Treatment of People Who Are Deprived of Their Liberty

Treatment of People Who Are Deprived of Their Liberty

Section 19 of the Human Rights Act 2004 says that:

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

Section 19 is based on articles 10(1) and 10(2)(a) of the International Covenant on Civil and Political Rights, a human rights treaty to which Australia is a party.

Scope of the rights

The purpose of the right to humane treatment when deprived of liberty is to recognise the particular vulnerability of people deprived of their liberty, and to ensure that they are treated with consideration of their rights and dignity as human beings. Section 19(1) complements the right to be free from torture and cruel, inhuman or degrading treatment under section 10(1) of the Human Rights Act. However, it can be breached by less serious mistreatment or punishment than section 10(1).

In its General Comment 21 on humane treatment of persons deprived of their liberty, the United Nations (UN) Human Rights Committee has observed that this right applies not just to people detained under the criminal law, but also to people deprived of their liberty elsewhere (for example, in an approved mental health service) under the laws and authority of the government. The Committee has made it clear that this right applies to all detention facilities within a country’s jurisdiction.

The right to humane treatment means that individuals who are detained should not be subject to any hardship or constraint in addition to that resulting from the deprivation of liberty. The UN Human Rights Committee has emphasised that people who are detained retain all their human rights, subject only to the restrictions that are unavoidable in a closed environment.

Some examples of human rights that are unavoidably restricted in a closed environment are a person’s right to liberty and their right to freedom of movement.

The revised UN Standard Minimum Rules for the Treatment of Prisoners, known as the Nelson Mandela Rules, establish minimum standards on a range of matters, including conditions of accommodation; food of adequate quality; facilities for personal hygiene; standard of clothing and bedding; opportunities for exercise; availability of medical services; contacts with the outside world; access to books; and regulation of methods and procedures for discipline and punishment (including the prohibition of certain forms of punishment).

Some of the minimum standards set out in the Nelson Mandela Rules are also adopted into ACT law through other legislation, such as the Corrections Management Act 2007, and incorporated in standards on detention in the ACT, such as the ACT Inspection Standards for Adult Correctional Services.

Sections 19(2) and 19(3) of the Human Rights Act grant additional rights to “an accused person”. These rights follow from the principle of the presumption of innocence: a detainee who has not been convicted is entitled to a different treatment regime than convicted detainees because they are presumed to be innocent until proven guilty of the crime with which they are charged. This different treatment includes being segregated from those serving their sentences. However, section 19(2), and international human rights law, permit the non-segregation of an accused person from convicted detainees in “exceptional circumstances”.

Related protections: National Preventive Mechanism monitoring of detention in the ACT

The ACT Human Rights Commission is a member of the ACT National Preventive Mechanism (NPM), a detention monitoring body with the power to visit any place under the jurisdiction and control of the ACT where people are, or may be, detained. A human rights treaty to which Australia is a party, called the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, requires Australia to establish NPMs as a way of preventing ill-treatment in detention. For more information on our detention monitoring work as a member of the ACT NPM, see the ACT NPM website.

When could these rights be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Among other examples, section 19 may be relevant to:

  • laws and policies that enable a person to be detained or that relate to the conditions under which a person may be detained, for example, in prisons, mental health services, and prison transportation facilities;
  • standards and procedures for the treatment of those who are detained, for example, use of force, dietary choice, and access to private shower and toilet facilities;
  • detaining a person in a place with limited facilities or services for the person’s care and safety;
  • enforcement officers undertaking searches of those who are detained;
  • laws, policies and actions concerning where an accused person may be detained (for example, in which part of a prison they may be detained) or the treatment they receive while in detention.

Cases

Cases in which ACT courts have considered the rights under section 19 include:

  • Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83, in which the ACT Supreme Court decided that denying a detainee open air and exercise is a failure to treat them with humanity and dignity, contrary to section 19(1), and that giving a detainee access only to an 8.39m2 courtyard covered overhead with a metal mesh, rather than the prison’s general exercise yard, did not fulfil their entitlement to open air and exercise;
  • Brown v Director-General of the Justice and Community Safety Directorate [2021] ACTSC 320, where the same Court decided that it was consistent with section 19(1) to make available to detainees “the range of” health services which would be regarded as acceptable in the ACT community, and that they need not necessarily be given an “identical” health service to one which might be provided in the community. The ACT Court of Appeal upheld this decision ([2023] ACTCA 15);
  • ZS v Sentence Administration Board [2018] ACTSC 289, in which the ACT Supreme Court found that a detainee’s right under section 19(1) to be treated with respect for their inherent dignity extends to the process of the grant of parole;
  • Williams v Director of the Justice and Community Safety Directorate [2025] ACTSC 396, where that Court decided that – among other human rights breaches – prison officers’ use of force against an accused person detained at the ACT’s prison, their attempt to strip search her in a cell, and their later strip search of her in a bathroom breached that detainee’s rights under sections 19(1) and 19(3) to humane treatment and to treatment appropriate for a person who had not been convicted;
  • DPP v Alexander (a pseudonym) [2024] ACTSC 161, in which that Court decided that housing an accused person with convicted detainees, in circumstances where those two categories of detainees were routinely accommodated together despite legislative and policy requirements, breached the right to segregation under section 19(2). ACT courts have also said that the breach of a person’s section 19(2) right should be considered when sentencing that person (R v McIver [2022] ACTSC 206; McIver v The King [2023] ACTCA 48 ).

There are also many international decisions on these rights, especially a detainee’s right to be treated humanely. For example, the UN Human Rights Committee has decided that this right was violated in cases where detainees were:

Note:

This factsheet is not intended to be a substitute for legal advice.

Last updated January 2026.