Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter

  Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)

The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from refusing to grant the permits and approvals necessary to access IVF treatment, contrary to the Victorian Charter of Rights.  The Court did, however, order that the matter be expedited and brought on for speedy trial within a month given the urgency of the issues.


The plaintiff, Kimberley Castles, is a 45 year old woman currently held as a low security prisoner at Tarrengower prison.  She is serving a three year sentence, commencing November 2009, for social security fraud.  Prior to her imprisonment, Ms Castles was undertaking IVF treatment.  The course of treatment was interrupted by her imprisonment and she will become ineligible for IVF when she turns 46 in December 2010.  Her chances of becoming pregnant diminish every month without treatment.

Following her imprisonment, Ms Castles made repeated requests to the Secretary of the Department of Justice to grant the approvals necessary for her to continue IVF treatment while a prisoner.  When the Secretary failed to make a decision or grant the approvals, Ms Castles sought an injunction to restrain the Secretary from ‘continuing to neglect, fail or refuse to grant the permits and approvals necessary to access IVF treatment’.

In seeking this order, Ms Castles relied on her rights under the Charter of Human Rights and Responsibilities to privacy and family (s 13(a)), to equality and non-discrimination (s 8), to humane treatment in detention (s 22) and to protection of family and children (s 17) and the Secretary’s correlate duty, in determining whether to grant the necessary approvals, to properly consider and act compatibly with these human rights (s 38).  Ms Castles also relied on provisions of the Corrections Act and the common law and fiduciary duties owed to her as a prisoner.


Justice Osborn held that there was a serious issue to be tried in respect of the rights, but that the balance of convenience did not favour the grant of the injunction.  The Court did determine, however, that the matter was ‘deserving of expedition’ and ordered that it be ‘brought on for hearing within one month’.

The Court arrived at the conclusion than an interlocutory injunction should not be granted for a number of reasons, including that:

  • The Secretary ‘accepted that the plaintiff is entitled to determination of her application for a permit in accordance with law and the defendants have identified specific factual considerations properly regarded as relevant to the exercise of that discretion.’
  • The plaintiff is not presently legally entitled to IVF treatment under the Assisted Reproductive Treatment Act 2008, as she has not yet received the necessary criminal record and child protection checks.
  • The ‘operational considerations and constraints’ raised by the defendants, including in relation to prison safety, security and ‘the provision of adequate facilities’ are matters of ‘serious public importance’.  Justice Osborn considered that the Court is not equipped to ‘second guess the Secretary’s exercise of discretion in circumstances where it appears on the evidence that it was open to her [to make the decision she did], and she is in a position to assess operational issues, which the Court is not’.
  • ‘One their face’, the operational considerations referred to above ‘fall within the category of matters comprehended by s 38(2) of the Charter’ (which provides that a public authority is not bound to act compatibly with human rights if, as a result of a statutory provision or otherwise under law, the public authority could not reasonably have acted differently or made a different decision).
  • On the material before the Court, the case that the Secretary was ‘bound to make a decision contrary to that which she has made, is weak’.
  • A speedy trial of the matter can be fixed and liberty to apply for further orders can be reserved to the parties.

Accordingly, the matter was fixed for trial on 1 June 2010.

The decision is available at

Phil Lynch is Executive Director of the Human Rights Law Resource Centre.

The Centre is acting for Ms Castles, together with Blake Dawson, Ron Merkel QC and Michael Borsky of Counsel.