Minogue v Dougherty  VSC 724
The Victorian Supreme Court has found that a prisoner’s rights to privacy and freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were violated when a book of philosophy addressed to him was returned to its sender, while dismissing other human rights claims about receiving and sending mail, and accessing photocopying services. While Justice John Dixon found that the plaintiff’s Charter rights were breached when the mail officer failed to turn her mind to his rights, he did not award damages as the plaintiff’s case had not made out a substantive breach of rights.
Craig Minogue was a prisoner serving his sentence at Barwon Prison. This judgement determined four proceedings, managed and heard together, which were each concerned with his rights as a prisoner serving to receive and send mail, under the Corrections Act 1986 (Vic) and Charter of Human Rights and Responsibilities Act 2006 (Vic).
The first matter related to the decision of Prison Officer Dougherty (the defendant in this matter), a mail officer, to seize an unsolicited pen pal letter to the plaintiff, which was later reaffirmed by the prison’s Governor, Mr Brett Ryan, on the basis that the letter posed a threat to prison security.
The second matter related to the decision by Mr Michael Trotter, an acting prisoner governor, to refuse to make 40 A3 photocopies of a newspaper article that the plaintiff intended to attach to his Christmas letter on the basis that it is was not an appropriate allocation of prison resources. By doing so, the plaintiff argued that Mr Trotter censored the letters and had acted improperly. Additionally, the plaintiff sent a copy of his Christmas letter to the prison’s Assessment and Transitional Co-ordinator which she did not receive.
The third matter related to a “bank account letter” sent from the plaintiff’s mother and an email from an unidentifiable sender who purported to be from a Pakistani university. Mr Ryan (the respondent in this matter) later determined that the letters may be released. The plaintiff sought orders for preliminary discovery to identify the officer which made the decision to stop the correspondence.
The fourth matter related to the decision of Officer Dougherty (the defendant in this matter) who returned to the sender a letter enclosing a copy of Descartes’ Meditations of First Philosophy addressed to the plaintiff. They were stopped on the basis that the sender was not on the plaintiff’s ‘list of approved visitors’.
In relation to the first, second and fourth matters, the plaintiff argued that the policies implemented and the decisions of the defendants unreasonably limited his “right to send and receive other letters uncensored by prison staff” under s 47(1)(n) of the Corrections Act 1986 (Vic) (the Corrections Act), and that his right to privacy under section 13 and right to freedom of expression under section 15 (2)(b) and (c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) had been unreasonably limited.
Justice Dixon declared that in deciding to return the Descartes book and accompanying letter to their sender, the prison mail officer failed to give proper consider to the plaintiff’s human right of privacy and of freedom of expression under the Charter. However, he rejected each of the plaintiff’s other claims.
The plaintiff failed in each matter in his Corrections Act claims, either because a breach was not made out or because he had identified the wrong defendant.
In the first matter, the Supreme Court dismissed the plaintiff’s application. Justice Dixon found that Mr Ryan, as Governor, had power under the Corrections Act and the Corrections Regulations 2009 (Vic) to stop or censor letters and Officer Dougherty was an employee acting under his instructions. As such, Mr Ryan had not delegated his power and Officer Dougherty only had power in respect of withholding the letter until, if and when, Mr Ryan as Governor “made or confirmed” that decision. Accordingly, he dismissed the claim because Officer Dougherty was not the appropriate defendant. The plaintiff had named her as the defendant even after Mr Ryan had offered to be named instead. Moreover, Justice Dixon declined to “settle the law” in relation to binding declaration about the “interaction between and operation of the provisions of the Act and Regulations, the policies and operating procedures and the Charter”, as the plaintiff had invited him to. Instead, in obiter dicta he noted that even if Mr Ryan was listed as the defendant, his decision to seize the letter was founded on an objectively assessed and reasonable belief that the mail posed a threat to prison security and may have been used to further an unlawful activity or purpose. Justice Dixon also noted that the Corrections Act should be interpreted broadly to allow a prison governor to take all reasonable steps to ensure the management, security and good order of the prison and the safe custody and welfare of its prisons.
In the second matter, Justice Dixon found that refusal to photocopy the newspaper article did not constitute censorship. He pointed to the fact the plaintiff was able to refer to the content of the article in his Christmas letters and would otherwise be able to arrange someone outside the prison to perform the photocopying function on his behalf. There was no obligation in law or policy that required the officers to make the copies. In relation to the letter sent to the Assessment and Transitional Co-ordinator, the Court held that the letter was not stopped or censored. By distinction, it was not delivered on the recipient’s request. The plaintiff could have hand delivered the letter to the coordinator at a later point in time.
In the third matter, the Supreme Court dismissed the plaintiff’s application on the basis that the officer would not be the proper defendant in any future proceeding. As discussed in relation to the first claim, relating to the bank account letter, Mr Ryan had not delegated his decision making and responsibilities and may be the defendant in any future proceedings. His Honour noted that the correspondence was not censored or stopped, let alone arbitrarily or capriciously stopped, and the delay in delivery was justifiable. Evidence from Mr Ryan that routine random inspections in accordance of the mail policy and the decision to withhold until a final decision relating to censorship was in accordance mail policy intended to protect prisoner welfare (as, for example, a bank account letter could be used to threaten or extort other prisoners).
