Minogue v Shuard
[2016] VSC 797
•23 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 00322
| CRAIG WILLIAM JOHN MINOGUE | Plaintiff |
| v | |
| JAN SHUARD (in her capacity as the Correctional Services Commissioner) | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 August 2016 |
DATE OF JUDGMENT: | 23 December 2016 |
CASE MAY BE CITED AS: | Minogue v Shuard |
MEDIUM NEUTRAL CITATION: | [2016] VSC 797 |
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JUDICIAL REVIEW – Plaintiff undertaking diploma of counselling – Study not approved by Corrections Victoria – Plaintiff initially advised to cease study – Plaintiff subsequently informed that his study was not supported but that receipt and dispatch of mail would be subject to normal protocols – Claim for declaratory relief dismissed on discretionary grounds – Corrections Act 1986 ss 47(1)(n) and (o) – Charter of Human Rights and Responsibilities Act 2006 s 15(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No Appearance | |
| For the Defendant | Ms C M Harris | Victorian Government Solicitor |
HIS HONOUR:
The plaintiff has been serving a term of imprisonment since 1986, having been convicted of murder. Since December 2013, Dr Minogue has been enrolled as a full fee paying student in a diploma of counselling. The course is delivered by the Australian Institute of Professional Counsellors (‘AIPC’).[1] On 9 November 2015, Dr Minogue received a letter from Brendan Money, the Assistant Commissioner of the Sentence Management Branch in the Department of Justice and Regulation. That letter stated in part:
I advise that the Commissioner recently determined that your ongoing participation in a Diploma of Counselling provided via the Australian Institute of Professional Counsellors is not supported.
The Commissioner’s decision was based on the process by which you commenced these studies, whereby due process was not followed. In addition, it was determined that the nature of such studies was not suitable when considering your offending history. While I acknowledge that prisoners may access a range of educational pursuits provided through external providers, Corrections Victoria is obliged to assess the suitability of all studies against the individual prisoner’s needs and circumstances.
It is therefore advised that you cease your studies in the Diploma of Counselling in accordance with the Commissioner’s decision. Access to this course will no longer be available whilst you remain in custody, you are however able to apply via Loddon Prison’s education officer to partake in other avenues of study, which will be assessed on merit.
The Loddon Prison General Manager will be notified of Corrections Victoria [sic] position on this course and make appropriate arrangements in respect of AIPC Mail.[2]
[1]Exhibit P1: Affidavit of Craig Minogue sworn 8 January 2016, [17].
[2]Ibid “Education Letters 01”.
In mid-December 2015, Dr Minogue received further correspondence from Mr Money. That letter stated in part:
As per my last letter, dated 9 November 2015, you have been formally requested to cease your education in a Diploma of Counselling through the Australian Institute of Professional Counsellors (AIPC). I reiterate that the decision was made of [sic] the basis of how you commenced your studies, whereby you did not apply via the correct avenues. Instead, you engaged in such studies directly with the provider. In addition, the nature of such studies was deemed inappropriate due to your offending history, and would not have been supported by Corrections Victoria had you applied through the correct avenues regardless. I have made arrangements with Loddon Prison’s General Manager to place in your property any incoming mail from the AIPC. This will ensure there is no ongoing confusion regarding Corrections Victoria’s position on your ongoing participation in this course.[3]
[3]Ibid.
The reference to incoming mail from AIPC being placed ‘in your property’ is a reference to mail not being passed on to a prisoner.[4]
[4]Exhibit P2: Affidavit of Craig William John Minogue sworn 30 May 2016, [50]-[53]; Corrections Regulations 2009 (Vic) reg 34(1).
On 10 May 2016 Debra Coombs, Principal Solicitor, Victorian Government Solicitor’s Office, wrote to Dr Minogue. That letter stated in part:
We are instructed that the Commissioner for Corrections Victoria does not and will not support you in the counselling course you are presently undertaking with the Australian Institute of Professional Counsellors.
