Haigh v Ryan
[2018] VSC 474
•24 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 02492
| PAUL STEVEN HAIGH | Plaintiff |
| v | |
| BRETT RYAN (IN HIS CAPACITY AS GOVERNOR OF BARWON PRISON) | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 24 August 2018 |
CASE MAY BE CITED AS: | Haigh v Ryan |
MEDIUM NEUTRAL CITATION: | [2018] VSC 474 |
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JUDICIAL REVIEW— Human rights — Prisoner — Religious freedom — Whether decision to refuse access to four Tarot cards unreasonably limited right to religious freedom — Freedom of expression — Humane treatment when deprived of liberty — Obligation to accord proper consideration to a relevant human right when making a decision — Claims for declaratory relief — Prison policies — Whether application of prison policy unlawful or unreasonable — Corrections Act 1986 ss 21, 47(1)(i); Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 14, 15, 22, 32(1) and 38(1); Corrections Regulations2009 reg 33.
HUMAN RIGHTS — Prisoner — Religious freedom — Freedom of expression — Humane treatment when deprived of liberty — Refusal of access to certain Tarot cards for purposes of religious practice — Whether refusal unlawfully limited rights — Proper consideration of human rights — Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 14, 15, 22, 32(1) and 38(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | - |
| For the Defendant | Mr L Brown | Victorian Government Solicitor’s Office |
HIS HONOUR:
The plaintiff is a prisoner in Barwon Prison serving life sentences for committing a number of murders. The defendant is the Governor, or General Manager, of the Prison.[1]
[1]Corrections Victoria no longer uses the term ‘Governor’ and instead the person occupying that position is called the General Manager. The General Manager of a prison is given broad powers under the Corrections Act 1986 and the accompanying Corrections Regulations 2009.
The plaintiff seeks judicial review of a decision of the defendant to refuse him access to cards in a deck of Tarot cards. He seeks orders to compel the defendant to remake the decision according to law. He relies on provisions of the Corrections Act1986 and the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’).
The plaintiff requested that the proceeding be determined on the papers and without an oral hearing, a course that the defendant did not oppose.
A dispute about Tarot cards might hardly seem worth a Supreme Court case. But it is the underlying issues that are important. The Parliament has given prisoners, even those convicted of the most terrible crimes, rights they can seek to exercise while in prison, one of which is the right to practise their religion. Section 47 of the Corrections Act contains 15 paragraphs listing prisoners’ rights and s 47(2) states that those rights are additional to, and do not affect, any other rights which a prisoner has under another Act or at common law. The rights in the Charter also apply to prisoners. The Court must resolve this dispute as no other Court or Tribunal in Victoria has jurisdiction to do so.
Corrections Victoria accepts and states in documents used to govern the operation of prisons that, in accordance with the laws passed by the Parliament:
Prisoner’s human rights are limited only to the extent that it is reasonably and demonstrably justified. All staff must act compatibly with human rights and consider human rights when making decisions.[2]
[2]See for instance Corrections Victoria – Public Prisons Deputy Commissioner’s Instruction No 3.07.
Because of the range of questions that prisoners’ rights can raise and the number of written prison policy statements that need to be considered, many legal arguments were raised in this case.
Background
The plaintiff practices what he describes as the Pagan religion and claims that his religious observance involves the use of Tarot cards. The defendant does not dispute that the plaintiff’s religious belief can be described as Paganism, that Paganism is to be regarded as a religion and that the use of Tarot cards can be an element of that religious observance.
The plaintiff did not attempt a simple definition of Paganism. The term is used to describe a wide variety of beliefs[3]. Many Pagan religions recognise the Divine in nature. That is why Corrections Victoria considers Paganism to be a Nature Religion. For instance, the plaintiff says that, as a Pagan, he does not try to divorce himself from any part of his fundamental physical processes, or his inseparable relationship with nature, the planet and the universe.
[3]Paganism has no connection with another meaning of the word ‘pagan’ which is irreligious.
Corrections Victoria recognises the right of prisoners to practise the religion of their choice, subject to the good order and security of the prison. It has particular procedures for prisoners who practise various religions. For instance Islam, Buddhism, Sikhism, Judaism and Christianity. Nature Religions are also recognised, of which Paganism is one.
Victorian prisons use policy documents, called Deputy Commissioner’s Instructions (‘DCIs’), which describe prisoners’ rights concerning religious practice.
These policy documents, including the DCIs, do not have the force of law. They are more in the nature of guidelines which are permissible as long as they do not fetter the administrator’s exercise of discretionary powers.[4]
[4]See Norbis v Norbis (1986) 161 CLR 513.
The plaintiff argued that the defendant had applied DCI 1.04 titled ‘Contraband and Controlled Items’ in a way that subordinates the operation of s 47(1)(i) of the Corrections Act and ss 14, 15 and 22 of the Charter.
DCI 3.07 titled ‘Religion’ states:
OUTCOME
Prisoners have the right to practice the religion of their choice, subject to good order and security of the prison.
Prisoners’ human rights are limited only to the extent that it is reasonably and demonstrably justifiable. All staff must act compatibly with human rights and consider human rights when making decisions.
OPERATING PRINCIPLES
Corrections Victoria recognises the contribution which the practice of religion and pastoral care make to the individual’s well being and stability in the community and supports the maintenance of such contact in the prison environment.
