McCabe v Westin; McCabe v Pickering

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 02537

ROWAN LEIGH McCABE	Plaintiff
v
MELISSA WESTIN	Defendant

S ECI 2023 02539

ROWAN LEIGH McCABE	Plaintiff
v
PHILLIP PICKERING	Defendant

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13, 15 December 2023
DATE OF JUDGMENT:	28 March 2024
CASE MAY BE CITED AS:	McCabe v Westin; McCabe v Pickering
MEDIUM NEUTRAL CITATION:	[2024] VSC 145

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JUDICIAL REVIEW – Prisons - Access to ‘in-cell’ computer – Participation in contact visiting programme authorised under Corrections Act1986 (Vic) – Seizure of computer following misuse – Charge and hearing of prison offence with guilty finding and monetary penalty – Prison authorities’ refusal to reinstate in-cell computer access – Withdrawal of access to contact visiting programme – Whether decisions constitute unauthorised additional punishment for prison offence – Whether decisions were made for an improper purpose – Whether prisoner was accorded procedural fairness – Whether decisions were legally unreasonable – Whether approval of contact visiting programme by instrument ultra vires – Whether decisions were incompatible with Charter of Human Rights and Responsibilities Act 2006 (Vic) – Corrections Act 1986 (Vic), ss 20, 21, 37, 38, 45, 46, 47, 53(4) – Corrections Regulations 2019 (Vic), regs 33, 65, 67-74, 79, 94 – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 15, 17, 20, 25, 26 – Kaufman v Smith (2001) 124 A Crim R 259.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For Melissa Westin	Mr L Brown SC with Mr N Petrie	Russell Kennedy
For Phillip Pickering	Mr L Brown SC with Mr N Petrie	Russell Kennedy

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The issues and factual context......................................................................................................... 2

Procedural and evidentiary issues.................................................................................................. 6

Relevant procedural background............................................................................................... 6
Disclosure regarding previous work for Corrections Victoria and recusal application.... 7

The challenged decisions............................................................................................................... 12

Access to computers for personal use by prisoners in their cells........................................... 13

Statutory basis for ‘in-cell’ computer access........................................................................... 14
Corrections Victoria policy governing access to in-cell computers..................................... 18
The status of Commissioner’s Requirements................................................................ 18
The relevant contents of Commissioner’s Requirement 2.1.2..................................... 19

Other Corrections Act provisions relevant to the in-cell computer access issues............. 21
Provisions relevant to search and seizure...................................................................... 21
Governor’s disciplinary hearings.................................................................................... 22

Decisions alleged to have been made with respect to computer access............................. 25
Pickering Computer Grounds................................................................................................... 26
Mr Pickering’s authority with respect to the computer............................................... 27
Did Mr Pickering make a decision as to the computer or fail to exercise powers to deal with the computer?......................................................................................................... 30
Availability of relief against Mr Pickering with respect to the computer................. 31
Are orders in the nature of certiorari or mandamus available?................................. 32
Discretionary refusal of orders in the nature of mandamus....................................... 35
Availability of declaratory relief..................................................................................... 37
Pickering computer grounds – conclusion.................................................................... 38

Westin Computer Decision........................................................................................................ 38
The nature of Ms Westin’s decision with respect to access to in-cell computers..... 38
The jurisdictional errors alleged to affect Ms Westin’s decision................................ 41
Was there a failure to take into account human rights in making the decision? (Ground 1).................................................................................................................................. 41
Is Ms Westin a ‘public authority’ for the purposes of the Charter?.............. 42
The process of analysis with respect to Charter rights................................... 42
Did the decision engage the right not to be deprived of property other than in accordance with law?.......................................................................... 43

The scope of the Charter right not to be deprived of property............................................ 43
Analysis........................................................................................................................................ 43
Rights in criminal process – was the decision incompatible with the right to have conviction and sentence reviewed by a higher court in accordance with the law?................................................................................................. 48
Was the decision incompatible with the right to freedom of expression?... 50
Was the decision incompatible with the right not to be tried or punished more than once?...................................................................................................... 53

Was the decision not to reinstate the computer made with an improper purpose? (Ground 2)............................................................................................................................... 55
The evidence and the submissions on the alleged improper purpose of Ms Westin’s computer decision............................................................................... 55
Analysis of improper purpose ground............................................................. 57

Was the decision legally unreasonable? (Ground 3).................................................... 63
Was there a manifestly unreasonable outcome or lack of intelligible justification?................................................................................................................ 63
The consideration that the impact of removing access to the in-cell computer was, if at all, small............................................................................................ 64

Conclusion – Westin computer decision........................................................................ 66

The Contact Visiting Programme................................................................................................. 66

Decisions with respect to contact visits challenged by Mr McCabe.................................... 66
The statutory framework for contact visits............................................................................. 67
The s 38 instrument: Deputy Commissioner’s Instruction 3.04 – Part 2.0................ 69

The challenge to the Contact Visiting Programme conditions............................................. 71
Were the stipulations as to eligibility for the Contact Visiting Programme made for an improper purpose? (Westin Ground 5).............................................................. 72
Analysis of whether Contact Visiting Programme was made with improper purpose.................................................................................................. 74
The purposes for which the power to authorise a contact visiting programme in s 38 may be exercised............................................................................. 76
Were the Contact Visiting Programme Ineligibility Conditions imposed for the purpose of punishment?..................................................................... 78

Was the setting of eligibility conditions in the Contact Visiting Programme beyond power? (Westin Ground 4)................................................................................................. 81
Whether the Contact Visiting Programme Ineligibility Conditions are Ultra Vires - Analysis................................................................................................. 83

Conclusion as to the Contact Visiting Programme....................................................... 93

Pickering Contact visits decision.............................................................................................. 93
Consequences of findings as to Contact Visiting Programme Ineligibility Conditions on challenge to Pickering Contact visits decision.................................................. 93
Preliminary issues relevant to the challenge to the Pickering decision.................... 94
Did Mr Pickering make a decision and, if so, what was the nature of the decision? 95
What is the nature of the entitlement to contact visits?............................................... 98
Was Mr Pickering’s decision unlawfully fettered by the policy? (Ground 1)........ 101
Was Mr Pickering’s decision made for an improper purpose? (Ground 2)............ 102
Did Mr Pickering’s decision involve a failure to give procedural fairness? (Ground 3) 103
Did an obligation of procedural fairness apply to Mr Pickering’s discretion to choose between a fine / loss of privileges and a reprimand?..... 104
Was Mr McCabe afforded procedural fairness with respect to the exercise of Mr Pickering’s discretion?...................................................................... 106
Notice to prisoners of the Contact Visiting Programme.............................. 108
Did the failure to afford Mr McCabe procedural fairness result in real or practical injustice?.............................................................................................. 110

Was Mr Pickering’s decision legally unreasonable? (Ground 4).............................. 112
Did Mr Pickering fail to give proper consideration to relevant human rights in his decision? (Ground 7)........................................................................................... 113
Section 17 – protection of children and the family unit................................ 113
Section 26 of the Charter – right not to be tried or punished twice............ 114

Conclusion....................................................................................................................................... 116

HER HONOUR:

Introduction

The plaintiff, Rowan McCabe, is a prisoner at Loddon Prison. He has brought proceedings for judicial review against Melissa Westin, Deputy Commissioner, Custodial Operations, and Phillip Pickering, Operations Manager, of Corrections Victoria.

The context for the proceedings is that Mr McCabe was granted access to use of a computer in his cell, for the purposes of education and preparation for legal appeals. He also was a participant in a contact visiting programme approved by Ms Westin under the Corrections Act 1986 (Vic) (the Act) which enabled weekly visits with his family (Contact Visiting Programme). After a routine audit of Mr McCabe’s in-cell computer by a prison officer, it was discovered that pornography was stored on it. The computer was seized and he was charged with a prison offence of having misused a computer by storing unauthorised material on it. He was found guilty and fined for that offence at a Governor’s disciplinary hearing conducted by Mr Pickering. Following the guilty finding and fine, his access to contact visits with his family were suspended for two weeks in accordance with the terms of the Contact Visiting Programme.

Mr McCabe seeks review of decisions said to have been made by both defendants refusing to reinstate his access to the computer. He also seeks review of a decision, that he contends was made by Mr Pickering at the disciplinary hearing, to suspend his access to contact visits. Finally, Mr McCabe challenges the terms of the Contact Visiting Programme, which include a condition that access to contact visits are lost for two weeks where a prisoner is found guilty of and fined for a prison offence.

Mr McCabe identifies multiple grounds of review for each decision. He raises issues as to whether the decisions were authorised under the Act, whether the decisions were legally unreasonable, whether he had been denied procedural fairness and whether the defendants had complied with obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). Mr Pickering contends that he did not make reviewable decisions, and alternatively that any decision that he did make was not affected by error. Ms Westin also contends that her decisions were not affected by any error.

For the reasons that follow, I have concluded that:

(a) Mr Pickering did not make any decision with respect to Mr McCabe’s computer, although he had power to do so. The relief sought in the nature of mandamus compelling him to restore access to the computer is not available at law and I would not in any event make such an order, for discretionary reasons.

(b) There was no error affecting Ms Westin’s decision not to restore access to Mr McCabe’s computer.

(c) The approval of the Contact Visiting Programme terms was not affected by improper purpose. However, one condition of the Contact Visiting Programme was beyond the scope of the discretionary power in the Act which authorised approval of the programme, when that power is construed in the context of the Act and in particular Part 7 of the Act which governs disciplinary consequences for prison offences.

(d) To the extent that it is necessary to determine the grounds of review relating to the decision resulting in Mr McCabe’s loss of contact visits, there was a failure to afford Mr McCabe procedural fairness, but no other error of law.

The issues and factual context

The Act does not expressly confer on prisoners any right to have a computer in their cell. In practice, prisoners have access to shared computers situated in common areas in the prison, such as the prison library or a computer room.[1] There has also for some years been in Victorian prisons a programme pursuant to which prisoners may request permission to have a computer in their own cell, for their personal use for certain specific purposes.[2] The eligibility for and conditions of access to computers are set out in a policy of the Commissioner, Corrections Victoria. The policy in force at the time of the decisions the subject of these proceedings is the Commissioner’s Requirement 2.1.2, Prisoner Computer and Gaming Consoles, issued in March 2022 (Commissioner’s Requirement 2.1.2).[3] Relevantly, Commissioner’s Requirement 2.1.2 stipulates that access to an in-cell computer must be necessary or required for the prisoner’s ‘legal or educational pursuits, or there are other exceptional circumstances’.[4]
[1]As is the case at Loddon prison: see Consolidated Affidavit of Rowan Leigh McCabe sworn 23 October 2023 (Westin Proceeding) (Consolidated McCabe Affidavit), [37]-[38]; Affidavit of Phillip James Pickering sworn 10 October 2023 (Pickering Affidavit), [22].
[2]See, for example, Knight v Hastings [2010] VSC 99, [17]; Rich v Secretary to the Department of Justice [2007] VSC 405, [4]-[5], [27].
[3]Affidavit of Melissa Sueanne Westin affirmed 4 October 2023 (First Westin Affidavit), [10]; Exhibit MSW-1, 82-126. The same document was tendered by Mr McCabe: Affidavit of Rowan Leigh McCabe sworn 21 April 2023 titled ‘Computer and Visits Decision’ (First McCabe Affidavit), Exhibit C. The Commissioner’s Requirement as in force at the time of Mr McCabe’s in-cell computer application in 2021 was not in evidence. The application form and computer use agreement, which are set out in the Commissioner’s Requirement were in evidence, as completed by Mr McCabe. They were substantially the same as those in the March 2022 policy: First Westin Affidavit, Exhibit MSW-1, 123, and I was satisfied that there was no material difference between the policy in evidence and that in force when Mr McCabe applied for his computer.
[4]First Westin Affidavit, [10]; Exhibit MSW-1, 83.

