McKechnie v Secretary to the Department of Justice and Community Safety (Weekly Payments Judgment)
[2023] VSC 542
•11 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01652
| ANDRE McKECHNIE | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2023 |
DATE OF JUDGMENT: | 11 September 2023 |
CASE MAY BE CITED AS: | McKechnie v Secretary to the Department of Justice and Community Safety (Weekly Payments Judgment) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 542 |
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JUDICIAL REVIEW – Practice and procedure – Plaintiff a prisoner seeking preliminary discovery of documents relating to payment and discontinuance of weekly payments –Refusal to work in a prison industry – Regulations providing no entitlement to payment of remuneration if work refused – Whether reasonable cause to believe that prisoner has or may have the right to obtain relief in the Court from the defendants – Whether public authority acted unlawfully in failing to give proper consideration to human rights - Public authority could not have made a different decision – Whether the plaintiff had made reasonable inquiries – Whether the plaintiff had sufficient information to decide whether to commence a proceeding to obtain relief – No evidence that defendants have or are likely to have or have had or were likely to have had in their possession documents relating to the question whether the plaintiff has a right to obtain relief – Preliminary discovery application dismissed – Charter of Human Rights and Responsibilities Act 2006 ss 22,38; Corrections Regulations 2019 reg 43; Supreme Court (General Civil Procedure) Rules 2015 r 32.05.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr C Fitzgerald | Victorian Government Solicitor’s Office |
HIS HONOUR:
Mr McKechnie applies for an order for preliminary discovery of documents under r 32.05[1] concerning the payment of an amenities allowance to prisoners in Victoria, which he says has been discontinued. He has been a prisoner in Victoria for many years and since 17 January 2023 at Port Phillip Prison.
[1]Supreme Court (General Civil Procedure) Rules 2015.
The documents that Mr McKechnie seeks
Mr McKechnie’s request for preliminary discovery of documents was narrowed during the hearing to the following weekly payments:
1.any document or documents that describe all of the human rights considerations made with respect to the decision to provide to him a weekly payment during the period 5 April 2017 to 19 August 2021; and
2.any document or documents that describe all of the human rights considerations made with respect to the decision to not provide to him a weekly payment during the period 5 April 2017 to 19 August 2021.
Mr McKechnie’s evidence
Mr McKechnie, in his supporting affidavit, stated that it was highly probable that the defendants had documents which would disclose a cause of action determining the lawfulness, or otherwise of the decision to discontinue the weekly payment, which he called the ‘amenities allowance’ made to him and all others held in custody who were not otherwise provided funds by the Commissioner of Corrections, the third defendant. I shall on occasion refer collectively to all the defendants as ‘Corrections Victoria’. Mr McKechnie said that he had researched the matter of the amenities allowance and had considerable experience with correctional matters. He contended that the amenities allowances had been paid to prisoners for at least 30 years until it was discontinued in January 2018. He said that the payments to him ceased at that time without change in his circumstances or any apparent legislative change.
Mr McKechnie suspected that the amenities allowance was probably made as part of Corrections Victoria’s observance of prisoners’ human rights and allowed prisoners access to the Courts by making phone calls to lawyers, posting a letter or printing a legal document. Prisoners without funds could not take these steps. The payments also enabled prisoners to purchase basic items such as toiletries.
Mr McKechnie has refused to work in a prison industry and Corrections Victoria says that is why he has not received any payment in recent years.
Defendants’ evidence
Ms Melissa Westin, at the time Acting Commissioner of Corrections Victoria, made an affidavit stating that prison records recorded no payment to Mr McKechnie which could be characterised as an amenities allowance. She stated that no amenities allowance was or had been paid to prisoners in Victoria. Therefore, there are no documents that provide any reasons as to why an amenities allowance was paid or discontinued.
