Open letter to Australian authorities: Why don’t you care about the rights and safety of imprisoned women?

Open letter to Australian authorities: Why don’t you care about the rights and safety of imprisoned women?

Dear Premier of Victoria, Leader of the Opposition, Ministers, Shadow Ministers and Commissioners,

In August 2022, it came to our attention that a violent male sex offender – who identifies as female – was being housed in Victoria’s Dame Phyllis Frost Correctional Centre for women. The offender’s convictions include attempting to rape a woman on a Melbourne street, and sexually abusing his six-year-old daughter.

Of all the issues we deal with, this is one which has provoked some of the most outrage and shock by our supporters and everyday Australians.

Feeling “unsafe, distressed and traumatised”, the female inmates petitioned multiple Victorian authorities to remove the man in question. The petition said that many of the prisoners carry significant trauma associated with having been victims of sexual assault or supporting victims, and that on hearing the news, "the mental wellbeing of many of the women was severely compromised."

After hearing about the female inmates’ pleas for help, Women’s Forum Australia and Coalition for Biological Reality joined with women’s advocates from across the political spectrum to call on authorities to protect the prisoners’ safety and human rights. We called for the immediate removal of the man in question, as well as for an inquiry into the decision to place a male sex offender in a women’s prison, and a review of the guidelines that made this possible.

Our petition has been signed by thousands of Australians, and supported by high-profile partners like former Liberal candidate Katherine Deves and Giggle founder Sall Grover, as well as Melbourne University Professor Dr Holly-Lawford Smith, RMIT University Lecturer Dr Caroline Norma, Author and Historian Janet Fraser, IWD Brisbane Meanjin, LGB Defence, Women Speak Tasmania, and Fair Go for Queensland Women. We spoke about the issue in the media, and we wrote to all of you:

  1. Premier Daniel Andrews
  2. Minister for Corrections Sonya Kilkenny
  3. Minister for Women The Hon Natalie Hutchins
  4. Minister for Equality Harriet Shing
  5. Attorney-General The Hon Jaclyn Symes
  6. Ombudsman Deborah Glass
  7. Victorian Equal Opportunities & Human Rights Commissioner Ro Allen
  8. Australian Human Rights Commissioner Lorraine Finlay
  9. Australian Sex Discrimination Minister Kate Jenkins
  10. Leader of the Opposition The Hon Matthew Guy
  11. Shadow Minister for Corrections Brad Battin
  12. Shadow Minister for Women Emma Kealy
  13. Shadow Minister for Equality James Newbury
  14. Shadow Attorney-General The Hon Michael O’Brien

The response, or lack thereof, has been disappointing to say the least.

Many of you failed to respond at all and those of you who did, either declined to intervene and/or demonstrated an utter disregard for the safety and rights of vulnerable women.

Labor Government Ministers

Premier Daniel Andrews and Minister for Women The Hon Natalie Hutchins failed to respond to our concerns at all, and Attorney-General Jaclyn Symes and Minister for Equality Harriet Shing declined to intervene, passing the issue to Minister for Corrections Sonya Kilkenny.

Equality Minister Harriet Shing’s response on 25 September 2022 was particularly disappointing.

It mentioned the “distress and fatigue the trans and gender diverse community is feeling as a result of ongoing debates about their rights” and the need to support them. However, it made no reference whatsoever to the safety and rights of women - which are currently being undermined - or to the distress and fear that female inmates are experiencing as a result of a male sex offender being housed in their prison. Indeed, Shing’s letter made no mention of women at all.

Elevating the “safety and security” of a violent male sex offender above that of vulnerable women because he identifies as trans, is the antithesis of equality.

The response (and lack of response) from Labor politicians is perhaps expected given many have openly supported self-identification policies and the party’s National Platform supports policy that will “review documentation requirements, including the use of passports and birth certificates, as they affect transgender and intersex people, to ensure that male, female and nonbinary identity can be affirmed without discrimination.” This doesn’t make it any less disappointing or any more acceptable.