Staff will demonstrate and respect and support and will be mindful of others’ religious beliefs when dealing with prisoners, visitors and service providers.
1. PROCEDURES
1.1. General
Prison General Managers will:
· establish prison routines, staffing levels and facilities that allow prisoners to attend religious services on a regular basis inclusive of mainstream and minority denominations;
…
3.12.Religious and Spiritual Items, Hard Cover Religious Books and Publications
Religious and spiritual literature, including hard cover publications, may be brought into the prison subject to security requirements. If the prisoner is in management or a high security unit, the chaplain must obtain permission from the General Manager to provide the prisoner with hard cover books (which includes religious materials).
…
The Schedules to DCI 3.07 provide for religious observances in respect of a number of religions. Schedule 3.07(4) deals with ‘Religious Observance – Nature Religions’ and states:
This Schedule serves to provide basic guidance to staff on the general requirements for prisoners who observe Nature Religions.
1. Worship
The term ‘Nature Religions’ has been identified by the Australian Bureau of Statistics as a broad category of beliefs including Paganism, Animism, Druidism, Pantheism and Wiccan. E*Justice’s religious categories replicate this identification system.
Prayer and meditation are the main methods of worship for prisoners who identify themselves as believers of Nature Religions…
Prisoners may request the use of Tarot cards for meditation, however, Tarot cards are not an essential religious tool. Prisoners who request the use of Tarot cards can submit a Special Spend request to the prison General Manager. Staff are required to note that prisoners approved to purchase Tarot cards should be monitored as they are not to involve other prisoners. If it found that Tarot cards are being used for other purposes they can be removed from the possession of the prisoner and returned to the prisoner’s stored property.
…
Texts are to be made available to prisoners who observe Nature Religions who request them and they will need to be sourced by the Regional Liaison Chaplains (please note that there is no one ‘sacred scripture’). Advice about specialised texts can be sourced from Pagan Awareness, please contact the Projects Officer, Operations Directorate for details.
This Schedule dealing with Nature Religions also deals with ‘Food/Diet’, ‘Dress’, ‘Work’ and ‘Festivals’.
The plaintiff’s evidence about his use of Tarot cards
The plaintiff made many lengthy affidavits, which included details of his practice of Paganism and the importance of his use of Tarot cards. In essence, he states that Tarot cards are like a religious text or a ‘spiritual tool’. The defendant did not suggest that this evidence was a sham, or that it did not contain the plaintiff’s genuine beliefs, or that the Court should be sceptical about it. He was not cross-examined on his affidavits.
The plaintiff gave evidence that Paganism is a religion and that the use of Tarot cards is a recognised and well-established practice of that religion. According to his evidence, they are a contemplative doorway to access his inner-self and assist him in finding a deeper meaning. They are quite different from a deck of ordinary playing cards.
The images in the Tarot cards are deliberately put together to stimulate contemplation on their surface and deeper element. He uses them to contemplate on fundamental problems of life and his beliefs. They play an important part in the furthering of the plaintiff’s spiritual and religious pursuits and developments. An outsider should not be the judge of the relevance of the Tarot imagery to an individual’s spiritual and religious practice. The surreal imagery in the cards concerned was intended to hook the mind and pull it in certain directions. Believers in Paganism use a number of differently designed Tarot decks to consider different points of view. There are hundreds of versions of Tarot cards. He said that the relevant pack was ‘deliberately designed to stimulate the darker parts of the mind’. But he also described them as ‘benign’ stating that:
The crones etc., in the Deviant Moon Tarot are beneficent platforms from which to safely dive into the deep and dark end of the mind. They are intended as an opportunity to better understand the regions of the mind that generate personal woes, and contemplation of their unique forms enables a glide into, and out of, the fringe areas of the mind and life that are neglected to my detriment.
The surreal imagery of the crones etc., is not a malevolent aberration designed to corrupt innocent minds. Rather, it extends a welcoming hand in friendship, offering insights that refine us intellectually and morally. The images are rescuers, selflessly offering themselves for explorations that can lead to one’s extrication from ignorance, folly and evil. The cards are far from perversions, as in themselves they are harmless benefactors. They are designed to expand considerations, analysations, and meditations beyond the borders of traditional Tarot imagery.
The plaintiff argued that, by withholding the four cards in issue from a particular Tarot pack, the defendant removed its value and integrity as a spiritual and religious tool. Conventional Tarot packs contain 78 cards, with each card being an inseparable part of its functions. Removing cards from a pack could be likened to taking parts from an engine. A pack of Tarot cards is divided into two groups, one a group called the ‘Minor Arcana’ comprised of 56 cards, which are in turn divided into four sub-groups. The smaller of the two groups is called the ‘Major Arcana’, comprised of 22 cards. They are the more profound, important and instructional cards and are of primary interest to the plaintiff, who uses them for contemplation in conjunction with the letters of the Hebrew alphabet. The defendant withheld from the plaintiff both Major and Minor Arcana cards in the set, prevented him from using the set as a whole, and from using the now incomplete Major Arcana separately.
Facts
In late 2016, the plaintiff requested access to Tarot cards for his use as a ‘spiritual tool’. As the decks of cards were not available through ‘internal prison processes’, he had to submit a written request. In it, he specified three decks, in order of preference, that were available for purchase online and that he sought to acquire. His third choice was the Deviant Moon deck.
