By Gideon Boas

This piece is featured in the 2015 Castan Centre Human Rights Report. We will be featuring the articles on the blog throughout the month of May. 

Prison overcrowding is a serious issue for the Victorian justice system with implications for the fundamental human rights of prisoners, especially in situations where they are prevented from attending their own court hearings — notably contested hearings, mentions and bail applications — because there is insufficient space for them in custody centres or police cells.

At issue here is not only the responsibility prison governors have to inmates but their obligation to comply with orders requiring a prisoner to be produced in court. By late 2013, amid a climate of fear about law and order, not only were increasing numbers of prisoners on remand being refused bail but greater restrictions were being placed on the granting of parole for those serving sentences. Persistent problems with prisoners not being brought to court exacerbated the situation, potentially violating the right to a fair hearing of their cases.

The situation at the Melbourne Magistrates’ Court has been particularly troubling. When police who had been absorbing the overcrowding started to push back and refuse large numbers, up to a third of prisoners listed on a given day were not being transported to court and the Department of Corrections was bearing tens of thousands of dollars in costs.

In late October 2013, following weeks of case delays and adjournments, Magistrate Michelle Ehrlich described the effects of the crisis as beyond her level of tolerance. After a prisoner for whom I was acting was denied the opportunity to have his bail application heard, Magistrate Ehrlich agreed to consider charging the Governor of the Metropolitan Remand Centre with contempt of court, under Section 133 of the Magistrates’ Court Act, for disobeying an order directing him to produce that witness.

The Victorian Charter of Human Rights and Responsibilities Act, specifies that a person arrested or detained on a criminal charge is entitled “to be tried without unreasonable delay” (s 25(2)(c)). The Charter makes clear that it is unlawful for a public authority to “act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right” (s 38(1)). A “public authority” includes a “public official”’ and as such describes the Governor of the Metropolitan Remand Centre.

Charging a prison governor may seem a drastic development but it is perfectly legitimate and potentially a way of ensuring fairer processes in future. Simply put, a contempt of court will be made out where an order is made by the Court; the terms of the order are clear, unambiguous, and capable of compliance; the order is served on the defendant or service is excused; the defendant has knowledge of the terms of the order; and, the defendant breaches the terms of the order.

The main purposes of the Magistrates’ Court Act include to provide for the fair and efficient operation of the Court (s 1(c)), and to enable the management of the Court to ensure fairness to parties and the prompt resolution of court proceedings (s 1(e), (i)–(iii)). These purposes should be taken into account when construing Section 133.  They correlate with the fact that the Magistrates’ Court is the highest volume court in this State: during 2011-12 more than 170,000 criminal cases were initiated there.

The administration of justice, in an efficient and fair manner, lies at the very foundations of this Court’s existence – and disobedience to the terms of a gaol order constitutes a serious threat to the course of justice in the Court, and the fulfilment of its essential purposes.

Therefore, a purposive reading of Section 133 gives the Court broad powers to invoke its jurisdiction to hold persons in contempt when the conduct in question interferes with the Court’s operations and administration of justice.

In a situation such as this – where a gaol order directs that a prisoner be brought before the Court, and where such an order is disobeyed – the Court’s power to punish for contempt in face of the Court may be exercised.

Whilst not without contention, particularly with respect to what constitutes contempt ‘in the face of the court’, it is my view that the Magistrates’ Court has personal jurisdiction to hold the Governor of the MRC in contempt as a legally proper way of ensuring that the human rights of prisoners are not infringed.

It is worth recalling this observation from Morris v Crown Office ‘The phrase “contempt in the face of the court” has a quaint old-fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society”.

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