Ms Westin explained that payment of monies to prisoners in Victoria was governed by internal policy documents:
(a) The ‘Commissioner’s Requirements (Prisoner Monies)’ which are applicable across public and private prisons;
(b) ‘Deputy Commissioner’s Instructions 3.03 Prison Industries’ which are applicable only in public prisoners.
Paragraphs 5.1 and 5.2 of the Commissioner’s Requirements (Prisoner Monies) describe the only circumstances in which prisoners are entitled to monetary payments from Corrections Victoria. Paragraph 5.1 states that payments will be made to prisoners for:
(a) work undertaken in a work program;
(b) attendance at a prisoner program; or
(c) other purposes provided for at the Commissioner’s discretion.
Paragraph 5.3 states that prisoners who are on remand or unable to work due to illness, disability, or age, will be paid at a minimum rate. The Scale of Earnings in the Commissioner’s Requirements includes an exhaustive list of the payments that may be paid to ‘Unemployed/Unavailable Prisoners’. It provides:
Dismissed or refusing to work (however, must ensure access to essential toiletries):
Nil
Prisoners classified as Long Term Management:
$5.70 per week dayRemand Prisoners / prisoners with short-term illnesses (short term illness is less than 4 weeks):
$3.30 per week dayPrisoners aged over 65 years:
$6.00 per week dayPrisoners suffering a long term certified illness, including a psychiatric illness and disabled prisoners (long term illness is greater than 4 weeks):
$6.00 per week dayPersons subject to a Detention Order
$6.00 per week day unless otherwise engaged in employmentPolice custody (prisoners who, subsequent to reception at the prison, are transferred to police custody while in transit to and from court or who are under police protection):
$3.30 per week day
The Deputy Commissioner’s Instructions establish the organisational framework and infrastructure to facilitate prisoner’s employment. The first operating principle of the Instructions is that:
Corrections Victoria will provide meaningful and productive work for all sentenced prisoners to assist them to develop useful employment skills which can be utilised in the labour market within the community.
‘The policy relating to payments’ is set out in Part 1.9 and specifies that ‘[p]risoners who refuse to work must not be paid’.
Ms Westin stated that payments to a prisoner’s accounts for prison monies are made through an automated system which issues weekly payments based on how that prisoner is categorised within the system. She reviewed Mr McKechnie’s records for the period March 2017 to January 2018, when he was at Hopkins Correctional Centre, which was a period in which he claimed to have received an amenities allowance. She stated that no payment was recorded which could be characterised as an amenities allowance. He received an orientation allowance of $6.50 per week day for the first three weeks while he participated in the prisoner orientation program and an unemployed payment of $3.30 per week day for periods when he was unemployed.
On various occasions during 2017, Mr McKechnie was classified as ‘dismissed/refusing to work’ when he was found to be voluntarily unemployed. This classification resulted in him receiving no payment. In January 2018, he was re-classified as ‘dismissed/refusing to work’ after the Case Management Review Committee confirmed that his unemployment was voluntary. I take that to mean that Mr McKechnie had refused to perform work. Ms Westin stated that he maintained that classification to 19 August 2021, which was the date of her affidavit. Mr McKechnie’s own submissions to the Court suggest that he has continued to refuse to work in a prison industry or at least to refuse the work available to him in a prison industry.
The defendants also relied on an affidavit by Ms Anna Pejovic, a lawyer with the Victorian Government Solicitor’s Office. She stated that in July 2021 her office twice wrote to Mr McKechnie requesting further information to assist in identifying the amenities allowance on which he relied, but he did not reply.
The Corrections Regulations
The Corrections Regulations 2019 in ‘Part 4 - Prisoner’s money’ provide in reg 43 ‘Remuneration’:
(1) A prisoner must be paid remuneration for up to 30 hours per week for–
(a) work done by the prisoner in a prison industry; and
(b)attendance at an educational, treatment or rehabilitation program.
(2)Despite subregulation (1) a person may be paid remuneration for more than 30 hours per week for work done by the prisoner in an essential work programme.