An Operations Manager at Barwon Prison received the plaintiff’s written request for the three sets of Tarot cards and sought advice from the Prison’s multi-faith chaplaincy officer with respect to Correction Victoria’s policy on Tarot cards. The Operations Manager referred the plaintiff’s request to the General Manager of Barwon, Mr B Ryan (the defendant).
Mr Ryan refused the plaintiff’s request in January 2017. He later stated that:
I refused Mr Haigh’s request because I considered he could use the Tarot cards in a way that could undermine the security and good order of the prison, such as conducting readings for other prisoners. This could undermine the security and good order of the prison because, in my experience, Tarot readings could be used to prey on or manipulate vulnerable prisoners (such as those with mental illness), could unsettle prisoners or could encourage or cause unrest in prisoners. Ensuring that security and good order of the prison and the safety and welfare of prisoners, staff and visitors underpins all my decision-making as Barwon General Manager.
In February 2017, the plaintiff complained to the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) about Mr Ryan’s refusal to allow him access to Tarot cards. Mr R Wise, Deputy Commissioner of Operations, Corrections Victoria, advised Mr Ryan that the plaintiff should have access to the Tarot cards on the basis that they were necessary for the practice of his religion.
In April 2017, the package containing the three sets of Tarot cards arrived at Barwon Prison. Mr Ryan advised Mr Wise that he would issue the plaintiff with one deck of Tarot cards at a time, and that the other two would remain in the plaintiff’s stored property outside of his cell, with the plaintiff having the option to swap over the decks. Mr Ryan states that he made this decision on the basis of DCI 4.08 which is titled ‘Prisoner Property’ and states in part:
1.4 Prison Property Retained in Cell
The retention of private property in a cell is considered a privilege. The amount and nature of private property articles is determined by the General Manager, based upon:
·An authorised cell property allowance for a unit or prison; and a personal cell property allowance based upon a points system to a determined maximum point allowance for the unit or prison in which the prisoner is accommodated…
·The General Manager of each prison will ensure a system is in place to deter the accumulation of property in cell that does not attract cell points (toiletries, consumable canteen items, etc).
…
Mr Ryan told the Barwon Prison Operations Manager, Mr L Doherty, that the plaintiff could be issued with one deck of Tarot cards, and the other two were to be placed in his stored property. But, for unexplained reasons, the plaintiff received two decks of Tarot cards and one was placed in his stored property.
Next, Mr Doherty showed Mr Ryan four Tarot cards from the ‘Deviant Moon’ deck which he considered were ‘objectionable material’ within DCI 1.04. The four cards each bear an abstract, mystical illustration of an other-worldly female character displaying breasts, sometimes more than two. The plaintiff rejected any suggestion that they had anything to do with family violence and disrespect for women and argued they were incapable of offending a reasonable person.
The images on the cards are titled: Temperance, Empress, Queen of Wands and 5 of Pentacles. The plaintiff described them as ‘benign’ images. He stated that the Deviant Moon Tarot:
resonated with my sense of spiritual Self in relation to my Pagan thought, conscience, religion and belief at this point in time. I believe that I may learn a lot from the Deviant Moon Tarot, and my being restrained from accessing it harms my inner spiritual and religious life.
DCI 1.04 titled ‘Contraband and Controlled Items’ governs ‘objectionable material’ and states that a prison’s General Manager may:
refuse or limit the entry of anything which may threaten the security or good order of the prison or the safety or welfare of a prisoner, staff or visitors.
The DCI refers to reg 33 of the Corrections Regulations which lists items that are not permitted in prisons. It also forbids entry of ‘any other substance or article which may threaten the safety or security of the prison’.[5]
[5]Corrections Regulations 2009 reg 33(1)(n).
The plaintiff argued that the terms ‘contraband’ and ‘objectionable material’ do not appear in the Act or Regulations.
Schedule 1.04(2) of the DCI provides that prisoners, visitors, staff and contractors are banned from having restricted publications, such as pornography and ‘objectionable material’. The latter term is defined under DCI 4.08A titled ‘Prisoner Property – Pornographic and Objectionable Material’ in the following terms:
2. Definitions
For the purposes of this Instruction, ‘objectionable material’ includes text, images or audio visual materials that describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena...
Similarly, ‘pornographic’ means the explicit description or display of sexual material in literature, films and other media intended to stimulate erotic rather than aesthetic or emotional feelings and includes any erotic pictorial or media representation of male or female genitalia or women’s breasts.
DCI 1.04(2) also states:
3.2 Items not accepted into property
Staff receiving or issuing prisoners’ property may refuse to accept or issue material deemed to be ‘objectionable’, with any such decisions being reviewable, if necessary, by an Operations Manager.
Each of the DCIs contain introductory paragraphs titled ‘Outcome’, stating:
Prisoners’ human rights are limited only to the extent that it is reasonably and demonstrably justifiable. All staff must act compatibly with human rights and consider human rights when making decisions.
Mr Ryan made his decision to withhold the four cards because he believed they contained objectionable material. He explained:
I agreed with Mr Doherty that, by reference to DCI 4.08A, the subject cards were objectionable and there was no reason to depart from the policy established by Regulation 33 and DCIs 1.04 and 4.08A. Apart from my concern about Mr Haigh having ‘objectionable material’ in his prison cell and what Mr Haigh might do with the cards, I was also concerned about workplace health and safety concerns for my staff that might arise, for example, if prison staff members came across the subject cards when searching Mr Haigh’s cell. Some staff members could be offended by the subject cards. I considered that the cards should be withheld in accordance with Regulation 33 and DCI No. 1.04. I therefore told Mr Doherty not to issue Mr Haigh with the subject cards.
