• The Supreme Court of Victoria. (Recep Sakar/Anadolu Agency via Getty Images)Source: Recep Sakar/Anadolu Agency via Getty Images
In a landmark decision on Friday, the Supreme Court of Victoria has found that the state government prima facie breached its duty of care to prisoners amid the COVID-19 pandemic, giving renewed hope to advocates for the immediate release of Indigenous prisoners.
Madeline Hayman-Reber

1 May 2020 - 5:20 PM  UPDATED 2 May 2020 - 2:46 PM

On Friday the Supreme Court of Victoria made a decision that the Victorian government has prima facie breached its duty of care for prisoners in the state's response to the COVID-19 pandemic.

The issue came to light when a prisoner sentenced to Port Phillip Prison with severe health issues had his case presented to the court by the Fitzroy Legal Service (FLS) and the Human Right's Law Centre.

The FLS team argued that prisoners were at a high risk of infection and even death if the virus were to enter the confined environment of a prison. The FLS argument included the presentation of expert evidence that COVID-19 would spread faster in a prison than in a community.

The ruling stated that the evidence presented by the prisoner "provide a sufficient basis, when taken with the absence of a risk assessment, to establish a prima facie case that the defendants have breached its duty of care to him, which exposes him to risk of significant injury.”

Senior Lawyer at the Human Rights Law Centre, Monique Hurley, said it was a win for the rights of people behind bars in Victoria.

“Everybody deserves to be safe during a pandemic. But prisons are overcrowded and have substandard hygiene practices at the best of times. Right now, they are a COVID-19 tinderbox," said Ms Hurley.

"Ultimately, the Victorian Government should be looking to responsibly release certain groups of people from prison. The evidence is clear - once COVID-19 enters a prison, it will spread like wildfire."

The case has provided new hope to those fighting to have Indigenous prisoners released during the global and national health crisis in an attempt to prevent black deaths in custody. 

The Court's decision on Friday follows the release of an open letter from the families of Indigenous people currently incarcerated, or who have had a family member die in custody.

The letter was posted to the Aboriginal Legal Service webpage, and in partnership with the National Aboriginal and Torres Strait Islander Legal Service is a call to action for "all Australian governments".

"We know that our people are more vulnerable to contracting and dying from COVID-19," the letter reads.

"We fear that a Black COVID-19 death in custody is only a matter of time: the risk is compounded by the mass incarceration of our people and the high rates of Aboriginal deaths in custody.

"Far too often, our people have died in custody because their health issues have not been taken seriously due to racism. Prisons are not safe. Consequently, our people are ‘at risk’ during this pandemic and must be released."

The letter goes on to make recommendations under three main points: to get mob out of prison; stop criminalising mob during the COVID-19 crisis; and to support Indigenous prisoners transitioning back into the community.

Forty-four people have signed the letter, including the family of Tanya Day, who died in police custody in Victoria in 2017. 

Ms Day's daughter, Apryl Day, a strong advocate for prisoner release told NITV News on Friday that prisoners are not safe from the virus in jail and should be immediately released.

"The prisons aren't equipped to deal with a global pandemic and the safest option is to have them release our mob. Otherwise, if they don't, it's pretty much a guarantee that we're going to have more Aboriginal deaths in custody," she said.

While the Supreme Court ruling has renewed the group's hope, it is yet to receive an offical response from government.

NATSILS call for prisoners to be released to prevent Coronavirus-related deaths in custody
The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) has called for the release of vulnerable and low-risk prisoners to prevent 'black deaths in custody from COVID-19'.