(3)A prisoner must be paid remuneration at a minimum rate if the prisoner is–
(a)on remand; or
(b)in police custody; or
(c)unable to work due to illness, disability or age.
(4)If a prisoner refuses to work in a prison industry or is dismissed from work in a prison industry, the prisoner–
(a)is not entitled to be paid remuneration under this regulation; and
(b)must be supplied with essential toiletries by the prison.
Note
Essential toiletries include soap, toothpaste and, for women, sanitary products
Submissions
Mr McKechnie’s case was that, for more than 30 years, a weekly payment has been made to prisoners held in custody in Victoria. The purpose of the payment was to ensure that prisoners would have some minimum weekly payment to purchase basic items such as toiletries, and to exercise human rights by accessing the courts through, for example, communicating with lawyers by telephone or regular mail. He emphasised the importance of the common law right of access to the courts. Since payments of the allowance ceased in January 2018, for the first time since he has been in custody, he has been left with no weekly payment.
Mr McKechnie contended that the objective of preliminary discovery was to aid efficiency and that the standard by which the criteria of r 32.05 was to be met must be proportionally measured relative to the nature of the matter and the documents sought. He submitted that his application was clear and simple and as a result of his narrowing the documents that he sought, it fulfilled the criteria of r 32.05. He wanted to ascertain whether there had been any consideration of human rights in respect of the weekly payments made to prisoners.
Mr McKechnie stated that he had made his position ‘clear from the beginning that [he] wouldn’t be working within the prison from day one’.[2] He believed that a requirement that prisoners work to obtain the weekly payment bordered on servitude or slavery.[3] The prison work that he was offered was menial, would not have increased his chance of obtaining work or improving his skills and would have been a waste of time.[4]
[2]Transcript of Proceedings, McKechnie v Secretary of the Department of Justice & Ors, S ECI 2021 01652, Ginnane J, 19 May 2023, 21-22.
[3]Ibid 22.
[4]Ibid.
Mr McKechnie argued that his common law right of access to the courts was infringed by the absence of funds to pay for telephone calls or to post letters. He was unaware why he had ceased receiving payments of the allowance. The defendants solicitors’ requests for information from him about the amenities allowance on which his initial request for preliminary discovery was based were ‘ridiculous’.[5]
[5]Ibid 20.
The Defendants’ submissions
The defendants submitted that Mr McKechnie’s application for preliminary discovery did not satisfy the prerequisites of r 32.05. The first prerequisite was that he establish that there was reasonable cause to believe that he ‘has or may have the right to obtain relief in the Court from the [defendants]’. Something more than a mere assertion of belief or ‘mere hunch’ was required.[6] He had not established that prerequisite. Nor had he satisfied the second prerequisite that ‘after making all reasonable inquiries’, he did not have ‘sufficient information to decide whether to commence a proceeding in the Court to obtain that relief’. The third prerequisite was that he establish the existence of reasonable cause to believe that the defendants had or are likely to have in their possession ‘any documents relating to the question whether [he] has the right to obtain the relief’ and ‘that inspection of the documents by [him] would assist [him] to make that decision.[7] He had not established that inspection of documents would assist him to make the decision whether he had the right to obtain relief or to identify what he was lacking to make that decision.
[6]Schmidt v Won [1998] 3 VR 435, 445.
[7]Asahi Beverages Pty Ltd v RFGA Management Pty Ltd [2018] VSC 606, [33]-[35].
The defendants submitted that there was no evidence of any record of any amenity allowance being paid to Mr McKechnie or to other prisoners in Victoria. The amounts that he had received in the past could reasonably be assumed to have been unemployment payments, made when prison work was unavailable to him. The evidence was that Mr McKechnie had ceased receiving payments after he was re-classified as ‘dismissed/refusing to work’. The evidence also was that there were no documents that provide any reasons as to why an amenities allowance was paid or discontinued.
The defendants argued that Mr McKechnie has not made all reasonable inquiries before commencing his application. He did not make any formal requests for documents, including the categories of documents he now seeks.