Mr McCabe applied for access to a personal in-cell computer in July 2021, and had a personal computer in his cell from about September 2021.[5] The application involved him submitting an ‘Application for Access to a personal Computer’, an ‘Application for Access to Computer Hardware’ and a ‘Prisoner’s Computer Agreement’.[6] The basis on which Mr McCabe sought a computer was identified in the application documents as ‘Education’, and referred to the Graduate Diploma in Mathematics at Charles Sturt University, which requires use of Maple software, a mathematics program required for his course.[7] Mr McCabe’s evidence was that the basis for his application for access to the in-cell computer was also for legal work in connection with appeals.[8] On 17 August 2021, Mr McCabe’s application was approved by the General Manager of Loddon Prison.[9]
[5]First McCabe Affidavit, [1]; Pickering Affidavit, [5].
[6]Pickering Affidavit, [5]; Exhibit PP-1, 2-7.
[7]Pickering Affidavit, [6]; Exhibit PP-1, 2.
[8]Consolidated McCabe Affidavit, [2]; Affidavit of Rowan Leigh McCabe sworn 21 April 2023 titled ‘Extension of Time’ (Second McCabe Affidavit).
[9]Pickering Affidavit, [6]; Exhibit PP-1, 8.

Mr McCabe was also receiving weekly contact visits from his fiancée and young son. After a period during the COVID-19 pandemic when visits had been suspended and subsequently heavily restricted by infection control measures, his visits during 2022 had returned to a weekly two-hour contact visit with his family.[10]
[10]Consolidated McCabe Affidavit, [15]-[16].

On 22 November 2022, the IT Coordinator at Loddon Prison, Scott Stubbings, conducted an audit on Mr McCabe’s computer that revealed four pornographic videos stored on its hard drive. Mr Stubbings seized the computer.[11]
[11]Pickering Affidavit, [7]-[8]; Exhibit PP-1, 9-17; First McCabe Affidavit, [2]-[3].

On 23 November 2022, Mr McCabe was moved from a one-person cell to a two-person cell.[12] Mr McCabe identified this action as having been a punitive response to the incident with his computer.[13] The evidence of the defendants, while not expressly to the effect that this occurred as a response to the incident, was consistent with Mr McCabe’s understanding, in that Mr Pickering gave evidence that there is limited availability of one person cells, and prisoners are only able to apply for a one-person cell ‘if they have been incident free for a period of three months’.[14] Mr McCabe did not, in any event, make any specific challenge to this action in moving him to a two-person cell, but did rely on it ‘as evidence of the matrix of punishments he received’.[15] Mr McCabe was returned to a one-person cell on 22 February 2023.[16]
[12]Pickering Affidavit, [10]; First McCabe Affidavit, [4].
[13]Second McCabe Affidavit, [3].
[14]Pickering Affidavit, [10].
[15]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [13].
[16]Pickering Affidavit, [10].

On 27 November 2022, Mr McCabe was issued with a ‘Notification of Charge of Prison Offence’ and ‘Checklist for Disciplinary Officers’, which identified his charge as ‘misuse a computer, installing inappropriate material’ in contravention of reg 56(1)(n) of the Corrections Regulations 2019 (the Regulations).[17]
[17]Pickering Affidavit, [12]-[13]; Exhibit PP-1, 21; First McCabe Affidavit, [5].

On 5 December 2022, Mr Pickering, who as Operations Manager had been delegated a number of the functions and powers of the General Manager of Loddon Prison (the Corrections Victoria name for the position identified as ‘Governor’ in the Act),[18] heard the disciplinary hearing. Mr McCabe pleaded not guilty, on the basis that the Notification of Charge document referred to him having ‘misused a computer’ on 26 November 2022, which was a time after the computer had been seized.[19] In submissions to the Court, Mr McCabe did not dispute that there was pornography on his computer, or that there had been an offence.[20] Mr Pickering, on the basis of evidence from Mr Stubbings at the hearing, found Mr McCabe guilty and imposed a penalty of a fine of $100.[21]
[18]Pickering Affidavit [3]; Exhibit PP-1, 1.
[19]First McCabe Affidavit, [6]; Affidavit of Rowan Leigh McCabe sworn 21 April 2023 titled ‘Computer Decision and Impacts’ (Third McCabe Affidavit), [7].
[20]Transcript 12/12/23, T30.30-.31; Transcript 13/12/23, T89.19-.21.
[21]Pickering Affidavit, [16]; First McCabe Affidavit, [9].

Mr McCabe was provided with copies of legal material from his computer on a CD[22] for use in the computers available in the computer room in Loddon Prison.
[22]Consolidated McCabe Affidavit, [19], [37]-[38].

On 24 January 2023, Mr McCabe sent a letter to the General Manager of Loddon Prison, Catherine Darbyshire, who occupies the position of prison Governor under the Act, to request that his computer be returned to him for in-cell use.[23] Ms Darbyshire refused that request[24] and advised Mr McCabe in a letter dated 10 February 2023:

I have considered your request and determined that due to the serious nature of the breach being a level 4 breach, the fact that you had signed a contract and were aware of the consequences of breaching the contract the penalty will remain in place.
You can utilise the stand-alone computers in the education [sic] to continue your studies and work on your legal matters.

[23]First McCabe Affidavit, Exhibit A.

[24]First McCabe Affidavit, Exhibit A; First Westin Affidavit, [7].

On 21 February 2023, Mr McCabe sent a letter to Ms Westin, in her capacity as Deputy Commissioner – Custodial Operations, requesting that she overturn the General Manager’s decision and return his computer for in-cell use. Ms Westin had powers delegated to her by both the Commissioner, Corrections and, relevantly to this proceeding, the Secretary to the Department of Justice and Community Safety.[25] The Secretary had delegated to Ms Westin powers and functions including the power under s 17 of the Act, pursuant to which the Secretary can exercise all or any powers of the prison Governor or a prison officer.
[25]First Westin Affidavit, [8]-[9]; Exhibit MSW-1, 22, 25.

Ms Westin refused Mr McCabe’s request, stating:

Reinstatement of in-cell computer – not approved
…
Storing pornographic material in your in-cell computer is considered a Level 4 offence in the Commissioner’s Requirement 2.1.2 - Prisoner Computers and Gaming Consoles. As you may or may not be aware, the recommendation for a Level 4 breach is that the prisoner loses all personal in-cell computer privileges whilst in custody for a minimum of three years.
As advised by the General Manager, you are still able to utilise the computers in Education to continue your studies and prepare for your legal matters.
You may reapply for the reinstatement for your in-cell computer at a later date, as I am not ready to re-consider your application. I encourage you to maintain good behaviour and remain incident free during this time.[26]

[26]First Westin Affidavit, [8]-[9]; Exhibit MSW-1, 71-81.

Mr McCabe gave evidence as to the limitations on the time during which he could access the ‘public’ computers within the prison, and the effect on his studies. As one of the subjects in his Graduate Diploma involved use of the Maple software program, which was installed on his personal computer but not available on the ‘public’ computers, he withdrew from that subject. He later withdrew from another subject as he fell behind on the work for reasons including a lack of computer time to listen to tutorials and lectures.[27]
[27]Consolidated McCabe Affidavit, [28]-[31], [37]-[39].

Procedural and evidentiary issues
Relevant procedural background

The two proceedings brought by Mr McCabe were heard together pursuant to an order made by Judicial Registrar Keith earlier in the case management of the proceedings.[28] Given the commonality of issues, the evidence in one proceeding was treated as evidence in the other.[29]
[28]Order of JR Keith dated 20 September 2023.
[29]A combined Court book filed pursuant to the order of JR Keith dated 22 November 2023 incorporated all documents relevant to both proceedings, including a ‘consolidated’ affidavit’ of Mr McCabe incorporating evidence relevant to both proceedings and some additional evidence.

A notice under s 35 of the Charter was given by the plaintiff to the Attorney-General for the State of Victoria and to the Victorian Equal Opportunity and Human Rights Commission, to give them the opportunity to intervene under ss 34 and 40 respectively of the Charter. The Attorney-General and the Commission informed the Court that they would not be intervening in the proceedings.[30]
[30]Correspondence from the Victorian Government Solicitor’s Office on behalf of the Attorney-General dated 2 November 2023; Correspondence from the Victorian Equal Opportunity and Human Rights Commission dated 17 November 2023.

Disclosure regarding previous work for Corrections Victoria and recusal application

Before my appointment as a judge of this Court, I had in my practice as a barrister advised officers of Corrections Victoria about matters relating to prison administration and had appeared in legal proceedings for officers holding roles under the Corrections Act. Those officeholders included individuals previously holding the position of Commissioner, Corrections; Deputy Commissioner, Corrections and General Manager of Prisons. I had not appeared for or advised either of the defendants. I had, however, appeared for officers of Corrections Victoria on applications for judicial review relating to access to in-cell computers. Before the hearing, my associates wrote to the parties[31] informing them that I had previously appeared for the Commissioner or Deputy Commissioner for Corrections, most recently in 2016 in the matter of Minogue v Shuard.[32] The email also advised that I had appeared in the following cases involving issues relevant to access to in-cell computers:
[31]Correspondence dated 11 December 2023.
[32][2016] VSC 797.

(a) Knight v Money [2009] VSC 242 (2 June 2009);

(b) Knight v Wise [2011] VSC 313 (7 July 2011);

(c) Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 (31 October 2012);

(d) Knight v Hastings; Knight v Wise [2012] VSCA 315 (18 December 2012);

(e) Knight v Wise (No 2) [2013] VSC 339 (28 June 2013);

(f) Knight v Wise [2014] VSC 639 (15 December 2014); and

(g) Knight v Wise [2015] VSC 157 (23 April 2015).

At the commencement of the hearing I invited the parties to make submissions on whether I should recuse myself.

Mr McCabe submitted that I should recuse myself on the basis that my involvement on behalf of Corrections Victoria in the previous cases would give rise to ostensible bias or the appearance of bias, particularly from the perspective of the prisoner cohort who are ‘a very cynical bunch, a lot of them … towards the justice system in general’.[33] He also submitted that it was relevant that he was challenging the correctness of a judgment involving exercise of powers by Corrections Victoria made 20 years ago, with the consequence that Corrections Victoria had been exercising powers that they were not entitled to exercise. I understood this to be a reference to Kaufman v Smith & Armytage,[34] a case dealing with contact visits, which Mr McCabe had identified in his written submissions as having been wrongly decided.
[33]Transcript 12/12/23, T2.28-3.8
[34](2001) 124 A Crim R 259. I had no involvement in this case.

Mr McCabe also raised the potential for conflict of interest if I had friendships or working relationships with the defendants arising from my past work for Corrections Victoria.[35]
[35]Transcript 12/12/23, T2.22-4.26.

I advised the parties of the fact that I had no relationship with Mr Pickering or Ms Westin and I could not recall ever having met them. I also advised that I could not recall ever having been involved in advising on any matter relating to Mr McCabe.[36] I brought to Mr McCabe’s attention, so that he could make any further submissions, observations made in two authorities relevant to the question of a judge having previously advised or represented a person or entity who or which is subsequently a party in proceedings before the judge. The first was Re Polites; Ex parte Hoyts Corporation Pty Ltd[37] in which Brennan, Gaudron and McHugh JJ stated:

A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party.[38]

[36]Transcript 12/12/23, T4.14-.21.

[37](1991) 173 CLR 78.

[38](1991) 173 CLR 78, 87-88.

