A Supreme Court judge has ordered a man be immediately moved from police detention after his legal team revealed he had been held in a cell for almost twice as long as legally permitted.
On Friday, the Victorian Aboriginal Legal Service hauled Victoria Police into the Supreme Court for the first unlawful detention emergency application to reach the bench since the state’s prison cell crisis began.
The court heard no beds were currently available in Corrections Victoria facilities for people requiring protection while on remand.
Lawyer Joanna Davidson sought an urgent order from Justice Lisa Hannon because her client, who cannot be named for his protection, had spent 15 consecutive days in Moorabbin police station cells and a further nine days at a different station.
That is almost double the standard legal 14-day time frame a person on remand can be held before being transferred to a correctional facility, where a person’s human rights can be better addressed.
Davidson said the issue was “systemic” and impacting Victorians, particularly Indigenous people, across the prison system, with her office being made aware of five recent cases.
“His detention, continued custody, is unlawful. I understand Corrections doesn’t have anywhere for him. In our submission, that’s Corrections’ problem, the chief commissioner [of police] cannot continue to detain him,” she said.
“We should not need to seek the assistance of the court to ensure the chief commissioner of police complies with the law.
“This is a systemic issue.”
Jenaya Ellis, a barrister representing the police chief commissioner, said there were plans to move the accused to an assessment prison on Saturday, but that was contingent on the person currently in that cell being relocated.
Ellis said they were not opposed to an order being made but reiterated the information her office had received about the situation.
“It’s expected but it’s not guaranteed. It may not occur … if the prisoner in the bed refuses to be moved,” Ellis said.
Hannon ruled in the applicant’s favour and ordered that he be moved immediately on Friday.
The judge will also now consider whether a declaration that the man’s detention was unlawful should be made.
This could open the door to all people being held in police cells for more than 14 days being urgently moved into correctional facilities.
Last month, this masthead revealed hundreds of Victorians were being moved between police cells each night due to overcrowding in the state’s prisons, with one unsentenced Indigenous man housed in various station cells for 26 days – almost double the legal limit.
While most Victorian cells have a 14-day limit for holding people, prison overcrowding has led to officers moving people between cells and to different police stations across the state as part of a process known as “decanting”.
This process allows police to “reset the clock” and avoid breaching regulations.
At the time, about 300 Victorians were being shuffled between police cells, often to other parts of the state, due to the bed shortage. Some, including vulnerable prisoners, had missed court hearings because courthouse cells were full on the day of their scheduled hearings.
“I was so fearful that I was going to die in police custody,” one affected man said.
People have different rights when held in police cells compared to jail, where the Corrections Act provides provisions for inmates that the police manual does not.
This includes the right to be in the open air for at least an hour each day, the right to be provided with food that is adequate to maintain the health and wellbeing of the prisoner, and the right to be treated in a way that is appropriate to the person’s status as a person not serving a sentence.
The state amended the Bail Act in March 2025, leading to a rise in the number of people being held on remand.
The issue prompted the Victorian Ombudsman’s office to raise fears that the basic rights of Victorians on remand were at risk of being breached as those shuffled between police cells fell through accountability gaps.
The watchdog warned there was no independent oversight of the practice of “decanting” people between police cells.
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