (Melbourne), 26 February 2000, 28

McCulloch , above n 9.

In the months leading up to the action at Bendigo Prison, the police had made more than 2000 applications in the Melbourne Magistrates' Court against individuals who were in prison. Magistrates heard the applications ex parte and en masse in chambers. Individual circumstances were not raised and magistrates robotically rubber-stamped forms as they were fed to them by the police. In conducting the applications in such a fashion, magistrates failed to observe the procedures set out in s 464ZF(8) of the Crimes Act, which are designed to ensure that magistrates are satisfied that in all the circumstances the making of the orders are justified and that they make reasonable inquiries. Because of this and other failings, magistrates did not have the jurisdiction to make the orders, and these orders were determined to be illegal: see Lednar & Ors v Magistrates' Court and Anor [2000] VSC 549.

See Hocking B A Young M Falconer A O'Rourke P K , Queensland Women Prisoners' Health Survey (2000); NSW Chief Health Officer, Report of the NSW Chief Health Officer: Prisoner Health (2002). It is interesting to note that there are no hard figures on prisoner health in Victoria because, incredibly, there ‘is no system in place hellip; to review health epidemiological data on the prisoner population’: Kevin Lewis, Managing Director, Australasian Correctional Management, cited in Private Prisons Investigation Panel, Department of Justice (Victoria), Report of the Independent Investigation into the Management and Operations of Victoria's Private Prisons (2000) 92. Victoria's prisons have on-site medical facilities which include physiotherapy, psychology, psychiatry, dental, optical, x-ray, ward beds and outpatient services. However, despite all this, so poor is prisoner health that, in 1999–2000, Victoria's 2800 male prisoners attended 2552 appointments for medical care outside of their prisons. This basic data is not available for women prisoners: Private Prisons Investigation Panel, Department of Justice (Victoria), Report of the Independent Investigation into the Management and Operations of Victoria's Private Prisons (2000) 86.

Shiel Hughes , above n 3.

‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’: International Covenant on Civil and Political Rights, art 10.1, in Human Rights and Equal Opportunity Commission Act 1986 (Cth), schedule 2.

Lednar & Ors v Magistrates' Court and Anor [2000] VSC 549.

Greene Judith , ‘From Abu Ghraib to America: Examining our Harsh Prison Culture’ (2004) 4(1) Ideas for an Open Society 1.