Their Honours observed that the position would be different, for example, if advice had been given to the former client that was then going to be the subject of or related to the proceedings before them.[39] Re Polites was referred to in Chopra v Department of Education and Training,[40] a decision of McLeish JA, which I also raised with Mr McCabe.
[39](1991) 173 CLR 78, 88.
[40][2021] VSCA 36.

I invited any further submission from Mr McCabe in light of the authorities and Mr McCabe confirmed that he maintained his position but did not seek to add anything further.

Crown Counsel submitted that the defendants did not have a position on whether or not I should recuse myself, but that this was not a case where I should feel compelled to take that step.[41] Crown Counsel observed that the test of apparent bias is whether a reasonable bystander might apprehend whether I might not bring an open mind to the resolution of the proceeding. The apprehension of a subset of the community, such as prisoners, who might have a particular sensitivity, is therefore not relevant. The relevant bystander would understand that I was doing a job in acting for office-holders of Corrections Victoria, and that I have now taken an oath as a Justice of this Court, and that there would be no apprehension that I might not bring an open mind to the resolution of this proceeding.[42]
[41]Transcript 12/12/23, T4.28-.31.
[42]Transcript 12/12/23, T4.28-5.17.

I ruled that I would not recuse myself from hearing the proceeding. I gave brief reasons for that ruling at the hearing, on which I now elaborate.

The test is whether a fair-minded observer might apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide.[43] Applying the test involves two steps: identifying the matter which may lead me to decide the case other than on its legal and factual merits, and then identifying whether there is a logical connection between that matter and the apprehended possible departure from the merits.[44] In this case, the relevant matter is that I have in my practice as a barrister given advice to Corrections Victoria and its officers, and made submissions on their behalf on the issue of access to in-cell computers. It is not a case of an association or interest in the proceeding by reason of personal relationships with the defendants or their representatives,[45] nor through having given advice to Corrections Victoria relating to Mr McCabe.[46] The question is whether my past professional representation of, or general association with, Corrections Victoria and its office holders as client may give rise to a reasonable apprehension on the part of a fair-minded observer that I may decide this matter by reference to past legal positions taken on behalf of Corrections Victoria, rather than on its merits.
[43]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 350 [33] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Charisteas v Charisteas (2021) 273 CLR 289; Michael Wilson & Partner Ltd v Nicholls (2011) 244 CLR 427, 437 [11] (Gummow ACJ, Hayne, Crennan and Bell JJ).
[44]Ebner (2000) 205 CLR 337, 345 [8], 350 [30]; Charisteas (2021) 273 CLR 289, 296-297 [11]
[45]Compare Ebner (2000) 205 CLR 337, 350 [30]-[31].
[46]I have, since the hearing, identified that I also represented the Secretary to the Department of Justice, and the then Commissioner for Corrections Jan Shuard, in a 2018 case, Kheir v Secretary, Department of Justice and Regulation [2018] VSC 222, relating to a decision to refuse the grant of emergency management days to the plaintiff. I did not raise this with the parties after the hearing, as I had already identified that I had acted regularly for the Commissioner and Deputy Commissioner for Corrections. That was the disclosure to which the parties directed their submissions, and Kheir did not have any additional feature such as any connection to Mr McCabe and the issues he raises.

That fair minded observer is reasonable. The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice,[47] but is not to be conceived of as a lawyer; the observer is to be regarded as a member of the public served by the courts.[48]
[47]Johnson v Johnson (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[48]Charisteas (2021) 273 CLR 289, [21].

The knowledge of the fair-minded observer in assessing the relevant association would include an awareness that I must apply the law, as determined by the Court, rather than by reference to any opinion that I have given or submission that I have made as a barrister. To the extent that I have made submissions or given advice on issues in the proceedings in which I represented officers of Corrections Victoria, and involving issues of access to in-cell computers, the Court has determined the issues in the relevant judgments. It is those judgments that, with other relevant authority, state the law that I must apply to the issues before me. This requirement – that I will apply the law as represented in decided judgments, rather than be guided by prior personal legal opinion or submission I have expressed as a barrister on behalf of a client – is a sufficiently fundamental aspect of judicial method that it is appropriately to be regarded an aspect of the ordinary judicial practice forming the context in which the fair-minded observer forms any view.

Further, while prisoners are one component of the community that constitutes the public which are served by the courts, the fair-minded and reasonable observer is not to be imputed with the particular sensitivities of a prisoner who may be cynical towards the justice system. The observer is ‘neither complacent, nor unduly sensitive or suspicious’.[49] To attribute the bystander with cynicism as to the administration of justice would distort the perspective of the observer in a way which was neither fair-minded nor reasonable. It would undermine the principles relevant to assessing an apprehension of bias in a similarly inappropriate way to imputing to the observer an expectation that a judge will invariably observe professional restraint, which was a perspective rejected by the High Court in Charisteas.[50]
[49]Johnson v Johnson (2000) 201 CLR 488, 509 [53] (Kirby J), cited with approval by the House of Lords in Lawal v Northern Spirit [2003] UKHL 35, [14] (Lord Steyn) and by the Court of Appeal of New Zealand in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 4965, 514 [96].
[50]Charisteas (2021) 273 CLR 289, [20]-[21].

In determining that it was not appropriate to recuse myself, I also took into account the observations of the Court in Re Polites and Chopra v Department of Education and Training.[51] In Chopra, the plaintiff applied for Justice McLeish to recuse himself on the basis that his Honour was the former Solicitor-General for the State of Victoria and that there was ‘an obvious conflict’ because the Department was his ‘former employer’ and that he had ‘self-granted’ to himself the power to be in a position to order costs ‘to be paid to the benefit of’ that former employer.[52] Justice McLeish declined to recuse himself, observing that he had not at any time advised the State or its entities in relation to a matter which to his knowledge had involved Dr Chopra, nor had he acted in any matter to which he was a party. He also observed, citing Re Polites, and Picos v Servcorp Ltd[53] that:

[I]t is well-established that a prior relationship between a former legal adviser (now a judge) and a client does not, of itself, disqualify the judge from sitting in proceedings where the former client is party.[54]

[51][2021] VSCA 36.

[52][2021] VSCA 36, [110].

[53][2015] FCA 344, [40] (Perry J).

[54][2021] VSCA 36, [114].

In the absence of any particular features of my prior professional relationship with Corrections Victoria and its office holders, such as acting for these defendants, or in matters involving Mr McCabe or advising on issues which would be the subject of this proceeding, I considered that it was not a basis for a fair-minded observer to consider that I might not bring an unbiased mind to the proceeding.

The challenged decisions

Following the audit of Mr McCabe’s computer there was a series of decisions by different decision makers, not all of which were the subject of his judicial review applications. He did not challenge the original decision of Mr Stubbings to seize his computer on 23 November 2022, nor the decision of the prison Governor, Ms Darbyshire of 10 February 2023, to refuse Mr McCabe’s request to return the computer to him for in-cell use.

The decisions of which Mr McCabe sought judicial review were:

(a) Decisions of Mr Pickering characterised as:

1.The failure to restore the Plaintiff’s computer for in-cell use and indefinitely deprive him of it.

2. The decision to take away Contact Visits for a period of 2 weeks.[55]
[55]Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), under heading ‘Impugned Decision’.

(b) Decisions of Ms Westin characterised as:

1.The decision not to restore the Plaintiff’s computer for in-cell use and indefinitely deprive him of it.
2.The decision as to eligibility for contact and residential visits.[56]

[56]Further Amended Originating Motion filed 1 December 2023 (Westin Proceeding), under hearing ‘Impugned Decision’.

Multiple grounds of review were identified for each of the decisions.

I will address the issues arising by reference first to the issue of access to the in-cell computer, and the identified decisions of each defendant on that issue, then turn to the matters relating to contact visits which are challenged by Mr McCabe.

Access to computers for personal use by prisoners in their cells

The legal framework for the grant to prisoners of access to in-cell computers has been the subject of a significant volume of judicial consideration. It is a subject of some complexity,[57] and involves reference, in addition to the Act and the Regulations, to policy documents in the form of Commissioner’s Requirements which have been used to regulate the terms of access.
[57]As observed by Justice Byrne in an early decision which considered the basis on which access to in-cell computers may be granted: Knight v Money [2009] VSC 242, [8].

It is useful, before considering the nature of the challenges made by Mr McCabe to the decisions made by Mr Pickering and Ms Westin, to consider the source of the statutory power by which prisoners may be granted access to a computer for their personal use, in their own cell, and the policy framework which has been used to guide the exercise of that power. An understanding of the source of power is particularly relevant given submissions for the defendants that there are limits on reviewability of these decisions.

Statutory basis for ‘in-cell’ computer access

Section 47 of the Act lists a number of specific rights of prisoners. It is established that those rights do not encompass the right to have access to a computer in a prisoner’s cell.[58] The rights identified in s 47 are, however, expressly stipulated to be in addition to, and do not affect, any other rights a prisoner has under the Act or at common law.
[58]Knight v Money [2009] VSC 242, [8]-[9] (Byrne J); CoulstonvWise [2010] VSC 135, [20] (Williams J); Knight v Wise [2014] VSC 76, [12] (T Forrest J).

The Regulations also provide by reg 33 for the Commissioner to submit to the Secretary annually lists of privileges for approval. Both the Commissioner in submitting the list and the Secretary in approving the list must consider the management, good order and security of the prison: reg 33(4), (7). The significance of these privileges is that they are relevant to the disciplinary process provided for in s 53 of the Act, and may be removed as a penalty following a Governor’s disciplinary hearing.[59]
[59]Corrections Act 1986 (Vic), s 53(4)(c); See, for example, Knight v Hastings; Knight v Wise [2012] VSCA 315, [54]-[56].

Whether an in-cell computer is a privilege for the purposes of reg 33 and the Act depends on the terms of the list approved annually. In 2007, in Rich v Secretary to the Department of Justice it was held that access to an in-cell computer was not a privilege, on the basis that it was not identified in a list produced at the hearing as the relevant list approved under reg 33.[60] Subsequently in 2011, Hollingworth J considered the 2010 List of Privileges, a different list to that considered in previous cases.[61] Her Honour held that a reference in the List to ‘access to computers or electronic games consoles and associated software’, which was silent as to whether that access was to be provided in-cell, out of cell or both, could arguably be construed as encompassing a privilege of access to an in-cell computer.[62] The status as a privilege gave rise to at least a legitimate expectation to have an application for an in-cell computer considered in accordance with the relevant policy guidelines.[63] Subsequently, Kyrou J,[64] the Court of Appeal,[65] and Emerton J[66] in different cases considered the 2012 List of Privileges which referred to access to ‘all in-cell electrical appliances (other than radios, fan, jug and shaver)’ and access to ‘shared unit computers and electronic games consoles’. In each judgment it was concluded that the existence of the specific privilege relating to shared unit computers precluded the reference to ‘in-cell electrical appliances’ being construed as encompassing an in-cell computer.[67] The same conclusion was reached with respect to the identically-worded 2013 List.[68]
[60]Rich v Secretary to the Department of Justice [2007] VSC 405, [27]. It was observed by Mandie J that it was also not possible to determine on the material before him whether the List was compliant with the requirements of the regulations: at [26].
[61]Knight v Wise [2011] VSC 313, [51]-[60] (Hollingworth J).
[62]Knight v Wise [2011] VSC 313, [61] (Hollingworth J).
[63]Knight v Wise [2011] VSC 313, [62]-[63] (Hollingworth J).
[64]Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506.
[65]Knight v Hastings; Knight v Wise [2012] VSCA 315.
[66]Knight v Wise [2013] VSC 339.
[67]Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, [55]; Knight v Hastings; Knight v Wise [2012] VSCA 315, [56]; Knight v Wise [2013] VSC 339, [17].
[68]Knight v Wise [2014] VSC 76, [68]-[73] (T Forrest J).

