Pondering centuries-old legal principles is hardly a new concept for Supreme Court judges, but tomorrow is shaping to be a little different.
Lawyers from Western Australia’s Aboriginal Legal Service are preparing to ask Justice Paul Tottle to consider a legal principle that traces its roots all the way back to before even the Magna Carta’s creation in England in 1215.
But unlike many of the law’s ancient principles, this one has fallen into near disuse, being the subject of just eight Supreme Court decisions over the last two decades.
The fact that the legal team for a group of teenagers detained in WA’s juvenile justice system are looking so far back into history shows how desperate they are for change.
They want some kind of resolution by Christmas, as they prepare to argue the state government has continued to break its own laws by keeping detainees in unlawful conditions – including spending just 10 or 15 minutes outside their cells some days.
What is habeas corpus?
Habeas corpus has been described as one of the “greatest and oldest” remedies a court can grant.
It formed as a part of English law centuries ago, over time stretching into a broad concept covering everything from bail applications to matters concerning the mentally ill.
In Latin, it translates to something along the lines of “you shall have the body” – in reference to the fact that the prisoner is brought into the courtroom for the judge to hear from directly.
Now, centuries later, it acts as one of the most “essential safeguards” in any legal system that traces its roots back to England, according to former Supreme Court Chief Justice Wayne Martin in one judgement, because it allows a court to check whether a prisoner’s detention is legal or not.
Usually if it’s granted, it results in someone being released from prison entirely.
The last time that happened in WA was in 2014 when Michael Dennis John Tulloh, who had been sentenced to 15 years in prison for a drug-related offence, was released after the court found his sentence had been incorrectly calculated.
Hope for Christmas change
But this time, if they use the principle, lawyers for the teens won’t be asking for them to be released from prison.
Instead, they’re asking for them to be released from what they say is unlawful detention within the prison system.
That comes back to an August case in the same court, where Justice Tottle ruled the state government was breaking its own laws by keeping detainees in what amounted to ‘solitary confinement’.
The ALS says those conditions have continued in spite of the court’s ruling.
Documents filed in the case show the ALS will argue one of the detainees spent as little as 10 minutes outside his cell at Banksia Hill on one day in early November.
They say he was not let out at all on December 4, after being transferred to Unit 18, at an isolated part of the adult Casuarina Prison.
That’s despite the government insisting conditions at Banksia Hill had improved in recent months, even if Unit 18 was still struggling with staffing issues.
More details will be laid out at Friday’s special hearing, with the court convening so close to Christmas in recognition of the urgency of the matter.
“We’re really worried about the kids’ mental health, and we’re really worried about their physical health too, being locked in their cells,” one of the ALS’s lawyers, Alice Barter, said earlier this month.
“Things often get worse over Christmas and January, especially as the weather heats up and we would really like the kids to be lawfully confined for Christmas.”
Corrective Services Minister Bill Johnston declined to comment on the case, saying it would be inappropriate to do so while it was before the courts.
In 1987, the High Court decided one of Australia’s seminal cases on habeas corpus, with Sir Gerard Brennan reflecting on the principle’s rare application.
“Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force,” he started his judgement.
Decades later, lawyers for the young people held in detention will be hoping the law’s force truly has remained undiminished, and that there will be some change in their circumstances before Christmas.