After being informed of the decision to withhold the four cards, the plaintiff wrote to Mr Ryan requesting reasons for his decision to withhold them.
On 22 June 2017, Mr Ryan responded by letter to the plaintiff stating that he could keep the two sets of Tarot cards that he currently had in his cell, but that the four cards were marked as ‘not to be issued’ as they contained objectionable material, pursuant to DCI 1.04 He refused to provide the plaintiff with a photocopy of the cards, although he has since been shown them. They have been exhibited to an affidavit filed with the Court. The letter’s final paragraph stated:
I would consider yourself lucky, as the original decision was to allow you to purchase one set of Tarot cards only, however, you may keep the two sets in your in-cell property.
On 6 July 2017, Mr Wise wrote in reply to letters from the plaintiff stating:
I have seen copies of these cards, and accept that there are transient images on free-to-air television that are more erotic than those more enduring images on the cards. I do not, however, accept your submission that they are essentially ‘rarefied’ images: they could very well be seen to be demeaning of women at a time when our focus is very much on family violence and respect for women.
I do not, therefore, propose to ask Mr Ryan to reconsider his decision, and on the basis that you have two other sets of Tarot cards in your possession, access to the third set would arguably appear to be less critical.
The Corrections Act and Regulations
Section 1(a) of the Corrections Act states that one of its purposes is to provide for the establishment, management and security of prisons and the welfare of prisoners. Other relevant provisions are:
20 Duties relating to security and welfare
(1) An officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison.
(2) An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners.
(3) An officer must not jeopardize the security of the prison.
…
21 Duties of Governor
(1)The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.
…
22A Powers of Governor
(1)A Governor has and may exercise all or any of the powers or functions of a prison officer or escort officer under this Act.
…
As mentioned, the Corrections Act also deals with the rights of prisoners and states:
47 Prisoners Rights
(1) Every prisoner has the following rights —
…
(i)the right to practise a religion of the prisoner’s choice and, if consistent with prison security and good prison management to join with other prisoners in practising that religion and to possess such articles as are necessary for the practise of that religion;
…
The Corrections Regulations deal with the entry of property into prisons by stating:
33 Entry of property
(1)For the purposes of the management, good order and security of a prison, entry of the following unauthorised substances or articles to a prison is prohibited—
(a) weapons;
(b)drugs of dependence;
…
(n) any other substance or article which may threaten the safety or security of the prison.
The plaintiff’s case is principally based on allegations of breaches of human rights conferred by the Charter (see grounds 16, 17 and 21 to 25 and 27) and by s 47(1)(i) of the Corrections Act (see grounds 14 -16, 18, 25-27). I shall deal with each in turn.
The Charter rights
As a preliminary point, the plaintiff argued that Paganism should be accepted as a religion. This characterisation was not disputed by the defendant and I accept the argument for the purposes of this case.
The plaintiff argues that because of the withholding of the four cards, the Tarot pack is incomplete and cannot be used and that this is an unlawful limitation on his right to freedom of thought, conscience, religion and belief contained in s 14 of the Charter; his right to freedom of expression contained in s 15 of the Charter; and his right to humane treatment during imprisonment contained in s 22 of the Charter.
While the Corrections Act and the Corrections Regulations provide the legislative basis for prison governance and management in Victoria, s 38(1) of the Charter makes it unlawful for a public authority to act in a way that is incompatible with human rights or to fail to give proper consideration to a relevant human right. The defendant has conceded that he is a ‘public authority’ within the meaning of the section.
Charter provisions
The relevant Charter provisions are extracted below:
1 Purpose and citation
…
(2)The main purpose of this Charter is to protect and promote human rights by —
…
(c)imposing an obligation on all public authorities to act in a way that is compatible with human rights;
7Human rights—what they are and when they may be limited
(1)This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
14 Freedom of thought, conscience, religion and belief
(1) Every person has the right to freedom of thought, conscience, religion and belief, including –
(a) the freedom to have or to adopt a religion or belief of his or her choice; and
(b)the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
(2)A person may not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
15 Freedom of expression
(1)Every person has the right to hold an opinion without interference.
(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether—
(a)orally; or
(b)in writing; or
(c)in print; or
(d)by way of art; or
(e)in another medium chosen by him or her.
(3)Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—
(a)to respect the rights and reputation of other persons; or
(b)for the protection of national security, public order, public health or public morality.
22 Humane treatment when deprived of liberty
(1)All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2)An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.
(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.
32 Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Actions inconsistent with Charter rights
The plaintiff and defendant referred to the judgments of John Dixon J in Minogue v Dougherty[6] and Certain Children v Minister for Families and Children (No 2),[7] which proposed five questions for the determination of whether a public authority has acted incompatibly with a human right recognised by the Charter. They are:
(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).
[6][2017] VSC 724 [74].
[7][2017] VSC 251 [174].
Human rights acknowledged by the Charter are not absolute and may be subject to limitation in accordance with ss 7(2) and 15(3). Section 15(3) specifically provides for lawful restrictions on the freedom of expression right for the purposes of, inter alia,[8] ‘lawful restrictions reasonably necessary to respect the rights and reputation of other persons’.
[8]Protecting national security, public order, public health or public morality.