Liberal and National Shadow Ministers

Responses from Liberal and National Party Shadow Ministers have been no better. We have received no response from Opposition Leader Matthew Guy, Shadow Minister for Corrections Brad Battin or Shadow Attorney-General Michael O’Brien.

Shadow Minister for Equality James Newbury and Shadow Minister for Women Emma Kealy responded simply encouraging us to keep raising the matter with the relevant Victorian Government Ministers, but without offering any substantial support.

The Labor Government may currently be the ones with the power to effect change in this area, but the Labor Party’s patent adherence to gender ideology mean it is unlikely to lift a finger to protect female inmates from a trans-identifying male sex offender.

However, the Liberal Party’s lack of action is just as disappointing, if not more so, given that many Liberals are well aware of the havoc that gender-based policies and practices are wreaking on women and children when it comes to (what should be) single-sex spaces and activities like prisons, bathrooms, changerooms, domestic violence refuges, sports and so on. Indeed, multiple Liberal senators have spoken out about these issues at the federal level.

Australian Human Rights Commission (AHRC)

The response we received from the Australian Human Rights and Sex Discrimination Commissioners on 23 September 2022 stated that:

“Human rights are essential to all Australians including those in detention, and we acknowledge the complexity of the issues surrounding the placement of transgender people in custodial contexts. The safety and welfare of all people in detention is a matter of considerable importance.”

It concluded, however, that:

“Decisions about the placement of individual prisoners within the Victorian corrective services system sit outside the powers of the Australian Human Rights Commission, which administers Commonwealth laws. These decisions are also beyond the scope of our powers as federal Commissioners.

Australia is a party to the International Covenant on Civil and Political Rights (ICCPR) and Australia has obligations under articles 9(1) and 10(1) of the ICCPR to uphold the right to security of person and ensure that people in detention have their safety and security protected. However, the Australian Human Rights Commission can only accept complaints involving ICCPR rights when the allegations are made against the Commonwealth or one of its agencies, and not State government agencies.

Given that your concerns involve decisions made under Victorian law and policy, we encourage you to raise these issues with our counterparts at the Victorian Equal Opportunity & Human Rights Commission and Victorian lawmakers.”

An AHRC information sheet on ‘Human Rights and Prisoners’ disturbingly states that “There are limited human rights protections for prisoners and former prisoners at the moment.”

Australia’s failure to yet implement the Optional Protocol to the Convention against Torture (OCPAT) means that “While there are some prison monitoring systems in states and territories, there are currently no national standards for monitoring conditions in prisons and juvenile detention centres.”

The information sheet explains:

“If you are a prisoner, you have some options if you think your human rights have been breached. For example, you could

  • complain about discrimination to state and territory anti-discrimination bodies,
  • complain about inhuman treatment to state and territory ombudsmen
  • if you are federal prisoner, complain to the Australian Human Rights Commission about human rights breaches.”

While complaints against State and Territory Governments may not be within the Australian Human Rights Commission’s jurisdiction, the AHRC can issue statements calling on these governments to uphold human rights, like it did after the UN Subcommittee on the Prevention of Torture’s inspection of Australian detention facilities was cut embarrassingly short last month, after various states refused to cooperate.

In other words, the AHRC could, if it wanted to, call on the Victorian Government to protect the human rights of female prisoners at Dame Phyllis Frost. However, given the AHRC’s support for gender self-identification, as well as policies like the inclusion of trans-identified male athletes in women’s sport, it is unsurprising that it is reluctant to take a stand for women when their rights clash with those of a trans-identified male.

Victorian Equal Opportunity & Human Rights Commission (VEOHRC)

In line with the AHRC’s suggestion to “raise these issues with our counterparts at the Victorian Equal Opportunity & Human Rights Commission and Victorian lawmakers”, we had already written to the VEOHRC. Yet, despite the AHRC’s suggestion, the VEOHRC apparently also has no power to do anything.