The List of Privileges for 2022, the time relevant to the seizure of the computer and the decisions of Mr Pickering on the Governor’s disciplinary hearing, was before the Court.[69] It is a schedule to the Deputy Commissioner’s Instructions 2.3.3 – Disciplinary Process and Prisoner Privileges and stated, relevantly:
[69]Supplementary Affidavit of Melissa Sueanne Westin affirmed 29 November 2023 (Second Westin Affidavit), Exhibit MSW-2, 42.

Pursuant to regulation 33 of the Corrections Regulations 2019, the Secretary of the Department of Justice and Community Safety, has approved the following list of prisoner privileges for 2022:
…
(e)Access to all in-cell electrical appliances (other than a jug/kettle, radio and fan, subject to note #3, below)
…
(g)access to shared unit computers and unit electronic games consoles.
Notes
…
3.In relation to paragraph (e), a Disciplinary Officer or a Hearing Officer at a General Manager’s Disciplinary Hearing, will be able to consider removing a jug/kettle, radio or fan, if the jug/kettle, radio or fan is misused or deliberately damaged.

The reference in the list to access to computers is only to ‘shared unit computers’, and in accordance with the authorities referred to above, must be read to limit the more general reference to in-cell electrical appliances. It remains the case therefore that there is no reg 33 privilege which encompasses access to an in-cell computer.

In the absence of any statutory right or privilege to have access to an in-cell computer, different conclusions have been reached in the past as to the statutory basis on which such access is granted. Justice Byrne’s conclusion when considering, in 2009, the basis for the grant of access to an in-cell computer, was that there was no statutory or regulatory foundation for it ‘other than perhaps the role of the secretary of the Corrections Department as the person charged with the custody of the prisoners’.[70]
[70]Knight v Money [2009] VSC 242, [9]. The Secretary is identified as having custody of prisoners is in ss 6 and 6A(1)(a) of the Corrections Act 1986 (Vic).

More recently in 2014, Justice Emerton in Knight v Wise[71] concluded that the responsibilities of the prison Governor under ss 20 and 21 of the Act with respect to the management, security and good order of the prison, and the safe custody and welfare of the prisoners, with their corresponding duties and implied powers,[72] were the source of the powers to permit access to an in-cell computer. Her Honour, having referred to ss 20 and 21, observed:

As a consequence, a prison Governor has a broad power to regulate the contents of a prisoner’s cell, including to permit a prisoner to have an in-cell computer or to refuse permission for an in-cell computer, in the course of the discharge of his or her duty to manage the prison, and to provide for its security and good order and the safe custody and welfare of the prisoners.
Pursuant to s 17 of the Act, the Secretary to the Department of Justice has all of the powers of a prison Governor under the Act and may exercise those powers. Pursuant to s 8 of the Act, the Secretary may delegate his or her powers and functions. The Secretary has delegated the s 21 powers and functions to the defendant as Deputy Commissioner.[73]

[71][2014] VSC 639 (as her Honour the President of the Court of Appeal then was).

[72]It has been recognised since the decision of the Court of Appeal in Binse v Williams and Van Groningen [1998] 1 VR 381, 392 that the responsibilities imposed by ss 20 and 21(1) of the Act carry corresponding duties and implied powers necessary to discharge those responsibilities.

[73][2014] VSC 639, [18]-[19].

In Minogue v Falkingham[74] Macaulay J expressed the same view as to the source of the power to grant access to a computer, and referred also to the powers in Part 5 of the Regulations to authorise entry of property into prisons.
[74][2021] VSC 185, [65].

This understanding of ss 20 and 21(1) of the Act as empowering the grant of access to an in-cell computer, sits more comfortably with regulation of property within the prison and in particular within a prisoner’s cell, in my respectful opinion, than to understand it as arising from the Secretary’s formal custody of prisoners. The relevant Corrections Victoria policy, Commissioner’s Requirement 2.1.2, is consistent with this understanding, in allocating the power to make decisions with respect to an in-cell computer to Governors and Deputy Commissioners,[75] who hold the powers of Governors through the process of delegations referred to by Emerton J in Knight v Wise.[76]
[75]See Commissioner’s Requirement 2.1.2 at [4.3], and in particular [4.3.5] which refers to the General Manager making a determination on an application for access to a computer. In specific cases of prisoners classified as ‘Major offenders’, or prisoners subject to Supervision and Detention Orders, the application for approval must also be approved by a Deputy Commissioner or Assistant Commissioner: [4.4.2]-[4.4.3], [4.5.2]. See First Westin Affidavit, Exhibit MSW-1, 85-87.
[76][2014] VSC 639.

Justice Byrne observed in Knight v Money that ‘permission to purchase a computer and to have it in the cell is not a right in any sense of the word. It is more to the nature of an indulgence which may be accorded a prisoner where this is considered appropriate’.[77] This remains the case under the Act and Regulations as currently in force.[78] It is however an indulgence which can be granted or refused through the exercise of a discretion sourced in specific statutory powers – ss 20 and 21(1) of the Act. That discretion is, as described below, the subject of specific and comprehensive guidance in the form of Commissioner’s Requirement 2.1.2. There may also be circumstances in which other rights with a statutory or a common law basis – such as the right of access to the courts, or the right to a fair hearing[79] – may potentially intersect with the otherwise purely discretionary statutory basis for granting access to in-cell computers. That may mean that access to an in-cell computer for a specific purpose could in those circumstances take on more of the characteristics of a right, or be a necessary ancillary to satisfying another right.
[77]Knight v Money [2009] VSC 242, [8].
[78]As confirmed by Cavanough J in Knight v Sellman [2020] VSC 320, [189].
[79]See the discussion in Rich v Secretary to the Department of Justice [2007] VSC 405, [16], [22]-[24] (Mandie J); R v Rich (No 2) [2008] VSC 141, [66] (Lasry J); Knight v Hastings [2010] VSC 99, [107]-[173], [196]-[201] (Robson J); Knight v Wise [2011] VSC 313, [31]-[45] (Hollingworth J); Brazel v Westin [2013] VSC 527, [21] (Kaye J); Knight v Wise [2014] VSC 76, [24]-[41] (T Forrest J); Rich v Howe [2017] VSC 483, [63]-[71], [140] (Kennedy J); Knight v G4S Custodial Services Pty Ltd [2023] FCA 926, [48]-[80] (Anderson J); Knight v Sellman [2020] VSC 320, [186]-[202] (Cavanough J); McKechnie v State of Victoria [2023] VSC 259, [15]-[20] (Ginnane J).

Corrections Victoria policy governing access to in-cell computers

Applications for and the conditions of access by prisoners to a computer in their cell are the subject of the Commissioner’s Requirement 2.1.2. Ms Westin’s evidence was that officers are obliged to implement Commissioner’s Requirements save to the extent that the policies are inconsistent with statutory functions or duties.[80] Mr Pickering’s evidence was that he could not depart from Commissioner’s Requirement 2.1.2 without the permission of a General Manager or Deputy Commissioner.[81]
[80]First Westin Affidavit, [12].
[81]Pickering Affidavit, [17].

The status of Commissioner’s Requirements

Ms Westin gave evidence that Commissioner’s Requirement 2.1.2 was ‘issued under s 8A of the Corrections Act 1986’. The defendants’ submissions referred more generally to it having been issued under the Act.[82] Section 8A(1) provides for the Secretary to employ a person to be the Commissioner. Section 8A(2) provides:

The Commissioner is responsible for –
(a)assessing performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders; and
(ab)the performance of functions under the Serious Offenders Act 2018; and
(b)exercising any other functions relating to correctional services that the Secretary may determine from time to time.

[82]First Westin Affidavit, [10]; Defendants’ Submissions dated 9 November 2023, [31]. A similar position appears to have been put in AS v Secretary of the Department of Justice and Regulation [2017] VSC 310, where Jane Dixon J observed at [26] that the Commissioner’s Requirements are ‘purportedly made under s 8A of the Act’.

The evidence and submissions did not identify which aspect of s 8A was said to authorise the making of Commissioner’s Requirement 2.1.2. The focus of s 8A(2)(a) on ‘assessing performance in the provision of all correctional services’[83] does not readily encompass the setting of policy which is intended to regulate and guide the performance of correctional functions under the Act. Section 8A(2)(ab) not being relevant in this context, it would appear that it is s 8A(2)(b) which is relied on as the source of the power. While there was no evidence in this proceeding that the Secretary had determined that the Commissioner should exercise a function of issuing policy documents including Commissioners’ Requirement 2.1.2, the validity of that policy was not put in issue in this proceeding. I proceed on the basis that the Commissioner had the necessary authority to issue Commissioner’s Requirement 2.1.2.[84]
[83]Emphasis added.
[84]Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154, 164 (McHugh JA): ‘Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.’

The use of instruments such as Commissioner’s Requirements and Deputy Commissioner’s Instructions to state policy with respect to prison management and guidance for the exercise of functions, powers and discretions under the Act and Regulations is appropriate for transparency and consistency in decision making.[85] That is subject to the requirement that policies must be consistent with the statutory scheme, must not be directed to a purpose which is extraneous to the purposes of the discretionary powers to which they are directed, and must not inappropriately limit the range of the statutory discretion.[86]
[85]Plaintiff M64/ 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, [54] (French CJ, Bell, Keane and Gordon JJ), [62] (Gageler J).
[86]Minister for Home Affairs v G and Anor (2019) 266 FCR 569, [58]-[62] (Murphy, Moshinsky and O’Callaghan JJ); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640, 642 (Brennan J).

The relevant contents of Commissioner’s Requirement 2.1.2

Commissioner’s Requirement 2.1.2 provides for the circumstances in which prisoners can be granted access to an in-cell computer, and the conditions on which such access is granted and removed. It provides, relevantly, that:

2.2Prisoners may have a personal computer and related hardware in their accommodation where it can be demonstrated that there is a genuine educational or legal requirement, or in exceptional circumstances, such as where access to an 'in-cell' computer is seen to be crucial to the prisoner's sentence plan and rehabilitative needs or where access to a shared computer is limited and the prisoner's privacy may be unreasonably compromised.[87]

[87]First Westin Affidavit, Exhibit MSW-1, 83.

The eligibility criteria for access to an in-cell computer are identified. In relation to legal use, the criteria include that the prisoner has an outstanding criminal legal matter or outstanding criminal appeal and the computer is ‘necessary for the preparation of a case/defence’. In determining whether the prisoner needs a computer for outstanding criminal matter, the decision-maker will consider the seriousness of the charges, the need to access an electronic version of a brief of evidence, depositional or other court-related material, and the sensitivity of that material. In relation to educational or training use, the criteria include that the prisoner has approval to engage in an education programme, either full-time or part-time, and the course cannot be facilitated on the prison system. Commissioner’s Requirement 2.1.2 also sets out a number of requirements as to the manner in which in-cell computers can be used, including stipulations as to approved software.

Commissioner’s Requirement 2.1.2 states that:

Failure to comply with these guidelines will result in the General Manager withdrawing a prisoner’s access to a personal computer.
…
Where a prisoner has been found guilty of a computer related prison offence, the Hearing Officer may authorise the removal of the computer from the prison and withdrawal of the prisoner’s computer privileges. Refer to Commissioner’s Requirement 2.3.3. – Disciplinary Process and Prisoner Privileges. Guidelines for the length of time of withdrawal or permanent withdrawal of a computer are provided … in Computer Offence Levels.[88]

[88]Commissioner’s Requirement 2.1.2, [4.16.1], [4.16.5]: See First Westin Affidavit, MSW-1, 92-93.

