3. Criminal

​B. Corrections Management

i.  Legislation
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Victoria:
Corrections Act 1986 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).

Queensland:
Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020 (Qld):
Made under the Corrective Services Act 2006 (Qld), COVID-19 Emergency Response Act 2020 (Qld), Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Penalties and Sentences Act 1992 (Qld) and State Penalties Enforcement Act 1999 (Qld):
  • Corrective Services (COVID-19 Emergency Response) Regulation 2020:  to prescribe modified requirements or arrangements, which will apply in relation to existing requirements for Parole Board Queensland meetings under the Corrective Services Act 2006 (CS Act), statutory time limits for a declaration of emergency under the CS Act, additional attendance requirements for corrective services facilities under the CS Act, and attendance requirements for offenders in the community being managed by corrective services officers under the CS Act, Dangerous Prisoners (Sexual Offenders) Act 2003, Penalties and Sentences Act 1992 or State Penalties Enforcement Act 1999, in reliance on sections 8 and 13 of the COVID-19 Response Act 2020.

Western Australia:
Prisons Act 1981 (WA) amended by the Prisons Amendment Act 2020 (WA).

Australian Capital Territory:
Corrections Management Act 2007 (ACT) amended by:  
Made under the Corrections Management Act (ACT):  
ii.  Case law
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Section 57A(1)(a) of the Corrections Act 1986 (Vic) empowers the Secretary to the Department of Justice and Community Safety to issue a corrections administration permit to a prisoner for a purpose related to the health of a prisoner, for an indefinite period. Such a permit may be issued only if the Secretary is satisfied that adequate consideration has been given to the safety and welfare of the prisoner and members of the public, and facilities exist for the provision of adequate and suitable escort and transport where necessary, and the issuing of the permit complies with any requirements set out in the regulations: s 57D(1). The Secretary may impose any conditions on the permit that he or she thinks are appropriate: s 57D(2)(b). Section 57A(4) provides that a prisoner who is authorised to be absent from prison under the permit continues in the legal custody of the Secretary while absent. 

In Rowson v Department of Justice and Community Safety [2020] VSC 236, Mark Rowson had sought a permit under s 57A(1)(a), in order to avoid serious injury or death by reason of COVID-19. He started trying to apply on 2 April 2020, but by the time his interlocutory application (in effect to be released from prison) was heard, on 29 April 2020, his permit application remained outstanding.  Four days earlier, on Saturday 25 April 2020, Parliament had passed the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic). Relevantly, that Act inserted Pt 10B into the Corrections Act 1986 (Vic).  Section 112O gave the Secretary or prison Governor extraordinary powers, including to mitigate the risk to a prisoner of COVID-19 or related health risks, including the separation, quarantine or isolation of a prisoner from some or all other prisoners and the establishment of separate cells, units, areas in, or parts of, the prison for occupancy by prisoners. However, before making such an order, the Secretary or Governor was required to consider, among other things, the safety, protection and welfare of any prisoner, including, “as far as reasonably practicable”, any medical and psychiatric conditions of the prisoner, the vulnerability of the prisoner, any risk that the prisoner may pose to the prisoner's welfare, if the prisoner has any physical limitations or a disability, and the the prisoner's cultural background.

Mr Rowson submitted that: (1) the insertion of Pt 10B was consistent and coherent with Parliament's recognition of an obligation on the State to protect prisoners from COVID-19 related harm, and (2) Parliament should not be taken to have intended that a prisoner who, by reason of medical or psychiatric conditions, vulnerability, welfare concerns etc. could not be placed into solitary isolation in a prison cell, could not be otherwise protected from the risk. Mr Rowson submitted that the means of protecting such persons was the existing power under s 57A(1)(a) to grant a permit.  That argument did not need to be determined on the interlocutory injunction, but remains a live feature of the substantive case, which may need to be determined on trial.

A general discussion of the case may be found in the Government Obligations section of this text.