We are instructed that your mail has been and will continue to be processed within Loddon Prison under the usual mail protocols required by the Corrections Act 1986 and the Corrections Regulations 2009. It will be stopped or censored only when required or permitted under the Act or Regulations.[5]
[5]Exhibit A: Affidavit of Roderick Wise sworn 12 May 2016, “RJW–2”.
Dr Minogue replied to Ms Coombs’ letter on 12 May 2016. His letter stated in part:
I fully understand, and fully accept, as you advise in your letter:
‘that the Commissioner for Corrections Victoria does not and will not support [me] in the counselling course [I am] presently undertaking with the Australia [sic] Institute of Professional Counsellors.’
I do not want, and I do not need, and I will not accept, any ‘support’ from Corrections Victoria for the counselling course I am presently undertaking.
I understand, and I fully accept, as you advise in your letter that items of mail will:
‘be processed within Loddon Prison under the usual mail protocols required by the Corrections Act 1988 [sic] and the Corrections Regulations 2009. It will stopped or censored only when required or permitted under the Act and the Regulations.’
All I have ever asked for is that the law be applied inside the prison.
Thank you for making the situation clear to me.[6]
[6]Exhibit C: Affidavit of Debra Coombs sworn 1 August 2016, “DJC–1”.
By an amended originating motion dated 24 July 2016, Dr Minogue seeks relief in the nature of certiorari quashing the decision in respect of his participation in the diploma of counselling course,[7] as conveyed to him in the letters from Mr Money dated 9 November 2015, and the undated letter received by him in mid-December 2015. In addition, Dr Minogue seeks two declarations:
[7]Amended Originating Motion between Parties dated 24 July 2016, [19].
A declaration by the Court, that the ‘Distance Education Policy and Procedural Framework’ dated 8 August 2014 by the Education Training and Employment Branch has the effect of unlawfully limiting the operation of the Plaintiff’s:
(a)s 47(1)(o) right to take part in educational programmes in the prison;
(b) s 47(1)(n) right of communication by letters.
A declaration by the Court, that the ‘Distance Education Policy and Procedural Framework’ dated 8 August 2014 by the Education Training and Employment Branch has the effect of unlawfully limiting the operation of the human right of ‘freedom of expression’ as it is defined by s 15(2)(b)(c) [sic] of the Charter.[8]
[8]Ibid [28]–[29].
It is clear from the exchange of correspondence between Dr Minogue and Ms Coombs in May 2016 that he is not currently subject to any restrictions in relation to his participation in the counselling course, other than those provided for in the Corrections Act 1986 and Corrections Regulations 2009. Further, notwithstanding the terms of Mr Money’s correspondence of 9 November 2015 and mid-December, Dr Minogue has at all times continued to participate in the counselling course and to receive and dispatch mail related to the course. Nevertheless, Dr Minogue contends that the effect of the correspondence he received from Mr Money in November and December 2015 was to limit the operation of the rights conferred upon him by ss 47(1)(n) and (o) of the Corrections Act 1986:
I have NOT claimed that letters have been stopped, censored or removed from me. My claim has always been that the decision of the Defendant as particularised on the face of the record in the 2 letters from Assistant Commissioner Money had the effect of limiting the operation of my ss 47(1)(n) & 47(1)(o) rights. This is a totally different claim from saying that AIPC letters have been stopped, censored or removed from me.
The misleading recasting of my claims are so often repeated that I have to repeatedly answer them by saying that it has always been my claim that when the Defendant made the decision, and when the reasons for that decision were communicated to me in the 2 letters from Assistant Commissioner Money, that it was at this moment in time, that my ss 47(1)(n) & 47(1)(o) rights were unlawfully limited in their operation.