Section 14
The right to freedom, thought, conscience and religion has many features. Mason ACJ and Brennan J, when dealing with the status of scientology, wrote that:
Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society.[9]
[9]Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120, 130 (Mason ACJ and Brennan J) (‘Church of the New Faith’).
Two of those features, which are recognised by s 14, are the freedom to have or to adopt a religion or belief; and the freedom to demonstrate that religion or belief. The plaintiff argued that the defendant’s conduct in refusing him access to the four cards offends the latter limb of this right, by restraining or interfering with his religious practice. Section 14(1)(b) of the Charter specifically states that that right protects:
the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
As previously mentioned, Corrections Victoria accepts that:
Prisoners have the right to practise the religion of their choice, subject to the good order and security of the prison.
Corrections Victoria accepts that Tarot cards can be used as part of the practice of a Nature Religion. Again as previously mentioned, DCI 3.07 ‘Religion’ states that:
Prisoners may request the use of Tarot cards for meditation, however, Tarot cards are not an essential religious tool.
The plaintiff’s evidence was that his use of Tarot cards forms part of his religious practice and that the withholding of the four cards interferes with it. His evidence of the connection between his use of the Tarot cards and his religious practice was not challenged.
The defendant disputed that the plaintiff’s rights under s 14 were ‘engaged’ by the withholding of the four cards. He argued that the plaintiff was able to practise his religion with Tarot cards that did not contain objectionable material. On the plaintiff’s own evidence, there are hundreds of different Tarot card packs available for purchase, many of which do not contain material that might be considered objectionable under Prison policy, although he says that he does not have the means of accessing them. The plaintiff possesses about three other such packs as part of his allocated prison property. On this footing, the defendant submits that the denial of the four cards did not interfere with or limit the his right to practise his religion. These submissions are more relevant to the second issue, which I next consider: whether the plaintiff’s right has been limited.
The defendant’s argument is that the four cards contain no essential element of the plaintiff’s religion – they are an aid to the practice of his religion, but no more. The plaintiff’s evidence is that a pack of Tarot cards can only be used if all cards are available.
I consider that courts and administrators should be extremely wary about determining what is required for a person to practise their religious beliefs. It is usually not part of the judicial function to determine such a question. Generally, people can choose the set of beliefs, practices and observances which they accept, even if they are gullible or misled.[10]
[10]Church of the New Faith (1983) 154 CLR 120, 132 (Mason ACJ and Brennan J) and 176 (Wilson and Deane JJ).
It may be particularly difficult to determine what is required for a person to practise a religion like Paganism, which is a Nature Religion, that appears to contain no universal creed or canon of beliefs and which does not have one accepted sacred book. A court or administrator should be slow to determine that the removal of a religious tool or artwork which a person wishes to use does not engage or limit their human right of religious freedom.
Once it is established that the Tarot cards are part of the plaintiff’s religious practice, then the s 14 Charter right does not cease to be engaged because the plaintiff has other means of carrying out his religious practice.
I accept that the use of Tarot cards, including the four Tarot cards in issue, can be a ritual associated with the practice and observance of the plaintiff’s religion. I consider that, on the assumed footing that Paganism is a religion, the withholding of the four Tarot cards which the plaintiff wishes to use does engage his right of religious freedom and belief. I consider that the withholding of the cards is a limitation on the exercise of his religious right, though a relatively minor one.
The next question is whether that limit is reasonable and demonstrably justified having regard to the matters set out in s 7(2) of the Charter. That subsection requires that the reasonable limitation be demonstrably justified in a free and democratic society based on human dignity, equality and freedom taking into account all relevant factors including five that are listed, the first of which is ‘the nature of the right’. The other four are the importance and the purpose of the limitation, the nature and extent of the limitation, the connection between the limitation and the right, and whether there are any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.[11]
[11]See Charter ss 7(2)(a)-(e); Sabet v Medical Practitioners Board (2008) 20 VR 414 [186]-[191] (Hollingworth J).
The determination of this question requires consideration of the defendant’s reasons for withholding the four cards. I approach this issue recognising that, under the Corrections Act, the Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.[12] Due weight should be given to Mr Ryan’s views about such matters and his views about the provision of Tarot cards to the plaintiff. Courts generally give full scope to the power of correctional authorities to carry out prison administration and management in accordance with law.[13]
[12]Corrections Act 1886, s 21(1).
[13]Anderson v Pavic [2005] VSCA 244 [33] (Nettle JA).
I accept that a number of aspects of Mr Ryan’s evidence provide a justification for the withholding of the four cards that, in the abstract, might be said to be reasonable. Thus, the cards may be used to influence other prisoners and could offend some prison staff, although to a minor degree. Mr Ryan was not cross-examined on that evidence. His decision cannot be said to be unreasonable in the legal sense. Objectionable material can be a threat to prison management and hence falls within the terms of reg 33(1)(n).
Viewed in isolation, away from their use in the prison environment, the images on the four cards may not seem particularly offensive, let alone pornographic. But their use in a prison environment, where there are restrictions on what can be read and viewed, is another thing.
However, importantly for the determination of this case, the Charter by s 7(2) requires that limitations on recognised rights consider the nature of the right as part of the determination of whether the decision was a reasonable and demonstrably justified limitation on that right. All of the matters which I have set out in paragraphs 61 and 62 might have justified the defendant’s decision if he had considered the plaintiff’s rights as s 38(1) with s 7(2) of the Charter required. However, the actions of a public official are unlawful pursuant to s 38(1) of the Charter if they are incompatible with the rights contained in the Charter or, if in making a decision, that official fails to give proper consideration to a human right.