Initially, the VEOHRC informed us on 13 September 2022 that it would be meeting with Corrections Victoria in October to discuss our concerns and would respond following that meeting. However, it’s non-response on 12 October 2022 begs the question as to what the point of the meeting was, and what was discussed there:

“These are important and complex matters. Like you, I share a deep concern for the safety and wellbeing of all people detained in prison, and recognise that the majority of women who are incarcerated have experienced significant trauma across their lives. 

Under the Charter of Human Rights and Responsibilities, all people in prisons and places of detention are entitled to have their rights protected and be treated with respect and dignity. The Charter places a responsibility on the public authorities overseeing prisons and other places of detention to ensure that all people within those environments are safe, protected and treated humanely.

The Commission considers that Corrections Victoria’s policy for the management of prisoners who are trans, gender diverse or intersex provides a framework for prisoner placement decisions that is grounded in human rights principles. Corrections Victoria is responsible for applying the policy and for making decisions about prisoner placement in Victoria. The Commission does not have the legislative power to initiate an inquiry into these decisions or to direct or overturn them. However, we can support public authorities to understand their responsibilities under the Charter and develop knowledge and skills to apply human rights in their decision making and operations.”

It is incredibly concerning when both national and state human rights bodies are claiming they have no ability to protect the human rights of imprisoned women.

We fail to see the point of the VEOHRC meeting with Corrections Victoria if it is not able or willing to promote the human rights of all Victorians.

There is a monumental difference between recognising that the majority of incarcerated women have experienced significant trauma and actually actively working to alleviate rather than contribute to such trauma.

The human rights of imprisoned women are clearly not being “protected” or “treated with respect and dignity” when a male sex offender is being housed in their prison.

Public authorities overseeing prisons are clearly not ensuring that all imprisoned people are “safe, protected and treated humanely”, in this situation.

The VEOHRC has clearly not done its job in supporting public authorities to “understand their responsibilities under the Charter” or “to apply human rights in their decision making” when vulnerable women are distressed and being put at risk of sexual assault, among other harms, by a convicted male sex offender.

The VEOHRC website and 2017-22 Strategic Plan state that it is dedicated to protecting the human rights of those in prisons or detention centres (also known as “closed environments”).

It notes in particular:

  • “We all have a right to be protected when in care or detention and to be free from cruel, inhuman and degrading treatment.
  • People living in detention, or residential or care settings where their liberty is restricted, have limited control over their lives and choices and are more vulnerable to having their human rights abused or denied through poor treatment or neglect.
  • People in closed environments may often be unaware of their rights, by reason of the nature of the setting, their age, disability or background, or lack the support needed to assert them.”

The VEOHRC states that under its strategic priority to protect human rights in prisons or detention centres, it will:

  • “raise awareness of the importance of human rights in closed environments and how individuals can assert their rights
  • identify and address the systems, structures and practices that result in unfair treatment, abuse or neglect in particular closed environments
  • assist in the implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and its standards for monitoring places of detention.”

The five-year outcomes the VEOHRC seeks are to:

  • “ensure law and policy that regulates closed environments is better informed by human rights principles
  • help vulnerable individuals have a greater awareness of rights in closed environments and empower them so they better equipped to take action if their rights are violated
  • help institutions understand the benefits of human rights and make sure they are more committed to protecting the human rights of people in their care.”

As noted by the VEOHRC on Twitter, its investigative powers may relate to Victoria’s Equal Opportunity Act and Change or Suppression (Conversion) Practices Prohibition Act, rather than the Charter of Human Rights and Responsibilities Act (which fall under the Ombudsman’s jurisdiction).

However, the VEOHRC’s very specific strategic priority to protect the human rights of those in prisons or detention centres, coupled with the fact that similar to the AHRC, the VEOHRC publicly calls for human rights to be protected when it suits them, indicates that like the AHRC, the VEOHRC could, if it wanted to, take actions to protect the human rights of female prisoners at Dame Phyllis Frost, including calling on the Victorian Government to do so.