The Defendant made a decision and explained the effect of that decision in writing to me on 2 occasions saying: ‘your letters will be stopped’ and ‘you won’t be allowed to continue with your course while in custody’. When such a decision is made and the effect is particularised like this, then it is in this moment that the operation of the right is limited. To say: ‘We said we were going to limit the operation of his rights, but we didn’t get around to it, so no harm was done’ is nonsense, and the Court should not accept such nonsense.[9]
[9]Plaintiff’s ‘Final Written Submission in Place of Oral Submissions’ dated 8 August 2016, [58]–[60] (emphasis in original).
Relief in the nature of certiorari and declaratory relief are discretionary.[10] There is currently no factual controversy regarding Dr Minogue’s participation in the counselling course, or his receipt and dispatch of mail associated with his participation in that course. It is correct that the correspondence from Mr Money to Dr Minogue in November and December 2015 advised Dr Minogue to cease his participation in the course, and that he would not be able to access incoming mail from AIPC. However, thereafter no restrictions were placed on Dr Minogue’s participation in the course, and no restrictions have been placed upon his dispatch or receipt of mail associated with his participation in the course. The question of whether the correspondence from Mr Money in November and December 2015 did in fact infringe Dr Minogue’s rights under s 47(1)(n) of the Corrections Act 1986 is hypothetical. Assuming in Dr Minogue’s favour that these provisions confer upon him the rights for which he contends, those rights were never breached.
[10]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [17] (Nettle JA); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-2; Rich v Groningen (1997) 95 A Crim R 272, 278.
If there was an ongoing controversy regarding Dr Minogue’s participation in the counselling course it would have been necessary for the Court, as a precondition to granting Dr Minogue the relief he seeks, to determine whether he had an enforceable legal right to participate in the counselling course. Unless Dr Minogue could establish an entitlement to mandamus to enforce a legal right to participate in the counselling course, there would be no utility in the grant of certiorari. Mandamus is not available to compel the exercise of a discretion.[11]
[11]Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, [99]–[100]; Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593, [21].
The rights of a prisoner in a Victorian prison are prescribed by s 47(1) of the Corrections Act 1986. These include the right in s 47(1)(o) ‘to take part in educational programmes in the prison’. Dr Minogue contends that he had an enforceable legal right pursuant to s 47(1)(o) to undertake the counselling course, notwithstanding that he received no support from the prison authorities in doing so. He contends that he has this right irrespective of whether the prison authorities approve of his participation in the course.
The defendant led evidence regarding supported and unsupported educational programmes. Mr Wise deposed to the following matters:
5.The Corrections Act 1986, section 47(1)(o) gives prisoners the right to take part in educational programs in the prison. Given the significant levels of disadvantage within the prisoner population, the education services in prisons focus on general education including literacy, numeracy, a range of vocational training options including computers, hospitality, forklift driving, and engineering, together with language, literacy and numeracy assessments and vocational counselling. These education services are aimed at maximising the prospect of employment for prisoners upon release.
6.All prisons, including Loddon Prison where the plaintiff is accommodated, employ a Senior Education Officer (‘SEO’) whose duties include motivating prisoners to undertake education and training. The SEO also supports a small number of prisoner students who enrol in courses offered by outside universities and educational institutions in distance education courses. The SEO assists prisoners by accessing web-based lecture notes and course readings and submitting assessable work for them, because no prisoner is permitted to access the internet.
7.Due to the number of prisoners wishing to enrol in distance education, they are not all able to be supported by the SEO. Some prisoners have material sent in by family members and friends. The distance education material provided from the educational institution to prisoners is processed within the prison under the usual mail protocols required by the Corrections Act and the Corrections Regulations 2009.
8.The process for prisoners undertaking distance education not supported by the SEO is described in the Distance Education Policy and Procedural Framework, section 6.8. Although the final form of the Framework was not approved until 8 August 2014, it describes long-standing practice in relation to education in the prison system.[12]
[12]Exhibit A: Affidavit of Roderick Wise sworn 12 May 2016, [5]–[8].
Had I concluded that there was an extant factual controversy regarding Dr Minogue’s participation in the counselling course, it would have been necessary to determine whether the counselling course provided by the AIPC is an ‘educational programme in the prison’ within the meaning of s 47(1)(o).