The defendant accepts that he did not expressly consider the plaintiff’s Charter rights in his reasons. Neither did he give evidence that he had considered those rights.
The plaintiff alleges that the defendant’s reasons fail to demonstrate that the defendant adequately considered his Charter rights and his right under s 47(1)(i), which I consider below, and that this is an ‘error on the face of the record’. Specifically, the plaintiff submits that the reasons do not identify the power relied upon by the defendant in deciding to withhold the subject cards. He argues that Mr Ryan’s reasons also reveal that the decision was made in error because it was based on the potentially ‘objectionable’ content of the four cards, and that that basis is not found in statute.
The plaintiff contends that the evidence suggests that the defendant did not properly consider the right conferred by s 14. The defendant was obliged by s 38(1) of the Charter to give proper consideration to relevant human rights of the plaintiff unless as a result of a statutory provision he could not reasonably have acted differently or made a different decision. The statutory provisions contained in the Act and the Regulations could not be so described. The requirement of ‘proper consideration’ under s 38(1) was considered in Castles v Secretary to the Department of Justice,[14] where Emerton J stated that:
The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.[15]
[14][2010] VSC 310 (‘Castles Case’).
[15]Castles Case [2010] VSC 310 [185].
In Bare v Independent Broad-Based Anti-Corruption Commission, Tate JA described s 38(1) of the Charter as imposing a higher standard than the obligation on a decision-maker to take into account a consideration under common law or statute.[16] Proper consideration also requires a decision-maker to have seriously turned their mind to the possible impact of the decision on the affected person’s human rights and the implications for that person.[17]
[16](2015) 48 VR 129, 226 [235].
[17]Castles Case [2010] VSC 310 [185]-[186].
The defendant accepts that his decision contains no references to human rights. It appears that he did not consider the human rights recognised in s 14. Although he made affidavits, he did not state that he considered human rights. As Garde J said in Certain Children v Minister for Families and Children[18]:
This is not a case where there is doubt as to whether the consideration given was proper consideration. Rather there is no sign that any consideration was given to Charter rights or human rights at all.[19]
[18](2016) 51 VR 473.
[19](2016) 51 VR 473, 510 [202]. See also Minogue v Doherty [2017] VSC 724 [92].
I therefore find that the defendant’s decision was unlawful and involved an error of law on the face of the record, because of its failure to consider the rights contained in s 14 of the Charter.
Section 15
The plaintiff, in his second argument based on Charter rights, contends that the denial of the four subject cards offends his human right to freedom of expression as contained in s 15 of the Charter. He submits, and the defendant accepts, that the ‘relevance’ or ‘engagement’ question associated with that human right occurred or exists because the defendant withheld the four Tarot cards. Section 15 recognises the plaintiff’s right to receive and impart information and ideas of all kinds, including in print or by way of art. This description would include the withheld Tarot cards. The plaintiff submits that the protections provided by this human right extends to material or ideas that may ‘offend, shock or disturb the state or any sector of the population’. He argues that the curtailment of this right was without justification and that it was unreasonable for the defendant to conclude that the four cards withheld could be called ‘objectionable’ within the meaning of DCI 4.08. He refers to instances of other prisoners being allowed Tarot cards containing similar images to those withheld from him and relies on an affidavit sworn by Craig Minogue in that respect.
The defendant submitted that the curtailment or limitation of the plaintiff’s enjoyment of this right was lawful, as it was reasonable and justifiable in the circumstances for the purposes of s 7(2) and was a lawful limitation under s 15(3).
The defendant formed the view that the cards fell within the ambit of reg 33. He considered that the cards contained ‘objectionable material’ as prescribed by DCIs 1.04 and 4.08A. Those Instructions make clear that pornographic or objectionable material is a threat to prison management, security and good order. The defendant argued that he held the opinion that the withheld cards would threaten the management, good order and security of the prison. Any restriction on the plaintiff’s s 15 rights occurred by the operation and application of reg 33, that being a lawful restriction within the meaning of s 15(3) of the Charter. He argued that the statutory regime established under the Corrections Act is crafted to balance the rights of convicted persons with victims, those who are responsible for their detention, and society at large. The defendant was therefore operating within the statutory framework established by the Corrections Act, which affords the General Manager of a prison the discretion to determine what is ‘objectionable’ under reg 33.
In Minogue v Dougherty,[20] John Dixon J considered the censoring of mail in Barwon Prison to be a lawful restriction on the right contained in s 15 because the mail regime operated within the statutory framework of the Corrections Act. Because of the adherence to this statutory framework, the prison’s action in censoring mail was a lawful limitation of the freedom of expression under s 15(3) of the Charter.[21]
[20][2017] VSC 724.
[21]Minogue v Dougherty [2017] VSC 724 [79].
