“Legal rights are not trivial, not to be applied or ignored on a whim, not ignored because of a power imbalance between the parties, and not ignored because there are no votes in running a prison with due regard to human right.” HUGH SELBY reveals another failure by ACT Corrections. 

Not so long ago sentenced prisoners lost legal rights. This was known as “attainder” or “the civil death doctrine”. 

Notorious, mid- 20th century NSW prison escapee Darcy Dugan sued Mirror Newspapers for defamation in the mid ’70s. He lost. 

A quarter century earlier he had been sentenced to death with his sentence commuted to life imprisonment. The consequence was that he was incapable of suing in the courts.

Even though the death penalty was abolished in 1955, and so attainder was obsolete, it still applied to Dugan who had been sentenced before that abolition.

Justice Lionel Murphy set out how the civil death doctrine was unjust in not allowing a convicted person redress for personal wrong whether that wrong occurred before, during or after imprisonment. 

He stated: “It is unjust that such a person injured in, for example, an ordinary road or factory accident cannot sue. Although the doctrine treats the person as dead if he seeks to be a plaintiff, it treats him as alive when he is a defendant.”

Parliaments have changed the law. The notion of attainder is no more. This means that nowadays we recognise that prisoners have rights which they are entitled to see enforced. 

Writing in 1982, Bill Clifford, then Director of the Australian Institute of Criminology, wrote: “It seems that now the principle is firmly established, that just because he has broken the law, the offender is never deprived of its protection”. 

That’s a message, now decades old, that is still not grasped in ACT Corrections where assaults upon prisoners, and failure to follow legislated procedures for prisoner and staff safety are still regarded as: “This is our domain, so maybe we’ll pay attention to their rules outside, probably we won’t cos we have our own here”.

Background facts and law

This “wink here and a nod there” approach to legal rights defies the legislated requirements to be found in the Crimes (Sentence Administration) Act (CSA Act), the Corrections Management Act (CM Act) and the Human Rights Act (HR Act).

The latest, easy to access example is nicely set out in a Supreme Court judgment given this week, Millington v Peach.

Prisoner Christopher Millington ran his own case, without lawyers, and won. Full marks to him, but also to the judge and the opposing barrister: cases where one side is “unrepresented” are challenging for everyone and this one had seven hearing days in 2024 and early 2025. 

Part of that process was to clarify the proper legal bases for Mr Millington’s complaint to the court.

Mr Millington’s complaint was that while he was a non-sentenced prisoner (that is, “detained on remand”) at the AMC he was sent in December 2020 to the NSW Goulburn jail by ACT Corrections, which failed to action his clear and repeated requests for a review of the decision to transfer him. 

Materially, Mr Millington was “segregated” (that is, removed from other prisoners and denied various facilities) on an “on, off, on again” basis. 

While “segregated”, Mr Millington completed the required forms to have his transfer to NSW reviewed. 

Mr Millington was entitled to a review. He didn’t get it. That failure was a breach of “procedural fairness”. That, however, is not enough. 

Mr Millington had to demonstrate that the failure led to “a practical injustice”, in this case that he was transferred to a NSW jail with all the inconvenience that that causes to a prisoner.

The CSA Act, section 8, deals with the treatment of “remandees” (such as Mr Millington was at the time). It requires recognition, among others, of the presumption of his innocence, mandates his human right to “just treatment”, and compliance by Corrections staff with the CM Act.

Relevantly the CM Act (in section 192) sets out that an inquiry (such as whether to transfer a prisoner) is an administrative process to which the rules of natural justice – such as procedural fairness – apply. Mr Millington was entitled to a hearing, to ask questions, and to make submissions. He got none of that. 

As Justice Verity McWilliam noted: “There was nothing to suggest that the AMC authorities could not delay the transfer… by even one day to permit the proper review processes to be carried out”. 

The HR Act section 19 requires: 

(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2) An accused person must be segregated from convicted people, except in exceptional circumstances. (Note: this is not the “segregation” that was imposed upon Mr Millington.)

(3) An accused person must be treated in a way that is appropriate for a person who has not been convicted.

What the court found

Mr Millington did not persuade Justice McWilliam that there was a failure to comply with subsections 1 and 2 above; however, she found that, “the lack of a review about (Mr Millington’s) segregation prior to being transferred (to a NSW jail) had a significant impact… severe enough to (not be) appropriate treatment for a person who has not been convicted”. 

Corrections breached section 19(3).

Corrections also breached the HR Act, section 21(1) which is in these terms: “Everyone has the right to have… rights recognised by law, decided by a competent, independent and impartial… (decision maker) after a fair and public hearing”.

What was at stake for Mr Millington was, “the potential for further deprivation of liberty by way of separate confinement within the AMC and elsewhere (that is, a NSW jail)”.

Justice McWilliam found that Corrections’ breach was not trivial; that the entire statutory process for review of the decision to transfer him miscarried; that the confinement without review was unjust and procedurally unfair; that the impact of the breach was significant; and, the alleged justification for his segregation and transfer “was a misrepresentation… and… any kind of threat (by Mr Millington) was not established”.

There is nothing about the facts in this case that is complex. They are almost farcically straightforward. What’s more Corrections has now made guidelines for transfer decisions, an action that suggests the making or non-making of the appropriate decision pre-guidelines was suspect. 

Which makes it all the more difficult to comprehend on what rational, objective basis Corrections argued in court that Mr Millington suffered “no practical injustice”, and that his inability to have the segregation decision reviewed was “insignificant”.

The court rightly rejected those claims.

It is important that readers, Corrections management and government understand that legal rights are not trivial, not to be applied or ignored on a whim, not ignored because of a power imbalance between the parties, and not ignored because there are no votes in running a prison with due regard to human rights.

Addendum

This ever increasing number of articles on the shortcomings in Corrections and the running of the AMC has found a life of its own, fuelled by ever more credible, alarming information provided by our readers.

Readers may remember the long-term supply of hazardous laundry detergent in the AMC cottages where the prisoners do their own washing. I wonder if that has been fixed.

Coming up: sad stories about the scamming of money from prisoner bank accounts by Corrections’ staff, failing to take heed of known dietary problems to the point where a prisoner became ill, the multi-year torture of making a man sleep in a bed too short, and, and.. be patient.

Hugh Selby is a former barrister and is the CityNews legal columnist.