The ‘Computer Offence Levels’ stated in Commissioner’s Requirement 2.1.2 are five categories as to the level and severity of a breach of the Requirement, level 5 being the most severe. Level 4 applies to ‘password protected files, non-approved programs, pornographic video and/or picture files’. The prescribed recommendation for a Level 4 breach is ‘that the prisoner loses all personal in-cell computer privileges whilst in custody for a minimum of three years.’

Other Corrections Act provisions relevant to the in-cell computer access issues
Provisions relevant to search and seizure

Section 45 of the Act provides, relevantly, that the prison Governor may at any time order a prison officer to search any part of the prison, search and examine any thing in the prison, and that this may be done at random.

Section 46 provides for prison officer powers in relation to seizure:

46 Seizure
(1)In carrying out searches under sections 44 and 45 a prison officer may seize any one or more of the following—
(a)any thing found in the prison, whether in a person's possession or not, which the prison officer believes on reasonable grounds jeopardizes or is likely to jeopardize the security or good order of the prison or the safety of persons in the prison;
(ab)….
(b)any thing found on a prisoner or in a prisoner's possession, other than a thing which the prisoner is authorized to wear or to possess under Division 4, the regulations, or a direction of the Governor;

…
(2)A prison officer or an escort officer who seizes any thing under subsection (1) or (1A) must immediately inform the Governor.
(3)A Governor must deal in accordance with the regulations with any thing, which is not a drug of dependence, and is seized under this section.

Regulation 94 provides for how seized property is to be dealt with:

94 Dealing with things seized—general requirements
(1)For the purposes of sections 46(3) and 55H(2) of the Act, a Governor or the Secretary (as the case may be) must deal with a thing seized under those sections in accordance with this regulation.

…
(4)If any other thing is seized, the Governor or the Secretary must direct that the thing is dealt with by one or more of the following ways—
(a) retention of the thing as evidence;
(b) disposal of the thing in a manner allowed by law;
(c)return of the thing to the owner of the thing (if reasonably practicable);
(d)declaration of the thing as forfeit to the Crown if the thing was involved in the commission of a criminal offence;

(e) dismantling of the thing in a manner allowed by law;
(f)dealing with the thing in a manner that is appropriate to the nature of the thing and the circumstances under which it was seized;
(g)if the thing is seized from a prisoner—storage of the thing as a part of the prisoner's property.

Governor’s disciplinary hearings

The outcome of the disciplinary hearing of the prison offence charge following the seizure of Mr McCabe’s computer was central to Mr McCabe’s submissions. The Act and Regulations deal in detail with the investigation and hearing of prison offences in disciplinary hearings.

Section 50 of the Act provides for the procedure if a prison officer suspects a prisoner has committed a ‘prison offence’ (defined by s 48 as ‘a contravention of this Act or the regulations’). The officer must, pursuant to s 50(1), report this fact to a disciplinary officer (who is a prison officer appointed as a disciplinary officer by the Secretary pursuant to s 49). The disciplinary officer must investigate the offence and give the prisoner an opportunity of making an explanation: s 50(2). If after investigation the disciplinary officer is satisfied that no offence has been committed, the disciplinary officer must take no further action, and if satisfied that it is trivial, may take no further action: ss 50(3) and (4). If the disciplinary officer is satisfied that the prisoner has committed a prison offence, the disciplinary officer may, under s 50(5) of the Act, reprimand a prisoner, withdraw one of the prisoner’s privileges for less than 14 days, or charge the prisoner with a prison offence.

If the prisoner is charged, the Governor then has discretion under s 51 of the Act to refer a matter back to the disciplinary officer to deal with the matter under s 50(5), proceed to hear the charge or refer to the matter to another Governor for hearing, or take steps to have the matter dealt with under the criminal law.

Section 53 of the Act provides for the conduct of Governor’s hearings and provides, relevantly:

53 Governor's hearing
(1)If a charge is to be heard by the Governor of the prison or by another Governor, the Governor of the prison must—
(a) not less than 72 hours before the hearing; or
(b)if the Governor and prisoner agree to a shorter period, within that shorter period; or
(c)if the prisoner is due to be discharged from prison within 7 days of the alleged prison offence occurring or if, in the opinion of the Secretary, a period of notice shorter than 72 hours is necessary for the security or good order of the prison, within the period determined by the Secretary—

give notice to the prisoner of the time, date and place of the hearing.
…
(4)If at a Governor's hearing the Governor finds that the prisoner is guilty of the prison offence or the prisoner admits the truth of the charge, the Governor may impose any of the following penalties—
(a)       a reprimand;
(b)       a fine not exceeding 1 penalty unit;
(c)withdrawal of one or more of the prisoner's privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding in total 30 days;
*         *         *         *         *

(5)The payment of fines imposed under subsection (4) may be recovered by deduction in accordance with the regulations from moneys payable to, or held by or for, the prisoner.
(6)For each prison offence committed the Governor must not under subsection (4) impose more than one of the penalties listed in that subsection.

In addition to a ‘prison offence’ being defined generally in s 48 to be a contravention of the Act or Regulations, certain prison offences are also defined specifically by reg 65 of the Regulations. Relevantly, reg 65(1)(n) provides that a prisoner must not:

… misuse a computer or any other electronic equipment accessed by installing, using or possessing hardware, programmes, software or other material that is not approved by the Commissioner…

This is the offence with which Mr McCabe was charged and of which he was found guilty in the Governor’s hearing.[89]
[89]Pickering Affidavit, [11]-[15], Exhibit PP-1, 18-26; First McCabe Affidavit, [5]-[6].

The Regulations in regs 67-74 also detail the procedure for a Governor’s hearing. Relevantly to this proceeding, the Regulations provide for recording the outcome of the hearing.

74Steps to be taken once Governor has made a decision at the disciplinary hearing
(1)If at the disciplinary hearing the Governor finds a prisoner guilty of the prison offence, the Governor must—
(a)       inform the prisoner of the Governor's decision; and
(b)       record in the form determined by the Secretary—
(i)        the Governor's decision; and
(ii)       the penalty imposed (if any); and
(iii)      the prisoner's admission of guilt (if any); and
(c)if applicable, authorise in writing the payment of any fine imposed under section 53(4)(b) of the Act from the money held on behalf of the prisoner in the prisoner's prisoner trust account; and
(d)if paragraph (c) applies, record the Governor's authorisation.

…

Decisions alleged to have been made with respect to computer access

The decisions relevant to Mr McCabe’s computer access which were the subject of his applications for judicial review were identified as:

(a) Mr Pickering’s ‘failure to restore the Plaintiff’s computer for in-cell use and indefinitely deprive him of it’.[90]

(b) Ms Westin’s ‘decision not to restore the Plaintiff’s computer for in-cell use and indefinitely deprive him of it’ (Westin Computer Decision).[91]

[90]Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), para [1] of ‘Impugned Decision’.

[91]Further Amended Originating Motion filed 1 December 2023 (Westin Proceeding), para [1] of ‘Impugned Decision’.

Mr McCabe did not challenge the original decision of prison officer Stubbings to seize the computer. He accepted that ‘the seizure was legitimate … that I can get fined $100 ordinarily ... that I’m guilty … [t]hat pornography can be a security risk to the gaol … to the good order and management of the gaol. There’s no dispute about those issues at all’.[92] This was an appropriate concession given the breadth of the powers of search and seizure referred to in paragraphs [59] and [60] above.
[92]Transcript 13/12/23, T89.19-.24.

There was no evidence as to exactly what had been done with the computer on its seizure. Mr McCabe did not take issue specifically with how his computer had been dealt with, other than to challenge the outcome that it was not returned to him for in-cell use. It can be inferred from the evidence as to the requests made by Mr McCabe for the return of the computer to him in January and February 2023, and the responses to the effect that the computer would not be returned at that time, that the computer was available to be returned to him when a decision was made to do so. There is no evidence that any direction was made at the Governor’s disciplinary hearing as to how the computer would be dealt with (even though Commissioner’s Requirement 2.1.2 identifies that possibility).[93] In the absence of any contrary evidence, I infer that the most probable outcome was that the computer was, following seizure, stored in Mr McCabe’s property in accordance with a direction made by the Governor or a delegate pursuant to reg 94(4)(g).
[93]Commissioner’s Requirement 2.1.2 states at [4.16.5] that ‘Where a prisoner has been found guilty of a computer related prison offence, the Hearing Officer may authorise the removal of the computer from the prison and withdrawal of the prisoner’s computer privileges’.

Pickering Computer Grounds

The grounds of review identified by Mr McCabe with respect to his computer access in the Pickering proceeding were as follows:

Ground 5 - The Defendant’s decision not to restore the Plaintiff’s computer for in-cell use was incompatible with his human rights, without lawful excuse, such being contrary to law and constituting jurisdictional error
GROUND 6 - further to Ground 5, the Defendant’s decision not to restore the Plaintiff’s computer for in-cell use was made for an improper purpose, resulting in jurisdictional error
GROUND 7 - The Defendant failed to give proper consideration to multiple relevant human rights in his decisions, resulting in procedural unfairness and jurisdictional error
Ground 8 – If the Defendant purports to have made his decision for a lawful purpose, such was unreasonable in the legal sense

As elaborated in his submissions, these grounds of review could be understood as raising errors of four kinds:

(a) whether there was lawful authority for the decision not to restore (or failure to take steps to restore) Mr McCabe’s access to his computer;

(b) whether the decision not to restore or failure to restore the computer was for an improper purpose of punishment;

(c) whether there was a failure to take into account human rights as required by s 38 of the Charter;

(d) whether the decision not to restore or failure to make a decision to restore the computer was legally unreasonable.

However, there is a preliminary issue to be considered, which is raised by the defendants’ response to these grounds. That is whether there was in fact any decision made by the defendant Mr Pickering, or any reviewable exercise of power on his part.

Mr Pickering’s authority with respect to the computer

Mr Pickering, Operations Manager at Loddon Prison, was the prison officer who heard and determined the Governor’s hearing of the prison offence with which Mr McCabe had been charged. The General Manager, Ms Darbyshire, had delegated to Mr Pickering functions and powers of the General Manager (Governor under the Act).[94] These were, relevantly, powers under ss 19, 21, 22A of the Act dealing with the management good order and security of the prison; powers relevant to visits in ss 37 and 38(3) of the Act; powers under ss 45, 46(1), (2) and (3) of the Act dealing with search and seizure; and the powers with respect to prison offences in s 51, 52 and 53 of the Act. Powers and functions under the Regulations had also been delegated, including those under reg 94(4) relating to dealings with seized items.[95]
[94]Pickering Affidavit, [3].
[95]Pickering Affidavit, Exhibit PP-1, 1: Instrument of Delegation signed by Ms Darbyshire, General Manager Loddon Prison and Middleton. That instrument is dated 12 December 2022, which is a date after the relevant events the subject of Mr McCabe’s application for judicial review against Mr Pickering. However the evidence was that Mr Pickering held delegations from the Governor in his role as Operations Manager, a role which he had held since 2017 (Pickering Affidavit, [2]-[3]). No issue was taken that the powers which had been delegated to Mr Pickering at the relevant times were any different to those held under the instrument of delegation which was in evidence.

Mr McCabe gave evidence that at the disciplinary hearing:

… Mr Pickering stated that “the computer, don’t even ask about getting that back for at least 12 months”. Nonetheless I brought up that I had pending legal matters, including a conviction appeal at the High Court. His response was to “organise a meeting with Mr Stubbing in relation to my legal”
I also stated that I relied upon the computer for my distance education, being a Graduate Diploma in Mathematics – Computer Aided. I mentioned that there was a maths specific program that I needed for the course. There was no comment in relation to my computer situation.[96]

[96]Consolidated McCabe Affidavit, [10]-[11].