For similar reasons to those given in respect of the right contained in s 14, I am not satisfied that the limitation on the s 15 right arising from the withholding of the four cards was lawful. The defendant did not consider the plaintiff’s rights contained in s 15. Regulation 33 and the defendant’s other powers contained in the Act had to be interpreted in a way that was compatible with human rights so far as that was possible consistently with their purpose. Section 32 (1) of the Charter required that to occur. The proper consideration of the plaintiff’s rights may have altered the defendant’s conclusion that the cards were objectionable. The defendant failed to consider the plaintiff’s human right in accordance with s 38(1). Section 15(3) permits the right of freedom of expression to be subject to lawful restrictions reasonably necessary to respect the rights and reputations of other persons and for the protection of national security, public order, public health or public morality. However, if the defendant was to rely on s 15(3), he was required to balance the right against the restriction of it permitted under the subsection. There is no indication that the decision-maker carried out that balance or evaluation.
The defendant appeared to accept that there was no evidence that he expressly considered the plaintiff’s s 15 or other Charter rights. His written decision, which is part of the record, contains no reference to the plaintiff’s human rights.
As with my conclusion in respect of the right under s 14, the failure to consider the human right in s 15 means that the decision of the defendant to withhold the cards was unlawful under s 38(1) of the Charter and involved an error of law on the face of the record.
Section 22
The third Charter right on which the plaintiff relies is the right recognised by s 22. He alleges that his dignity was affected by the removal of the subject cards in breach of the human right contained in s 22. He states that:
The dignity right very much protects my right to have a reasonable space in my own mind, and to engage in behaviours to give effect to a spiritual and religious inner life.
My dignity as a person is only respected if I am allowed a reasonable avenue of finding self-worth, and my spirituality allows me to maintain a more positive state of mental health than would otherwise be the case.
I do not consider that the plaintiff has established that his dignity right has been curtailed by the withholding of the cards.
Section 22(1) applies to all persons who have been deprived of liberty, whether convicted of a crime or otherwise. It requires that they must be treated with humanity and respect for their inherent human dignity. It requires positive action by those entrusted with detaining other persons to do so in a way that does not offend their human dignity.[22]
[22][210] VSC 310 [93].
The defendant contends that the withholding of the cards does not interfere with the plaintiff’s dignity or his right to be treated humanely in detention and that the right was not ‘relevant’ or ‘engaged’. There was nothing to suggest that by being prevented from accessing four Tarot cards, when hundreds of other sets are available, that any interference with his right to be treated humanely occurred.
Emerton J, in Castles Case,[23] warned against conflating the rights contained in s 22(1) of the Charter with those in s 10(b) of the Charter, which prohibits treatment or conditions of persons in detention of the most inhuman kind.
[23]Ibid 32 [99].
The defendant submitted that s 22(1) is intended to protect individuals in detention by mandating ‘good conduct’ and by requiring a departure from humane conduct to be justified and not be arbitrary. Section 22(1) does not create a benchmark of intolerable behaviour in the way that s 10(b) does. Rather, it requires that treatment and conditions be humane in the circumstances and that, other than those necessarily infringed by their detention, any departure from the rights of individuals in detention must be justified and necessary, even if such a departure would not rise to the level of rendering the conditions cruel, inhuman or degrading.
The dignity right is not absolute, but is limited by the necessary conditions of a prison, where the secure operation of the facility and the safety of the staff must be balanced against this right. For example, the imposition of a smoking ban in a mental health hospital was held not to interfere with the dignity right of an involuntary detainee.[24]
[24]De Bruyn (by his litigation guardian De Bruyn) v Victorian Institute of Forensic Mental Health (2016) 48 VR 647.
In Certain Children v Minister for Families and Children,[25] Garde J considered the authorities, both Australian and international, concerning the right contained in s 22 and stated:
The dignity right in s 22(1) of the Charter recognizes the vulnerability of all persons deprived of their liberty. It also acknowledges the important principle when assessing when assessing whether there has been a limitation on this right, namely that prisoners should not be subject to hardship or restraint other than the hardship or restraint that results from the deprivation of liberty.[26]
[25](2016) 51 VR 473 and on appeal Minister for Families and Children v Certain Children (2016) 51 VR 597 and Certain Children v Minister for Families and Children (No 2) [2017] VSC 251 (John Dixon J).
[26](2016) 51 VR 473, 504 [172].
The act of detention alone cannot be said to infringe s 22, but the specific conditions under which that detention is carried out can. The plaintiff is detained, placing him in a class of vulnerable persons and the Governor has a welfare responsibility to him.
The authorities suggest that the impugned conduct must have some severity for it to amount to a violation of s 22(1). Notwithstanding the ambit of s 22 and the prima facie onus that the defendant bears to justify any conduct that negatively affects an individual’s conditions of detention, I am not persuaded that the withholding of the four Tarot cards engages or curtails his s 22 Charter right.
Welfare Issues (Grounds 12, 13 and 18)
The plaintiff is detained, placing him in a class of vulnerable persons. The plaintiff relies on the obligation of the defendant and prison authorities to guard his welfare, that is provided for in s 1(a) and 21(1) of the Act and integrated into other provisions. In effect, he contended that the defendant breached this obligation by denying him the four cards. He said that the DCI policies are used by the prison authorities as a matter of systematic practice to go beyond the law. He pointed to the fact that other persons had had access to four sets of Tarot cards.
I do not consider that the withholding of the four Tarot cards could be said to breach the statutory provisions relied on or be a failure of responsibility for the welfare of the plaintiff as a prisoner. The Governor’s obligations in that regard is only part of his responsibilities as he is also responsible for the management, security and good order of the prison. I consider that this welfare argument does not add anything of substance to the plaintiff’s arguments based on Charter rights. The withholding of the four cards did not breach the defendant’s welfare obligations to the plaintiff, as that duty has to be considered in conjunction with the defendant’s wider duties.