Plainly, there is a significant qualitative difference between vocational training courses of the type deposed to by Mr Wise, and a diploma course provided by a third party provider without the approval of the prison authorities. It is certainly arguable that whilst the former constitute ‘educational programmes in the prison’, the latter does not. The fact that Dr Minogue is physically present in the prison whilst undertaking the course does not necessarily confer upon the course the status of being an educational programme ‘in the prison’. On one view, an educational programme ‘in the prison’ is one which is made available to prisoners through the auspices and with the approval of the prison authorities. Such a course would not necessarily have to be delivered within the physical confines of the prison. To the extent that it was delivered by a third party provider it would, however, have to be approved by the prison authorities. It is therefore arguable that Dr Minogue has no enforceable legal right to undertake the diploma of counselling. His capacity to undertake the course is subject to the discretion of prison authorities.
In light of my conclusion that there is no extant controversy between Dr Minogue and the defendant regarding his participation in the counselling course, it is unnecessary for me to express any concluded view on the question of whether he has an enforceable legal right under s 47(1)(o) of the Corrections Act 1986 to participate in that course. The determination of that question, which has significant ramifications for other prisoners undertaking studies through third party providers, should await a proceeding in which there is a live controversy regarding the operation of s 47(1)(o).
The Distance Education Policy and Procedural Framework (‘the Policy’) dated 8 August 2014 includes the following statement:
If it becomes apparent that a prisoner is participating in unsupported DE [Distance Education], without approval from the R&A Committee, the prisoner will be required to make an application for consideration as to whether study can continue. All non-approved prisoners will have all course material (forwarded by external providers) restricted.[13]
[13]Ibid “RJW–1”, 9.
It is the section of the Policy set out above which underpins Dr Minogue’s claim for declaratory relief. He seeks a declaration that the Policy unlawfully limits the right conferred upon him by s 47(1)(o) to take part in educational programmes in the prison, as well as the right conferred by s 47(1)(n) to send and receive letters uncensored by prison staff. In addition, Dr Minogue seeks a declaration that the Policy unlawfully limits the operation of the right of freedom of expression under ss 15(2)(b) and (c) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
The discretionary considerations which weigh against the grant of certiorari apply with equal force in respect of Dr Minogue’s application for declaratory relief. There is no extant controversy between Dr Minogue and the defendant regarding his right to participate in the counselling course or to send and receive correspondence relating to his participation in the course. The declaratory relief he seeks is hypothetical. Absent this obstacle to the grant of declaratory relief, it would have been necessary for the Court to determine whether he does in fact have an enforceable legal right under s 47(1)(o) to participate in the counselling course. It would also have been necessary to determine whether, if Dr Minogue does not have an enforceable legal right in the counselling course, he nevertheless has a right pursuant to s 47(1)(n) to send and receive correspondence relating to that course. The determination of these questions should await a proceeding to which there is an extant controversy regarding the operation of the Distance Education Policy and Procedural Framework.
For the reasons set out above, I also decline to grant Dr Minogue the declaration he seeks in respect of ss 15(2)(b) and (c) of the Charter. No question arises as to whether Dr Minogue’s freedom of expression has been limited by the application of the Policy. As he acknowledged in his response to Ms Coombs by letter dated 12 May 2016, his right to correspond with AIPC is subject to the same protocols under the Corrections Act 1986 and Corrections Regulations 2009 which apply in respect of all prisoners. The interrelationship between the rights arising under s 15(2) of the Charter and the rights conferred upon prisoners by the Corrections Act 1986 is a matter with significant potential ramifications for all prisoners in Victoria. The determination of this issue should await proceedings in which the application of s 15(2) can be considered in the context of an extant controversy.
Conclusion
For the reasons set out above, Dr Minogue’s application for relief in the nature of certiorari and for declaratory relief is rejected.
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