Mr Pickering’s evidence was that he did recall that during the hearing of the prison offence charge, Mr McCabe had raised with him ‘the fact that he needed his computer for a legal proceeding he was pursuing and an educational course that he was enrolled in’, but that he could not recall what he said to Mr McCabe.[97] His evidence was, however, that he had no authority to make any decision:

… I did not have any authority at this point to have his computer returned because he had breached his “prisoner’s computer agreement” with a Level 4 Computer Offence under Commissioner’s Requirement CR 2.1.2. That meant only the General Manager or Deputy Commissioner could authorise a return of the computer. Commissioner’s Requirements are policy documents issued by the Commissioner that apply in all prisons and I could not depart from it – only the General Manager or Deputy Commissioner could authorise that decision.[98]

[97]Pickering affidavit, [17].

[98]Pickering affidavit, [17].

In submissions on behalf of Mr Pickering, it was said that:

The evidence establishes that Mr Pickering did not decide, or instigate or authorise another, to seize the plaintiff’s computer, nor was the decision not to reinstate the plaintiff’s computer for in-cell use made by Mr Pickering.
…
Further, to the extent that the plaintiff seeks to impugn a purported failure by Mr Pickering to make a decision to restore the plaintiff’s computer for in-cell computer use, such an assertion is doomed to fail in circumstances where Mr Pickering had no duty nor any power to make such a decision.[99]

[99]Defendants’ Submissions dated 9 November 2023, [40], [44]. Emphasis added.

Mr McCabe submitted that because Mr Pickering was the presiding General Manager or delegate at the Governor’s hearing under Part 7 of the Act, he had authority under Commissioner’s Requirement 2.1.2, which provides:

Where a prisoner has been found guilty of a computer related prison offence, the Hearing Officer may authorise the removal of the computer from the prison and withdrawal of the prisoner’s computer privileges. Refer to Commissioner’s Requirement 2.3.3 – Disciplinary Process and Prisoner Privileges. Guidelines for the length of time of withdrawal or permanent withdrawal of a computer are provided to in [sic] Computer Offence Levels.[100]

[100]At [4.16.5]. [Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding) [66]; Pickering Affidavit, Exhibit PP-1, 38.

Mr McCabe also submitted that Mr Pickering had the delegated powers of the Governor under s 46(3) of the Act, requiring the Governor to ‘deal in accordance with the Regulations with any thing, which is not a drug of dependence, and is seized under this section’.[101] He also had the powers under reg 94(4) of the Regulations which identifies how seized property is to be dealt with, including (at reg 94(4)(c)) by ‘return of the thing to the owner of the thing (if reasonably practicable)’.[102]
[101]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding) [65].
[102]Plaintiff’s Submissions dated 23 October 2023, [65].

In addition to this, Mr Pickering had the powers under ss 20, 21 and 22A of the Act, relevant to the management, security and good order of the prison and safe custody and welfare of prisoners. As discussed above, those powers are also the source of the power to permit a prisoner to have a computer in their cell.

Mr Pickering did, therefore, have delegated powers of the prison Governor under the Act and Regulations which would have enabled him to make decisions as to whether Mr McCabe’s computer could be returned. I do not accept that Mr Pickering had no authority to make any decision on that issue. As submitted by Mr McCabe, Mr Pickering had the following delegated powers:

(a) Powers under s 46(3) of the Act, which gave Mr Pickering the power to deal with seized property, which at the time of the Governor’s hearing under s 53 held on 5 December 2022, would relevantly have included Mr McCabe’s computer which had been seized on 22 November 2022.

(b) The power under reg 94(4) as to how the seized property could be dealt with pursuant to the power in s 46(3). This power included, relevantly, the power to return the computer to Mr McCabe (reg 94(4)(c)) or to store it as part of his prisoner property (reg 94(4)(g)).

(c) Powers under ss 20 and 21 which, as discussed above at [47]-[49], provide the general source of a power to permit a prisoner access to an in-cell computer.

Mr Pickering’s evidence, and the corresponding submission, was that the Commissioner’s Requirement 2.1.2 policy did not authorise him to make any decision with respect to the computer, and that he was not permitted to depart from that policy. Although that is an understandable position for Mr Pickering to take in a hierarchical organisation, I do not accept that Commissioner’s Requirement 2.1.2 had that effect as a matter of law, for two reasons.

First, Commissioner’s Requirement 2.1.2 expressly gave relevant powers to the ‘General Manager’ (that is the person holding the position of Governor) and there is nothing in the document to suggest that this means only the person actually holding that title or position, rather than persons who have been delegated the functions of Governor under the Act. There is no indication in the terms of Commissioner’s Requirement 2.1.2 that this was intended where functions and powers of the General Manager are referred to. This includes the paragraph of Commissioner’s Requirement 2.1.2 relied on by Mr McCabe, [4.16.5], which refers to the power of withdrawal of a computer. More broadly it includes the observation at the outset of the provisions relating to consequences for non-compliance with Commissioner’s Requirement 2.1.2 that:

4.16 Non-Compliance
4.16.1Failure to comply with these guidelines will result in the General Manager withdrawing a prisoner’s access to a personal computer.

These aspects of the policy indicate some decision making role for the General Manager, following seizure of a computer, and potentially during a disciplinary hearing.

Secondly, Commissioner’s Requirement 2.1.2, while relevant to the exercise of powers under the Act and Regulations, could not fetter any of those powers to the extent that the circumstances required some departure from the policy expressed in the Commissioner’s Requirement. This was acknowledged by Ms Westin in her evidence that:

Like General Managers, I had the authority to depart from policy documents, like the CR, in the exercise of powers under the Act.[103]

[103]First Westin Affidavit, [13].

I accept that Mr Pickering at least had the power to make a decision with respect to Mr McCabe’s access to his computer.

Did Mr Pickering make a decision as to the computer or fail to exercise powers to deal with the computer?

I accept Mr McCabe’s evidence that during the disciplinary hearing Mr Pickering said ‘the computer, don’t even ask about getting that back for at least 12 months’. Mr Pickering’s evidence does not contradict this. His evidence was that he recalled Mr McCabe referring to a legal proceeding he was pursuing and an educational course he was engaged in, but did not at the time of his affidavit recall what Mr McCabe said to him. Nevertheless, Mr Pickering’s evidence was clear that he did not make any decision as he did not regard himself as having any authority to do so. His comment ‘don’t even ask about getting that back for at least 12 months’ is consistent with him having understood that he could not make a decision about the computer but would not expect any other decision maker to restore it for some time.[104]
[104]First McCabe Affidavit, [7]; Pickering Affidavit, [17].

I consider that a more appropriate characterisation of what occurred was that Mr Pickering, despite having had powers with respect to the seized computer, did not exercise those powers at the time of the disciplinary hearing. I accept that this could be characterised (as Mr McCabe did, in the alternative)[105] as a failure to restore Mr McCabe’s computer to him.
[105]See Amended Originating Motion filed 15 August 2023 (Pickering Proceeding), referring to a ‘failure to restore the Plaintiff’s computer for in-cell use’; See also Plaintiff’s Response to the Defendants’ Submissions dated 24 November 2023, [7]-[8]; cf [16].

Was Mr Pickering’s decision unlawfully fettered by the policy? (Ground 1)

Mr McCabe’s contentions under this ground overlapped to a significant extent with his challenge to the setting of the Contact Visiting Programme conditions by Ms Westin.[338]
[338]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [14]-[28]; Plaintiff’s Submissions dated 14 November 2023 (Westin Proceeding), [3].

Mr Pickering’s evidence was consistent with him applying the terms of the Contact Visiting Programme and in particular, the Fourth Ineligibility Condition and the following dot point relating to the discretion which arises if a reprimand is given for a prison offence.

Given that the Contact Visiting Programme is an instrument issued under s 38 of the Act, Mr Pickering was obliged to act in accordance with its terms and conditions. For the reasons identified in paragraphs [306] to [310] above, there is no general discretion to depart from its terms. There was no error in Mr Pickering having regard to and applying the instrument.

Ground one may also have been intended to encompass an argument that Mr Pickering applied the Contact Visiting Programme inflexibly without properly considering the discretion open to him under that instrument to consider issuing a reprimand and if so to recommend no suspension of contact visits.[339] That ground is not made out. Mr Pickering considered the range of matters relevant to whether a fine or a reprimand should be given; and he also considered matters relevant to the impact of his decision on Mr McCabe’s access to contact visits, both the impact on him and on his family.[340] There was no inflexible application of policy.
[339]See, for example, Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 193-194.
[340]Pickering Affidavit, [16(g)], [16(h)], [20].

Proceeding on the assumption, for present purposes, that the Contact Visiting Programme was not beyond power, ground 1 in the Pickering proceeding is not established.[341]
[341]If I am correct in finding that the Fourth Ineligibility Condition of the Contact Visiting Programme was beyond power, there may be a basis on which Ground 1 succeeds. As noted in [290] above, I will hear the parties’ submissions on that issue with all submissions about relief.

Was Mr Pickering’s decision made for an improper purpose? (Ground 2)

Mr McCabe’s submissions on this ground also were primarily directed to the Contact Visiting Programme conditions having been imposed for an improper purpose, rather than to Mr Pickering having had an improper purpose in making his decision.[342] That issue has been addressed above in the context of the proceeding against Ms Westin.
[342]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [29]-[46]; Plaintiff’s Submissions dated 14 November 2023 (Westin Proceeding), [5].

Mr McCabe did, in passing, submit that the ‘sole purpose of the Governor’s decision to withdraw the Plaintiff’s contact visits was punitive.’[343] In support of that submission he relied on the ‘Checklist for Hearing Officers’ which had been completed following the hearing.[344] It is not clear whether that form was completed by Mr Pickering or another officer such as the disciplinary officer, whose name is recorded on the first page of the form.[345] The identity of who completed the form is not in any case material. There was nothing in that checklist, which recorded a check against the box ‘Charge proven’ as the hearing outcome; and against ‘Fine’ as a penalty, with $100.00 filled in, that evidenced an intention on Mr Pickering’s part to withdraw Mr McCabe’s contact visits for punitive reasons.
[343]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [45].
[344]Pickering Affidavit, Exhibit PP-1, 25.
[345]Pickering Affidavit, Exhibit PP-1, 23.

Ground 2 in the Pickering proceeding is not established.

Did Mr Pickering’s decision involve a failure to give procedural fairness? (Ground 3)

Mr McCabe contended that the decision to remove contact visits was one which required principles of procedural fairness to be observed.[346] He submitted that he had not been given an opportunity to be heard on whether he should lose access to contact visits because Mr Pickering did not at the disciplinary hearing mention the potential loss of visits, nor tell him that visits would be suspended.[347] His evidence was also that he had not been informed of the Ineligibility Conditions of the Contact Visiting Programme either upon reception to the prison or otherwise.[348] He submitted that the failure to raise the loss of contact visits with him during the disciplinary hearing meant that he was unable to argue that there was no link between his offence and prison visits, or to ‘explore any approach to mitigating or negating the effects of the punishment’.[349]
[346]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [49]-[52].
[347]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [52]; Transcript 12/12/23, T52.24-.27
[348]Consolidated McCabe Affidavit, [17].
[349]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [53].

It was contended for Mr Pickering that given he ‘lacked any authority to withdraw the plaintiff’s access to the Contact Visit Program, it is self-evident that there can be no such procedural fairness imposed on him in relation to this issue.’[350] It was said that if there was, contrary to the primary submission, any duty of procedural fairness, that duty had been discharged by the Notification of Charge and the disciplinary hearing process by which Mr McCabe ‘was directed to the critical issues on which the decision was likely to turn’ and the adverse conclusions which may have been drawn.[351]

Did an obligation of procedural fairness apply to Mr Pickering’s discretion to choose between a fine / loss of privileges and a reprimand?