Religious freedom under the Corrections Act
A second basis for the plaintiff’s claims is the rights contained in s 47(1)(i) of the Corrections Act. He claims that the defendant’s withholding of the Tarot cards impermissibly limited his right to ‘practise a religion of [his] choice… and to possess such articles as are necessary for the practice of that religion’, pursuant to s 47(1)(i) of the Corrections Act.[27]
[27]Plaintiff’s Submissions dated 15 December 2017 [28], [39],[40].
The plaintiff argued that the decision of the defendant to withhold the Tarot cards was made on the sole basis of DCI 1.04 without any consideration of the operation of his relevant rights given by the Corrections Act and the Charter. The DCI policy has no force of law and cannot go beyond the operation of the statute. He contends that the defendant applied the policy document in a way that subordinated the operation of s 47(1)(i) of the Corrections Act and ss 14, 15 and 22 of the Charter. He said that the prisoner authorities had taken the view that he should ‘consider [himself] lucky’ that he had received any Tarot cards at all.
The defendant submitted that the impugned conduct does not limit the plaintiff’s right to practise his religion and that he is not entitled to the remedy that he seeks.[28] Even if one accepts that Tarot cards are ‘necessary’ for the practice of Paganism, the plaintiff has access to them and is in possession of about three decks. The four cards are not themselves necessary for that religion.
[28]Defendant’s Submissions dated 30 January 2018 [25].
Analysis
As Emerton J said, the word ‘necessary’ in s 47(1)(f) ‘imposes a high threshold’.[29] Those observations also apply to the word ‘necessary’ in s 47(1)(i). The word ‘necessary’ often means ‘that which cannot be dispensed with’.[30]
[29]Castles Case [2010] VSC 310 [117].
[30]Macquarie Dictionary (7ed, 2017) vol 2, 1003.
While, as I have previously stated, court and administrators should be very wary of determining the boundaries of what is required for the practice of religion, the question of whether something is ‘necessary’ for that practice is a different issue. I do not consider that the particular Tarot cards withheld are necessary for the practice of the plaintiff’s religion of Paganism. In my opinion, the test of ‘necessity’ establishes a higher standard for a plaintiff to establish than the question of whether a human right such as that contained in ss 14 or 15 of the Charter has been unlawfully limited.
Nor do I consider that the plaintiff has been prevented from practising a religion of his choice within the meaning of s 47(1)(i). When read as a whole, paragraph (i) deals with religious articles, ‘as are necessary for the practice of that religion’. I have explained in the previous paragraph, why the four withheld Tarot cards were not ‘necessary’ for the practice of the plaintiff’s religion.
To avoid any possible misunderstanding, I add that the application of s 47(1)(i) involves different questions than the application of the Charter rights, particularly those in s 14. That Charter right was engaged and required consideration regardless of whether the Tarot cards as religious articles were not ‘necessary’ for the practice of his religion.
The DCIs
I do not accept the plaintiff’s attack on the defendant’s reliance on the DCIs or the argument that the defendant has substituted terms such as ‘objectionable’ for the words of the Act and Regulations. As previously stated, the defendant Governor is given wide powers not least by s 21 and the remainder of Part 6 of the Act. The powers given to him by the Act are not limited by the terms of the Regulations, although they make clear the existence of specific powers, for instance in reg 33. The defendant was entitled to adopt guidelines in the form of DCIs, to facilitate the everyday running of the Prison. The DCIs are only guidelines. I do not see them in their terms or in their application as restricting the discretions or powers of the defendant.
Conclusion
The defendant submitted that there was no duty imposed on Mr Ryan to allow a prisoner access to any particular item of property, or even to consider whether to do so, and as a result there was no justification for issuing an order in the nature of mandamus. He also submitted that certiorari could not be granted because his decision has no continuing legal effect as it did not stop him from making a different decision.
However, when a decision is unlawful for a failure to give proper consideration to human rights, the Court may make an appropriate declaration and set aside the decision when an error appears on the face of the record. The Court may also order the decision-maker to remake the decision.[31] I consider those orders appropriate in this case.
[31]Bare v IBAC (2015) 48 VR 129, 55-57 [150]-[152] (Warren CJ), 255 [642] (Santamaria JA).
The plaintiff claimed a wide range of declarations and other judicial review remedies to reflect any claims upon which he might succeed. A number of the proposed declarations state matters which are not in dispute, e.g. whether Paganism is a religion, and about which declaration should therefore not be made.
In my opinion, the plaintiff is only entitled to a declaration that the defendant’s decision to withhold the four Tarot cards from him was unlawful for failure to comply with s 38(1) of the Charter, as well as an order in the nature of certiorari issuing for error of law on the face of the record setting aside the defendant’s decision contained in his letter of 22 June 2017. The plaintiff’s application for access to the four withheld Tarot cards must be reconsidered in accordance with law.
Finally, I note that my decision requires implementation of the legal obligations that Corrections Victoria acknowledges in its printed Deputy Commissioner’s Instructions, that in making decisions, prisoners’ human rights are to be limited only to the extent that is reasonably and demonstrably justifiable.
I do not decide that the plaintiff is entitled to all Tarot cards that he requests, but that when he requests them for religious practice, his rights acknowledged by the Charter must be given proper consideration in the making of the decision about the request.
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