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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haigh v Ryan

Details

AGLC: Haigh v Ryan [2018] VSC 474
Case: [2018] VSC 474
Decision Date: 24 August 2018

CaseChat Overview and Summary

The applicant, Haigh, sought judicial review of the decision by the respondent, Ryan, to refuse access to four Tarot cards for use in religious practice while Haigh was a prisoner. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the decision to deny Haigh access to the Tarot cards constituted an unreasonable limitation on his right to religious freedom and freedom of expression, as well as whether the decision was an unreasonable deprivation of humane treatment while deprived of liberty. Additionally, the court considered whether the application of a relevant prison policy was unlawful or unreasonable.

The court found that the decision to deny Haigh access to the Tarot cards was not an unreasonable limitation of his rights to religious freedom and freedom of expression. The court considered that the decision was based on reasonable grounds, such as security concerns, and that the restriction was proportionate to the legitimate aim pursued. The court also held that the decision did not amount to an unreasonable deprivation of humane treatment while deprived of liberty, as the restriction was a necessary measure to maintain security within the prison. The court further found that the application of the relevant prison policy was not unlawful or unreasonable, as the policy was consistent with the legislative framework and provided adequate safeguards for the protection of human rights.

In conclusion, the court dismissed the application for judicial review. The court held that the decision to deny Haigh access to the Tarot cards was not an unreasonable limitation of his rights to religious freedom and freedom of expression, and that the decision did not amount to an unreasonable deprivation of humane treatment while deprived of liberty. The court also found that the application of the relevant prison policy was not unlawful or unreasonable. No orders were made as the application was dismissed.

Orders