[350]Defendants’ Submissions dated 9 November 2023, [65].

[351]Defendants’ Submissions dated 9 November 2023, [66].

Where legislation confers a power on a decision maker to adversely affect a person’s interests, there will generally be implied into the statute a condition that the power be exercised affording procedural fairness to the person affected.[352]
[352]Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ).

The entitlements to contact visits when the power in s 38 of the Act is exercised to approve a programme are of real importance to prisoners and their families. This is recognised in the Deputy Commissioner’s Instruction 3.04 itself, where it states under the heading Operating Principles:
Corrections Victoria acknowledges the importance of maintaining contact with people and organisations in the community, along with supporting family ties and friendships, as this assists prisoners to maintain their links to the community. Visits are particularly important in helping prisoners maintain connection with family and friends.[353]
[353]Pickering Affidavit, Exhibit PP-1, 75.
The legislative scheme too recognises the importance of prisoners having access to visits. This is first through the recognition in s 47(1)(k) of the right to at least one non-contact visit for at least half an hour per week. The importance of contact visits is reinforced by the requirements that any contact visiting programme be approved by instrument. That instrument is to include specific information required by reg 79 and must, in accordance with s 38(3), be brought to the attention of all prisoners eligible to take part in the programme, in accordance with the Regulations. As noted by Jane Dixon J in AS v Secretary to the Department of Justice[354] these notice requirements demonstrative a legislative purpose that places importance on the facilitation of visits to prisoners by relatives and friends.[355]
[354][2017] VSC 310.
[355][2017] VSC 310, [80].

AS v Secretaryto the Department of Justice related to an order made under s 43(1A) of the Act by the General Manager of the Metropolitan Remand Centre, as a delegate of the Secretary. The order prohibited the plaintiff, the wife of a prisoner, from visiting the prison.[356] Section 38 was not directly in issue. The plaintiff acknowledged that she did not have a legal right to enter the prison. However, it was contended that a statutory power of the nature of s 43(1A) carries a presumption that a person affected by the operation of the power has a right to natural justice unless there is a clear manifestation of contrary statutory intention. The nature of the visiting right was said to be ‘an interest governed by a statutory scheme that provided for discretionary privileges and benefits’ and as such ‘was an interest of a nature captured by the test elaborated in Kioa’.[357] Justice Jane Dixon observed:

The discretion reposed in the Secretary to make regulations for a contact visiting programme for the family, and friends of a prisoner and a residential visiting programme for the family of a prisoner, demonstrates the importance the legislature has placed on opportunities for those who share a bond with a prisoner to be granted access to the prisoner.[358]

[356][2017] VSC 310, [8].

[357][2017] VSC 310, [36], [39], referring to Kioa v West (1985) 159 CLR 550.

[358][2017] VSC 310, [78].

Her Honour also observed that the regulation of prison visits by specific legislative provisions in the Act were indicative of a specific interest on the part of the visitor, in contrast to prisoners affected by the managerial and administrative decisions arising from provisions such as ss 20 and 21 of the Act.[359] Her Honour concluded that the discretion exercised by Ms Westin, acting under the delegated authority of the Secretary under s 43A(1), was of a kind enlivening judicial review and attracting the principles of procedural fairness. The content of the procedural fairness obligation was in that case ‘[a] process that enables disclosure of the proposed or potential basis for the decision and offers a chance for the recipient of a ban to put forward a response...’.[360]
[359][2017] VSC 310, [102], [123].
[360][2017] VSC 310, [123].

I have concluded that the decision made by Mr Pickering was not a decision to remove access to the Contact Visiting Programme, but instead to exercise a discretion to impose a fine, rather than a reprimand, in circumstances where he understood that the fine would carry the consequence of loss of contact visits. However in my view, it remains a decision which so affected Mr McCabe’s entitlements under the Contact Visiting Programme that it carried an obligation to afford procedural fairness.

There was no submission that any part of the Act or Regulations negated the primary position that there is a duty to afford procedural fairness with respect to decisions affecting the interests of prisoners who are participating in the Contact Visiting Programme. The Act does not in my view manifest any such contrary intention.

There was, therefore, in my view an obligation to provide procedural fairness by:

(a) putting Mr McCabe on notice of the adverse consequences with respect to loss of contact visits which would result under the Contact Visiting Programme if he was found guilty of a prison offence, and a fine or loss of privileges was imposed rather than a reprimand; [361] and

(b) permitting Mr McCabe to put forward any relevant information or submission which might be relevant to the discretion Mr Pickering had as to whether to impose a fine or loss of privileges, or merely a reprimand, and if the latter, whether Mr Pickering should recommend no loss of contact visits.

Was Mr McCabe afforded procedural fairness with respect to the exercise of Mr Pickering’s discretion?

[361]Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180.

The first aspect of the procedural obligation to put Mr McCabe on notice that he would lose contact visits for two weeks if he was found guilty and given a fine or loss of privileges, but that no loss of contact visits could be recommended if he was reprimanded only, would be satisfied by bringing to Mr McCabe’s attention the relevant conditions of the Contact Visiting Programme. In particular it was necessary that he be aware of the ineligibility condition which would be applicable to him, the Fourth Ineligibility Condition, and the following condition which provided for a discretion to recommend no loss of contact visits if a reprimand only was imposed. This could have been done in a range of ways, at the discretion of the prison authorities, including:

(a) in the Governor’s disciplinary hearing itself; or

(b) by a statement in the Notification of Prison Charge provided to the prisoner in advance of the hearing pursuant to s 50(6) and reg 68 referring to the consequences under the Contact Visiting Programme for contact visits of guilty findings.

There was no evidence that the issue of loss of contact visits was raised by Mr Pickering in the hearing. Mr McCabe said it was not discussed and Mr Pickering did not give any evidence to the contrary.[362] The Notification of Prison Charge given to Mr McCabe also does not contain any information about the potential impact on contact visits of a prison offence.[363]
[362]Consolidated McCabe Affidavit, [9]-[13]. Pickering Affidavit, [17] contains Mr Pickering’s account of what was said during the hearing. No reference is made there or otherwise in his affidavit to any discussion with Mr McCabe of the loss of contact visits.
[363]First McCabe Affidavit, Exhibit B.

The defendants submitted that ‘as a result of the Notification of Charge and the disciplinary hearing process, the plaintiff was directed to the critical issues on which the decision was likely to turn, and to the adverse conclusions which might have been drawn’, as well as an opportunity to provide submissions as to what the penalty ought to have been during the hearing process.[364] While that appears to have been the case with respect to the question of whether the disciplinary offence was committed there is no indication that either of those processes disclosed the additional adverse consequences which would follow with respect to loss of contact visits. The opportunity to make submissions was meaningless with respect to loss of contact visits if Mr McCabe was not aware that this adverse consequence may follow in addition to the standard penalties.
[364]Defendants’ Submissions dated 9 November 2023, [66].

Ms Westin also gave evidence by affidavit that:

In accordance with DCI 3.04, the defendant was issued a Schedule 13.04(5) ‘Notification to prisoner of ineligibility for contact visit program’.[365]

[365]Second Westin Affidavit, [15].

No submissions were made as to the significance of the notification document and whether it was relied on for the purposes of satisfying procedural fairness requirements. The affidavit did not identify when, or by whom, Mr McCabe was issued with the notification. The copy of the notification exhibited to Ms Westin’s affidavit, however, is dated 5 December 2022, and the content indicates that it must have been completed after the disciplinary hearing.[366] It stated, relevantly:
[366]Second Westin Affidavit, Exhibit MSW-02, 83.

In accordance with Deputy Commissioner’s Instruction No 3.04, you are no longer eligible to participate in the Contact Visit Program for the following reason:
…
(3)*You have been charged with a prison offence not related to drugs or alcohol and have been found guilty of the offence at a Disciplinary Hearing

…
Date of commencement        5/12/22
Date of completion               19/12/22
During the above period you will be eligible to receive one non-contact visit per week.
General Manager       [stamp and signature]  Date 5/12/22

Mr McCabe gave evidence at the hearing that he had not received the notice, and was not given it during the disciplinary hearing, and that the first time he had seen it was as an exhibit to Ms Westin’s affidavit.[367]
[367]Transcript 12/12/23, T14.29-15.13.

Ultimately, the question of whether Mr McCabe did or did not receive the Notification to Prisoner of Ineligibility for Contact Visit Program is not material to the procedural fairness issues. Mr McCabe’s complaint is that he was not made aware before his offence or the disciplinary hearing that the Contact Visiting Programme conditions made prisoners ineligible if found guilty of a prison offence. The Notification document, having been completed on 5 December 2022 after the hearing, does not contradict Mr McCabe’s evidence and does not show that he was made aware of the consequences of a prison offence for contact visits before the hearing.

Notice to prisoners of the Contact Visiting Programme

It may also have been sufficient if the conditions of the Contact Visiting Programme had been made known to Mr McCabe in some other way when he became a participant in the programme. This should have occurred through compliance with the requirements of s 38(3) of the Act.

As noted above, s 38(3) states that the prison Governor ‘must in accordance with the regulations bring to the attention of all prisoners eligible to take part in a contact visiting programme or a residential visiting programme the privileges offered by the programme’. Regulation 79(2) requires that for the purposes of s 38(3) of the Act the Governor ‘ensure that a notice is displayed in the prison that brings to the attention of all prisoners eligible to take part in a contact visiting programme … the privileges offered by the programme’.

The evidence of Ms Westin was that prisoners were ‘informed about the conditions of the Contact Visit Programme on arrival at Loddon Prison’ during a two-week orientation programme, and Ms Westin referred to prison records that Mr McCabe had participated in this orientation process.[368] It was not apparent from the evidence how it was said he was so informed. There was no evidence that this took place through a notice being displayed in the prison as required by reg 79(2) of the Regulations.
[368]Second Westin Affidavit, [12]-[13]; Transcript 15/12/23, T159.19-.24.

Ms Westin’s evidence was that when Mr McCabe was, before being at Loddon Prison, detained at Marngoneet Prison, a ‘similar induction would have occurred’.[369] In addition to being somewhat speculative, without providing any foundation for that opinion, this evidence did not take the question of notice as to the terms of the Contact Visiting Programme any further in that it did not identify how information was given.
[369]Second Westin Affidavit, [14].

Mr McCabe gave evidence at the hearing that the induction at Loddon Prison, although taking place over a period of two weeks, was not a two-week programme and he did not recall being told that visits could be lost for doing something wrong.[370]
[370]Transcript 12/12/23, T14.17-.28.

Ms Westin also gave evidence that the Deputy Commissioner’s Instructions (other than those which are marked ‘sensitive’), ‘are printed and stored in the [prison] library, and are available to prisoners’.[371] While this would constitute making the terms of the programme available to prisoners, it does not constitute compliance with the requirement in reg 79(2) that the Contact Visiting Programme is the subject of a notice displayed in the prison. Having the terms of a Deputy Commissioner’s instruction which deals with visits generally, and includes the conditions of the Contact Visiting Programme, stored in the prison library does not, in my view, constitute displaying a notice in the prison which ‘brings to the attention of all prisoners eligible to take part in a contact visiting programme or a residential visiting programme the privileges offered by the programme’, as is required by reg 79(2) and ultimately by s 38(3).
[371]Second Westin Affidavit, [12].

There was ultimately no evidence that the Contact Visiting Programme and its conditions were brought to the attention of Mr McCabe, or otherwise to contradict his evidence that he was not aware of the Ineligibility Conditions. I accept that he was not put on notice of the consequence of loss of contact visits for two weeks if a fine or loss of privileges was imposed, nor of the possibility that contact visit entitlements could be retained if a reprimand only was issued. The opportunity he had at the disciplinary hearing to make submissions was not a meaningful one on this issue in the absence of any such notice.