However, like Labor and the AHRC, it is clear from the VEOHRC’s website that the organisation and its leadership are ideologically captured by gender ideology and willing to elevate the interests of trans-identified men, over the rights and safety of women.

Corrections Victoria

On 27 October 2022, we finally received a response from Corrections Victoria, the government body with primary responsibility for dealing with this issue and to whom we had been referred by multiple other authorities. The response was prepared by Corrections Victoria Commissioner Larissa Strong on behalf of Corrections Minister Sonya Kilkenny (from whom we never received any direct communication). Strong was responsible for developing the Commissioner’s Requirements, which allow trans-identifying males to be housed in women’s prisons.

Strong’s response merely reiterates her own guidelines stating that people “should be accommodated in the system of their gender, rather than sex assigned or assumed at birth” taking into consideration “safety and security concerns”, without actually addressing any of our concerns regarding the safety and rights of female inmates when housed with a violent male sex offender.

For example, no evidence is offered to show that the rapes and sexual assaults (alleged and convicted) of female inmates by trans-identifying males prisoners in Australia and overseas have been taken into account, nor that there is an appropriate understanding of the grave psychological impact of housing a male sex offender with victims of sexual abuse.

It states that Corrections Victoria,

“make decisions about the placement of trans and gender diverse people on a case-by-case basis, informed by a multi-disciplinary panel. Decisions take into account the nature of an individual’s offending, the preference of the individual, risks to the individual and risks to others, and any other relevant issues. Corrections Victoria also seeks input and advice from a person with lived transgender experience as well as forensic psychologists. This provides insight into both the preferences of an individual as well as the risks they may present to others.”

In other words, decisions take into account the preferences of trans-identified males, but not the preferences of the female inmates they are to be locked up with. It is difficult to see how an appropriate risk assessment was carried out (and no explanation is offered of how it was), when it led to a violent male sex offender being locked up with vulnerable women.

The response also acknowledges the trauma of female prisoners:

“Decisions about placement recognise that women in custody often suffer due to trauma. I am acutely aware that many of the women in custody have experienced victimisation, family violence as the victim-survivor, and physical, emotional, and sexual abuse and that there are many situations that can threaten their feelings of safety and physical and emotional wellbeing.

I assure you that Corrections Victoria considers the needs of everyone in the prison system, including human rights, safety and the effects of trauma on women, when making placement decisions. The physical, psychological and emotional safety of the women in our care is of the upmost importance to us.”

This is perhaps the most appalling part of the response. The Commissioner recognises the trauma of imprisoned women and their backgrounds of violence and sexual abuse. She claims that their physical, psychological and emotional safety is of the utmost importance. She knows that the female inmates in question are feeling “unsafe, distressed and traumatised” and have begged authorities to remove the offender. And yet, she has still done nothing. Simply saying you are aware of female prisoners’ trauma and saying their safety is of the utmost importance, is very different to acting as if this is the case.

And despite the Commissioner’s claim that Corrections Victoria “considers...human rights”, there is also no explanation of how Corrections Victoria has genuinely considered the human rights of the female prisoners as articulated in Victoria’s Charter of Human Rights and Responsibilities Act, under United Nations Rules which require that men and women be detained separately, or under other international human rights instruments such as the International Covenant on Civil and Political Rights or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

This disappointing response, coupled with the fact that guidelines even exist that allow biological males to be housed in women’s prisons, shows just how beholden Corrections Victoria also is when it comes to adhering to ideologically driven gender-based policies at the expense of women’s rights and safety.

The Ombudsman

The only authority who currently appears to be taking this issue seriously is the Victorian Ombudsman, who informed us on 21 September that it is investigating the issue using its ‘own motion’ powers.  On 4 November, we were informed that the Ombudsman’s investigation is still underway.