In the fourth matter, the Supreme Court found that the acting prison governor, Mr Trotter, did interfere unlawfully with the plaintiff’s correspondence by adopting Officer Dougherty’s decision to return the letter and book to the sender. This was on the basis that Officer Dougherty in evidence conceded that the arbitrary reason of sender’s being on an approved visitor list was not consistent with the circumstances permitting interference in the Corrections Act. However, given that Officer Dougherty was acting under the instructions of the governor, Mr Trotter as acting prisoner governor would be the appropriate defendant in the matter.
In the first matter, the Supreme Court dismissed the Charter claim. The rights to privacy and freedom of expression of the plaintiff was not limited by the defendant, Officer Dougherty. Instead it was Mr Ryan as governor who decided to stop the letter. Regardless, Officer Dougherty and Mr Ryan lawfully stopped the letter in accordance with the Corrections Act. As such, the freedom of expression under sections 13 and 15 of the Charter was reasonably and proportionately limited by lawful means and not arbitrary interference.
In the second matter, Justice Dixon dismissed the plaintiff’s Charter claim on the basis that there was no limitation on the freedom of expression as no censorship occurred by refusing to photocopy the newspaper article or deliver the letter.
In the fourth matter, the Supreme Court found that the plaintiff’s right to privacy and freedom of expression had been interfered only to the extent that the public authority had failed to give proper consideration to the relevant human rights as required under procedural limb of section 38. As a government employee and, by extension, a public authority, Officer Dougherty had not considered the plaintiff’s rights under the Charter when she decided to make the irreversible decision to return the letter and book to the sender. Justice Dixon relied on an unsigned letter sent from prison staff to the sender which only referred to the purported policy that prisoners are only able to receive property from approved visitors as reasoning for the return. Moreover, he noted that proper consideration required under the Charter was of a “higher standard” under the Charter than statute or common law by Tate JA in Bare v IBAC (2015) 48 VR 129. The mere reference to the Charter in the relevant Deputy Commissioner’s Instruction and Local Operating Procedure was submitted as indicating Officer Dougherty’s proper consideration; Justice Dixon remarked that such statements were “superficial” and that it is “not enough to simply assert by a document” staff decision-making is compatible with the Charter. (While the prison governor was the appropriate defendant in other matters, here Officer Dougherty was the relevant public authority because her decision was irreversible.)
Although the plaintiff’s claim succeeded on this procedural limb of section 38(1) of the Charter, he failed to succeed on the substantive limb as Officer Dougherty did not herself act unlawfully, as the Charter claim requires consideration of whether the plaintiff’s rights were reasonably and proportionately limited under the Corrections Act. Officer Dougherty was not the relevant decision-maker under the Corrections Act; the proper contradictor would have been Mr Trotter as the acting governor. As such, declaratory relief was not awarded.
Although the claims under the Corrections Act and the Charter were addressed separately in the judgment, there is some interaction between the two Acts. The way in which the Charter impacts on the outcome of Corrections Act claims is more constrained. Although the Charter does not displace those rights in the section 47 of the Corrections Act, the courts are to interpret the Corrections Act in a manner consistent with the Charter. In the earlier case of Castles v Secretary to the Department of Justice (2010) 28 VR 141, Charter arguments were not determinative but did assist to advance the plaintiff’s claims under the Corrections Act. Justice Dixon did not examine this given that the Corrections Act claims were dismissed on other grounds.
By contrast, examination of the Corrections Act is central to the Charter claim analysis. By way of example, Justice Dixon’s obiter dicta in the first matter and ratio decidendi in the fourth matter considered whether the decision was made in accordance with the Corrections Act and therefore a proportionate and lawful limitation to the Charter rights.
In assessing incompatibility of section 38 of the Charter, Justice Dixon referred to the “road map” which he set out in the Certain Children v Minister for Families and Children (No 2)  VSC 251. The road map requires a court to consider a number of questions:
(a) is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take? (the relevance or engagement question);
(b) if so, has the public authority done or failed to do anything that limits that right? (the limitation question);
(c) if so, is that limit under law reasonable and is it demonstrably justified having regard to the matters set out in s 7(2) of the Charter? (the proportionality or justification question);
(d) even if the limit is proportionate, if the public authority has made a decision, did it give proper consideration to the right? (the proper consideration question);
(e) was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 32 of the Charter in a way that is consistent with the protected right (the inevitable infringement question).
When applied to the above Charter claims, Justice Dixon demonstrated the usefulness of the “road map” posed as a series of questions for consideration across three fact scenarios in one judgement. In particular, the fourth matter demonstrated the interaction between the procedural and substantive limbs of section 38(1), their interchargeability in the order of consideration and the ability to accommodating existing case law such as Castles in the “road map” rubric.
However, the case suffered from “mistaken identity”; the proper defendant was not identified in the first and fourth matter (despite Mr Trotter’s offer to stand in for Officer Dougherty in the fourth matter as this was declined by the plaintiff). As such, none of the claims were fully expounded through the “road map”. In particular, in the fourth matter, it could be inferred from the holding in relation to the Correction Act that it would have been open for the plaintiff to argue that Mr Trotter has interfered with the plaintiff’s right in contravention of the Charter. Consequently, Justice Dixon’s “road map” to interpreting section 38 remains to be deployed in full.
The full text of the decision can be found here.
Angela Chen is a lawyer on secondment to the Human Rights Law Centre from Ashurst.