I accept that there was a failure to afford Mr McCabe procedural fairness with respect to Mr Pickering’s decision as to whether to impose a fine or loss of privileges, or instead a reprimand.

Did the failure to afford Mr McCabe procedural fairness result in real or practical injustice?

If a failure to afford procedural fairness is not material to the ultimate decision, it may not constitute a jurisdictional error.[372] Materiality is established if the plaintiff establishes that the error deprived the appellant of a realistic possibility of a different outcome.[373] In Nathanson v Minister for Home Affairs Gageler J observed:

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.[374]

[372]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 (Bell, Gageler and Keane JJ); Nathanson v Minister for Home Affairs (2022) 276 CLR 80, 107 [45] (Gageler J).

[373]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45].

[374](2022) 276 CLR 80, 103 [33] (Gageler J).

The evidence was that Mr Pickering did in fact consider matters relevant to Mr McCabe losing his contact visits for two weeks because of fining, rather than reprimanding him, including that Mr McCabe would ‘find the loss of contact visits a heavy burden’.[375] However, the source of Mr Pickering’s information was identified in very general terms as his knowledge from his experience of ‘how important prisoners find contact visits and other close connections for their general wellbeing’.[376] As Mr Pickering did not raise the issue of loss of contact visits with Mr McCabe, there was no opportunity for Mr McCabe to make any submission as to how specifically the loss of contact visits with his young son and fiancée would affect him, or would affect his family.
[375]Pickering Affidavit, [16](h)].
[376]Pickering Affidavit, [16](h)].

Mr McCabe submitted that there were relevant exceptional circumstances in that during the COVID-19 emergency, he had no visits with his fiancée and young son for 679 days, and subsequently for 231 days only heavily restricted visits.[377] There were matters Mr McCabe might have raised had he known that contact visits were in issue.
[377]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [52]; Consolidated McCabe Affidavit, [15]-[16].

I am satisfied that there is a realistic possibility that Mr Pickering may have made a different decision had Mr McCabe been given an opportunity to give evidence or make submissions about the impact of the loss of contact visits.

There was a material failure to afford procedural fairness. If I am wrong in my conclusion as to the invalidity affecting the Contact Visiting Programme, and it was necessary to make a finding on this ground, I would find that ground 3 in the Pickering proceeding is established.

Was Mr Pickering’s decision legally unreasonable? (Ground 4)

Mr McCabe contended by ground 4 that to any extent that Mr Pickering’s power was lawfully fettered by the s 38 instrument, his decision to remove visits was legally unreasonable. He relied on the statement in Deputy Commissioner’s Instruction 3.04 that ‘[v]isits, including video visit contact with children and family, cannot be withdrawn as a punishment for disciplinary offences, except where it is demonstrably justifiable’.[378] He also referred to the requirement to consider human rights under the Charter and particularly the rights to protection of children and the family unit in s 17. He contended that it was unreasonable not to exercise the discretion to enable continuing contact visits in circumstances where he had ‘weekly visits with his fiancée and 2.5 year old son and that his disciplinary offence had no connection to contact visits or drugs’.
[378]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [56].

The Charter rights relied on by Mr McCabe are considered specifically below in the context of ground 7. Taking the potential relevance of Charter rights into account in assessing reasonableness, it is plain that Mr Pickering did consider Mr McCabe’s family, as well as other factors including the nature of the prison offence and the fact that Mr McCabe could still maintain contact with family through a box visit, by Zoom, by telephone and by ordinary mail.[379]
[379]Pickering Affidavit, [20].

There is nothing in Mr Pickering’s conclusion, nor in the evidence as to the matters he considered in determining whether to issue a fine (with accompanying loss of contact visits) or a reprimand, that discloses legal unreasonableness. While Mr McCabe’s circumstances may have justified a favourable exercise of discretion, his offence was also not a trivial one, and the imposition of the penalty, even in circumstances where it would mean that his contact visits were suspended for two weeks, was not unreasonable. That is particularly the case where other means of maintaining contact with his family remained open to him.

Ground 4 is not established.

Did Mr Pickering fail to give proper consideration to relevant human rights in his decision? (Ground 7)

Mr McCabe contended that Mr Pickering failed to consider multiple human rights in his decisions. Although his written submissions on Ground 7 primarily focussed on Mr Pickering’s alleged decision with respect to his computer,[380] aspects of his oral submissions appeared to extend this complaint to the decision relating to contact visits.[381] The rights relied on by Mr McCabe were his rights arising from s 17 of the Charter, relating to the protection of the family unit and of children, and under s 26, the right not to be tried or punished twice.
[380]Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [85]-[89].
[381]Transcript 12/12/13 T52.5-.27, T215.5-.17; See also Plaintiff’s Submissions dated 23 October 2023 (Pickering Proceeding), [48].

Mr Pickering is, like Ms Westin, a public authority for the purposes of the Charter, meaning that s 38 of the Charter applies to his decision.

Section 17 – protection of children and the family unit

Section 17 of the Charter provides:

(1)Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2)Every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.

The first question is whether the rights in either ss 17(1) or 17(2) have been engaged or limited by Mr Pickering’s decision to fine Mr McCabe and thus expose him to the consequence of loss of contact visits for two weeks.[382]
[382]Thompson v Minogue (2021) 67 VR 301, [47]-[48], [57].

In considering this question it is important to acknowledge the starting point that Mr McCabe has, by reason of his sentence of imprisonment, been lawfully deprived of his freedom of movement and unrestricted access to his family.[383]
[383]Cf R (Buxton) v Parole Board of England and Wales [2004] EWHC 1930 (Forbes J), where a prisoner sought judicial review of a decision by the Parole Board to recall him to prison, relying on the right to family life under art 8 of the European Charter of Human Rights. The Court rejected that argument noting that ‘the restriction on privacy and family complained of flowed necessarily from the fact of the complainant’s imprisonment.’ See to similar effect Hall v Parole Board of England and Wales [2015] EWHC 252 (Simler J).

Mr McCabe’s right to spend time in contact with his family had already been validly limited by the sentence of imprisonment, before Mr Pickering made his decision.[384] The rights that Mr McCabe had to physical contact with his family were only those conferred by the Contact Visiting Programme, inclusive of its conditions. Other rights, to non-contact visits, phone calls and other communication, were not impacted by the decision. Assuming for this purpose that the Fourth Ineligibility Condition was a valid condition, his entitlement to contact visits did not extend to any time when that condition applied.
[384]See Donohue v Westin [2022] VSC 37, [45] (Niall JA); See also R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, [5].

It is unnecessary to consider closely the scope of the rights in s 17 of the Charter in these circumstances, as I am satisfied that any limitations on those rights did not arise from any decision of Mr Pickering, but from the sentence of imprisonment.

Section 26 of the Charter – right not to be tried or punished twice

Section 26 has been referred to above in the context of Ms Westin’s decision not to restore Mr McCabe’s access to his computer. In the context of contact visits, Mr McCabe contended that the loss of eligibility for contact visits occurred as a result of the imposition of a penalty by Mr Pickering under s 53(4) of the Act, and that this involved ‘double the detriments’, in breach of s 26 of the Charter, as well as in breach of s 53(6) of the Act.[385]
[385]Plaintiff’s Submissions dated 14 November 2023 (Westin Proceeding), [8].

Counsel for the defendants submitted that the fact that the conditions of the Contact Visiting Programme result in the loss of eligibility when a prisoner is found guilty of a prison offence and a penalty is imposed does not result in a breach of s 26 of the Charter.[386]
[386]Defendants’ Supplementary Submissions dated 29 November 2023, [21].

I have doubts whether, even accepting the adverse and penalising effect of the loss of contact visits, it constitutes a ‘punishment’ within the meaning of s 26, which involves a consideration of whether the act complained of is a truly penal consequence in nature and purpose.[387] If, as is the premise of my consideration of this ground, the Contact Visiting Programme and all conditions were within power, the right to contact visits was co-extensive with and limited by the conditions, and the application of the Fourth Ineligibility Condition would not constitute a punishment. I also consider that the better view is that s 26 does not apply to disciplinary proceedings.[388]
[387]See R v Wrigglesworth [1987] SCR 541, 561 where Wilson J described the test of whether a consequence is a punishment for the purposes of the protection against double punishment in the Canadian Charter as whether it is ‘imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity’. This was applied by Cory J in R v Shubley [1990] 1 SCR 3, 8. See also DPP (ACT) v Nikro (2017) 265 A Crim R 158, [38], [59] (Burns J) in the context of s 24 of the Human Rights Act 2004 (ACT), which is in similar terms to s 26 of the Charter.
[388]See para [173] above.

I consider it unnecessary to express a final view on the application of s 26 to disciplinary proceedings, and whether the loss of contact visits was a punishment, as I consider that there is a separate basis on which the right in s 26 is not engaged. Section 26 applies to being punished ‘more than once for an offence in respect of which [a] person has already been finally convicted’. The loss of contact visits was imposed when the fine was imposed, as part of the penalty for the one prison offence.

Mr McCabe’s argument is that the decision of the Governor on a finding of guilty on his disciplinary hearing, was both to fine him $100, and to impose a two-week suspension of contact visits for the one offence. If the suspension of contact visits is properly regarded as a punishment for the purposes of s 26, it was imposed at the same time and for the same conviction as the fine. The two penalties were effectively different elements of the punishment for the same offence. It cannot be said that at the time of the decision of which Mr McCabe complains – the imposition of the loss of contact visits – he had ‘already been finally convicted’ of the prison offence; the loss of contact visits and the fine were punishments arising from the same conviction in the one hearing. This does not appear to me to be the circumstance to which s 26 is directed, being a trial and punishment after a first process in which the person has ‘already been finally convicted’.[389]
[389]See, in the context of statutory provisions against double punishment, Jones v Commissioner of Police [2023] QDC 113, [57] (Smith DCJA) where it was noted that s 16 of the Criminal Code 1899 (Qld), providing that a person is not to be twice punished for the same offence, ‘is aimed at a situation where a person is punished on the one occasion and is then punished on a different occasion’.

In R v Shubley,[390] a prisoner had been found guilty in a disciplinary hearing of a prison offence for assaulting another prisoner, and punished with solitary confinement. Subsequently the prisoner was charged with assault under the Criminal Code of Canada, and sought to stay the hearing in court of that charge on the basis that it would violate the right under s 11(h) of the Canadian Charter of Rights and Freedoms not to be tried and punished twice for the one offence. The case was determined on the basis that the prison disciplinary proceeding did not constitute public offences of a criminal, quasi-criminal or regulatory nature with true penal consequences.[391] There was no issue taken by the plaintiff or the Court with the fact that it was possible under the corrections legislation to punish the one prison disciplinary offence with two penalties;[392] it was only the subsequent criminal proceeding which gave rise to any potential issue under the Canadian Charter.
[390]R v Shubley [1990] 1 SCR 3.
[391]R v Shubley [1990] 1 SCR 3, 20-21 (McLachlin J, Sopinka J and Gonthier J agreeing).
[392]R v Shubley [1990] 1 SCR 3, 10, 21-22.

For the above reasons, I consider that s 26 is not engaged by the decision of Mr Pickering to impose a penalty and thus expose Mr McCabe to loss of contact visits. This aspect of ground 7 is not established.

Conclusion

For the above reasons, Mr McCabe’s applications for review have been successful in part, and will otherwise be dismissed. I will provide for the parties to make written submissions as to the appropriate relief and to have the opportunity to address those submissions in a further hearing.

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[2024] VSC 145

28 March 2024