Submission to the UN Subcommittee on the Prevention of Torture (UN SPT)

In advance of the UN SPT’s recent, abridged, visit to Australia in October, we made a joint submission with other Australian women’s advocates raising concerns about the harmful practice of housing men in women’s prisons, and how it can put female prisoners at risk of torture, and other cruel, inhuman or degrading treatment.

“The harms of housing trans-identified males in female detention facilities most seriously include the rape of female inmates, an example of which was first recorded in Australia as early as 1999...Rape is a form of torture used most frequently against women. To subject female prisoners to the perpetual threat of rape and sexual assault is...a form of psychological torture.” (pp. 2-3)

Due to the lack of cooperation from state governments, the SPT’s visit was cut short, and we do not know whether it even made it to Victoria, where we had asked it to speak to the female prisoners whose safety and rights are being undermined at Dame Phyllis Frost.

We attach a copy of our submission which we hope will help you to better understand just how urgent and egregious this current situation is. The submission includes the key correspondence referred to in this letter, apart from the more recent letter from Corrections, which we attach separately.

We have also sent a copy of our submission to Dr Alice Jill Edwards, an Australian and the first female Special Rapporteur on Torture, requesting her assistance in our efforts to protect the human rights and safety of female prisoners in Australia, specifically at Dame Phyllis Frost. “Among Dr. Edwards’ most renowned work is her breakthrough legal argument, which is now accepted as doctrine globally, that rape and sexual violence are forms of torture and persecution”.

Call to action

It isn't too late to do the right thing. We ask you to put aside ideology and fear to protect the safety and rights of vulnerable women and reiterate the requests in our original correspondence:

  1. the immediate removal of the male sex offender from the Dame Phyllis Frost Correctional Centre, as well as the removal of all trans identifying males from women’s prisons in Victoria;
  2. an inquiry into how this convicted male sex offender was placed in a women’s prison;
  3. a review of the Commissioner’s Requirements for the Management of Prisoners who are Trans, Gender Diverse or Intersex in consultation with women’s groups including current and former prisoners.

We would also like to request meetings with each of you in order to further explain the urgency and gravity of this issue, to seek clarification and justification for your inaction, and to work together to find solutions that protect the rights and safety of both transgender individuals and women. Women’s voices deserve to be heard.

As we have said time and again, every effort should be made to ensure the safety and welfare of all prisoners, but housing males in women’s prisons - particularly dangerous male sex offenders - is not the answer.

We will not give up fighting for the rights and safety of all women

Female prisoners may seem like an easy group to ignore. They don’t have much of a voice and are already some of the most vulnerable and marginalised members of our society. But this reality makes ignoring their cries for help even more inexcusable.

The average person can clearly see how absurd and dangerous it is to lock up a man, who has committed serious sexual offences against females, with vulnerable women. So why are none of you doing anything about it? Why don’t you seem to care?

The only explanation is that you are either too captured by an ideology that harmfully elevates the importance of “gender identity” over sex and biological reality, or you have a fear (which is not unfounded) of being abused, vilified and otherwise targeted by the transgender lobby and its supporters. Either explanation is unacceptable when it comes to the inaction of public officials and authorities who are tasked with serving and protecting all Victorian citizens.

And of course, prisons are not the only context in which women have been stripped of their rights and safety protections. We know that in Victoria, and elsewhere in Australia, women and girls are similarly being put at risk when males are allowed to self-identify into (what should be) female-only spaces and activities like bathrooms, changerooms, domestic violence refuges and sports, to name just a few. And as with this situation, the policies that support this state of affairs, are shamefully supported and spurred on by politicians, human rights organisations, and other public bodies.

For too long, the rights and safety of women and girls have been sidelined, in favour of an aggressive and harmful ideology, that is detached from reality and does not allow any examination or criticism.

We will continue to fight for the rights and safety of female prisoners, as well as the rights and safety of all women and girls, against a movement that seeks to oppress and erase them.

Yours sincerely,

By email to: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

cc: [email protected], [email protected]

Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.

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