The defendants also relied on the power to order preliminary discovery being a discretionary power. That discretion should be exercised against the grant of Mr McKechnie’s application as he had delayed for more than three years in commencing the proceeding and had not requested documents from the defendants during that period. The evidence is that he never received an amenities allowance, and that payments to him had ceased because of his voluntary decision not to perform work.
The defendants submitted that insofar as Mr McKechnie’s claim was based on the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), it needed to be accompanied by a claim for relief or a remedy based on arguments that a decision by the defendants was unlawful otherwise than because of the Charter, for instance that a decision to discontinue weekly payments to Mr McKechnie, or prisoners generally, was unlawful.[8] Mr McKechnie had not identified such a claim. Furthermore, the defendants had not infringed any Charter right of Mr McKechnie even if they had discontinued weekly payments to him as any such payment was a gratuity. The reason that he was not receiving any weekly payment was because he refused to work in a prison industry. In those circumstances, the Corrections Regulations did not permit payments of remuneration to him.
[8]Section 39(1) of the Charter.
Analysis
Mr McKechnie’s application for preliminary discovery is made under r 32.05. The power given by that rule is discretionary. An applicant for an order for preliminary discovery must establish:
(a) that there is ‘reasonable cause to believe’ that he ‘has or may have the right to obtain relief in the Court’ from the defendants;
(b) ‘after making all reasonable inquiries’, the applicant does not have ‘sufficient information to decide whether to commence a proceeding in the Court to obtain that relief’; and
(c) that ‘there is reasonable cause to believe that’ the defendants ‘[have] or [are] likely to have or has had or are likely to have had’ in their possession ‘any document relating to the question whether the applicant has a right to obtain the relief’ and ‘that inspection of the document by the applicant would assist [him] to make the decision’.
I accept Ms Westin’s evidence the effect of which was that because Mr McKechnie has been classified as ‘refusing to work’ he has not been receiving any payments. I also accept her evidence that no amenities allowance was paid to prisoners in Victoria and that there are no prison records that provide any reasons as to why an amenities allowance was paid or discontinued. I accept that evidence because it is based on Ms Westin’s review of relevant prison records. Based on that evidence, I consider that Mr McKechnie has not established that he has reasonable cause to believe that he has or may have the right to obtain relief against the defendants because he has not been paid an amenities allowance or other weekly payment. He, of course, does not have to establish for the purposes of this application that he would obtain that relief against the defendants at a final hearing of a proceeding that he may commence. But, because he was unwilling to work in a prison industry, reg 43 of the Corrections Regulations prevented any remuneration being paid to him and there was no evidence that he was entitled to any other payment or allowance. As a result, he is unable to bring a claim of unlawfulness arising because of actions by the defendants incompatible with his human rights under the Charter. He also has not identified any arguable case that the discontinuance of weekly payments previously made to him was unlawful on non-Charter grounds.[9] Whilst, Mr McKechnie’s ‘narrowed application’ seeks preliminary discovery of documents that describe human rights considerations relating to weekly payments, rather than just payment of amenities allowances as his initial application did, the prohibition in reg 43 prevents payment of any remuneration to prisoners who refuse to work in a prison industry. Ms Westin’s evidence establishes that there is no record of weekly payments other than remuneration being made to Mr McKechnie at relevant times other than the initial orientation payments and unemployment payments. There is no record of an amenities allowance being paid to him.
[9]Charter s 39(1).
Secondly, Mr McKechnie has not established that he has made all reasonable inquiries as required by r 32.05(b). He has not engaged with the defendants in response to their solicitor’s letters of July 2021 or since their submissions were served in February 2023 explaining why no payments were made to him. I have taken into account that some of Mr McKechnie’s records are still at other prisons and that he has limited computer access,[10] but that does not explain his failure to respond to requests from the defendants’ solicitors for information about the documents that he was seeking.
