A convicted murderer serving a life sentence has had a win in the first hurdle of a legal bid to challenge a daily three-hour lockdown in his cell amid an investigation into his relationship with a female staff member.
A Supreme Court judgment handed down yesterday found the cell confinement regime imposed on Frederick Manuel Barreto at the privately-run Acacia Prison was "arguably unlawful" and open to a judicial review.
The judgment reveals that various management decisions about Barreto's employment, privileges and cell confinement were made in 2010 after a security report raised concerns about his interaction with the female staff member.
The woman resigned and since December 2010 there have been 1300 telephone contacts between Barreto and the woman. The pair often communicated in French, but translations indicated a personal relationship.
Barreto, who has represented himself in the lawsuit, was confined to his cell for three hours a day for about a month after being suspended from his employment in Acacia's Oscar Block after reports about his interaction with the woman.
Lawyers for Acacia superintendent Paul McMullan, who is employed by contractor Serco, argued that all Barreto's claims should be dismissed because the actions were lawful and justified under legislation that allowed decisions to be made for the discipline and good order of the prison.
Justice John McKechnie dismissed Barreto's claims that the prison had made an erroneous finding that he had a history of "grooming" female staff and had based it on "prison gossip", "prison politics" and rumours.
But Justice McKechnie found his allegation in relation to his cell confinement regime was different. He ruled that because the lockdown was not punishment and was not in response to an emergency situation, it was arguably unlawful and Barreto's claim should go to a hearing.
Justice McKechnie said decisions that had a material effect on a prisoner's rights and legitimate expectations attracted principles of procedural fairness which might give rise to a remedy at law.
"It is a testament to Australian democracy that even a convicted murderer is able to bring proceedings in the Supreme Court to challenge an administrative decision that he asserts directly affects his rights," Justice McKechnie said.
Serco declined to comment.A Department for Corrective Services spokesman said the decision would be reviewed.
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