[10]See affidavit of Andre McKechnie, 20 March 2023 and the affidavit of Melissa Westin, 6 December 2022 and McKechnie v State of Victoria (Computer Judgment) [2023] VSC 259.
Thirdly, based on my acceptance of Ms Westin’s evidence, Mr McKechnie has not established, as is required by r 32.05(c), that he has reasonable cause to believe that the defendants may have in their possession documents relating to the question of whether he has the right to obtain the relief that he seeks and that inspection of those documents would help him make the decision. As mentioned, I have accepted Ms Westin’s evidence that there are no documents that provide any reasons as to why the amenities allowance was paid or discontinued.
Charter rights
Mr McKechnie seeks documents showing human rights considerations in the decisions to provide him with a weekly payment and the decisions not to provide him with such payments during the period 5 April 2017 to 19 August 2021.
Mr McKechnie submitted that if he was forced to work to obtain a payment or allowance that would be slavery and servitude. Section 22(1) of the Charter requires that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
As mentioned, Mr McKechnie is not entitled to seek relief or remedy on the ground that the defendants have acted incompatibly with his Charter rights unless he has at least an arguable case that he otherwise may seek relief or remedy in respect of an unlawful act or decision of the defendants. Mr McKechnie has not identified any other such relief or remedy that he could seek or could arguably seek. He therefore has not established that there is reasonable cause to believe that he has, or may have, the right to obtain relief in the Court from the defendants, as r 32.05(a) requires, based on Charter grounds.
Ms Westin’s evidence establishes that Corrections Victoria has determined Mr McKechnie’s entitlement to payments in accordance with the Corrections Regulations on the basis that he is not entitled to payment of remuneration if he refused to work in a prison industry. Corrections Victoria cannot force him to work; rather, he has the choice of whether to work or not. But if he chooses not to work, he is not entitled to payment of remuneration. Ms Westin’s evidence also established that no amenities allowance was ever paid to Mr McKechnie and there is no evidence of other payments being made to him at relevant times.
There is another and related reason why Mr McKechnie cannot claim relief or a remedy under the Charter in respect of his claims of discontinuance of weekly payments, at least in respect of remuneration. Section 38 of the Charter states:
(1) Subject to this section, it is unlawful for a public authority to act in an way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.
As mentioned, the Correction Regulations provide that a prisoner who refuses to work in a prison industry is not entitled to be paid remuneration. Mr McKechnie conceded that he refused to so work. Therefore, by reason of s 38(2) of the Charter, ’under law’ ‘the public authority could not reasonably have acted differently or made a different decision’ than to not pay him remuneration. This exception to the operation of s 38(1) reflects the fact that legislation that is incompatible with Charter rights is nevertheless valid and enforceable.[11] Corrections Victoria was therefore under no obligation to give consideration to human rights in determining whether to pay remuneration to Mr McKechnie or not to do so. Therefore, even if Corrections Victoria had failed to consider his relevant human rights in discontinuing payments of remuneration to him, it would not have been acting unlawfully. I repeat I accept Ms Westin’s evidence that no amenities allowance was ever paid to him or other prisoners and that he received no other relevant payments.
[11]Bare v IBAC (2015) 48 VR 129 [325]-[326]; DPP v Kaba (2014) 44 VR 526, [447].
I therefore dismiss Mr McKechnie’s application for preliminary discovery. As his originating motion commencing this proceeding only contained that application, the appropriate orders would appear to be that the originating motion and, therefore, the proceeding must both be dismissed. However, I will give the parties the opportunity to make written submissions about the form of orders that I should make and about costs.
SCHEDULE OF PARTIES
| BETWEEN: | |
| ANDRE McKECHNIE | Plaintiff |
| AND | |
| SECRETARY OF THE DEPARTMENT OF JUSTICE | First Defendant |
| MINISTER FOR CORRECTIONS VICTORIA | Second Defendant |
| COMMISSIONER FOR CORRECTIONS VICTORIA | Third Defendant |
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