Supreme Court of the ACT|2018-11-23|Before: McWilliam AsJ

Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 (23 November 2018)

Islam v Director-General of the Department of Justice and Community Safety Directorate

Proceedings no. SC 248 of 2017 and no. SC 249 of 2017 are dismissed.

HUMAN RIGHTS - prison facilities - religious freedom - freedom of education - whether conduct by prison as a public authority contravened Human Rights Act 2004 (ACT) ss 14, 19, 27A - where failure to provide vegetarian food to a prisoner who was a practising Muslim - where policy allowed arbitrary charges for printing facilities - whether limitation of rights justifiable

Court Procedure Rules 2006 (ACT) rr 40, 102, 111, 425, 1401, 6015

Corrections Management (Provision of Meals) Policy 2011 (ACT)

Corrections Management (General Operating) Policy 2010 (ACT)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 28 January 1993)

Anufrijeva v Southwark London Borough Council: [2003] EWCA Civ 1406; [2004] QB 1124

Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473

Clark v Commissioner for Corrective Services [2016] NSWCA 186

Cuming Campbell investments Pty Ltd v Collector of Imposts (Victoria) (1938) 60 CLR 741

Eastman v Besanko [2009] ACTCA 23

Eastman v CEO, Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161

Eastman v Chief Executive, Department of Justice and Community Safety [2011] ACTSC 33

European Convention on Human Rights: R. (on the application of Douglas) v North Tyneside MBC [2004] EWCA Civ 1847; [2004] 1 All ER 709

Flynn v The King [1949] HCA 38; (1949) 79 CLR 1

Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337

Haigh v Ryan [2018] VSC 474

Hoffman v South African Airways [2000] ZACC 17 2001 (1) SA 1

Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38

Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60

Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20

K v Commissioner for Corrective Services [2017] NSWSC 311

Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86

Lewis v Australian Capital Territory [2018] ACTCA 49

Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267

Masoud v R; Viet Dung Tran v R [2000] FCA 435

Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70

Momcilovic v R [2011] HCA 34, 245 CLR 1

Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593; 48 VR 119

R v Oakes [1986] 1 SCR 103

R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673

R (Williamson and Ors) v The Secretary of State for Education and Employment (Williamson) [2005] UKHL 15; (2005) 2 AC 246

Re application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235

Taunoa v Attorney-General (2004) 7 HRNZ 379

Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429

Weaven v Secretary to the Department of Justice [2012] VSC 582

Director-General, Justice and Community Safety Directorate (Defendant)

SC 248 of 2017; SC 249 of 2017

1. Mr Islam (the plaintiff in each proceeding) is currently a prisoner at the Alexander Maconochie Centre (AMC). He has brought two proceedings complaining about the conditions of his detention at the AMC, which he says have breached certain human rights, set out in the Human Rights Act 2004 (ACT) (the Act).

2. The first proceeding concerns the system in place at the AMC for providing food to prisoners with particular dietary needs. The plaintiff is a Muslim and does not eat certain foods, such as processed chicken. The second proceeding concerns the AMC's policy in how it charges for printing education-related material, which Mr Islam alleges is arbitrary and applied in a way discriminatory to him. At the time he commenced the proceedings, Mr Islam was in the process of completing requirements for a PhD qualification.

3. The Director-General of the Justice and Community Safety Directorate (Director-General) is the defendant to each claim, as she is the head of the executive branch of government responsible for the operations of the AMC.

Relief sought in the two claims before the Court

4. Proceedings SC 248 of 2017 were commenced by originating application on 5 July 2017 and were last amended on 23 October 2017. The relief sought is an order that the defendant "take reasonable steps" to replace the current food ordering system with an approved, amended system. In addition, Mr Islam makes a specific complaint about failing to receive a vegetarian roll for lunch on 2 July 2017. On that date, he was instead provided with a roll containing processed chicken, and his request for a vegetarian roll in substitution was declined. He seeks a replacement vegetarian roll. It is important to record, however, that such complaint is part of what the plaintiff alleges is a broader failure of the system being implemented by the AMC for those who have particular dietary requests for religious or cultural reasons. For ease of reference, I will describe this proceeding as the 'Food Claim'.

5. Proceedings SC 249 of 2017 were commenced by originating application on 10 July 2017 and last amended on 13 November 2017. The plaintiff seeks an order that the defendant "take reasonable steps to replace the current inmate education printing fee-charging system with an improved, non-arbitrary system". For ease of reference, this proceeding will be referred to as the 'Printing Claim'.

6. The plaintiff asserts his complaints in respect of the Food Claim constitute breaches of ss 14 and 19(1) of the Act. Section 14 is in the following terms:

(1) Everyone has the right to freedom of thought, conscience and religion. This right includes -

(a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.

(2) No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

8. With respect to the Printing Claim, the plaintiff relies upon s 27A, which provides (emphasis added):

(1) Every child has the right to have access to free, school education appropriate to his or her needs.

(2) Everyone has the right to have access to further education and vocational and continuing training.

(3) These rights are limited to the following immediately realisable aspects:

(a) everyone is entitled to enjoy these rights without discrimination;

(b) to ensure the religious and moral education of a child in conformity with the convictions of the child's parent or guardian, the parent or guardian may choose schooling for the child (other than schooling provided by the government) that conforms to the minimum educational standards required under law.

9. Mr Islam relies upon the words of the section emphasised above.

10. Section 28 of the Act is also relevant to the issue under consideration. It provides:

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

11. Section 40B creates the obligation on public authorities to comply with the Act. Section 40B(1) provides:

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

12. A contravention of the Act can arise upon either of those alternatives, the first being a substantive limb and the second a procedural limb. The plaintiff's case was essentially based upon the substantive limb of the section, although presumably because the plaintiff was self-represented, the Director-General has given consideration to each aspect, and the Court will do likewise.

13. A person who claims that a public authority has acted in contravention of s 40B, and is a victim of the contravention may start a proceeding in the Supreme Court against the public authority: ss 40C(1) and 40C(2) of the Act.

14. The Court may grant the relief it considers appropriate, except damages: s 40C(4) of the Act.

15. Section 40C does not affect other rights a person may have in relation to an act or decision of a public authority (such as a right of judicial review), or a right a person may otherwise have to damages apart from the section: s 40C(5) of the Act.

16. The defendant accepts she is a "public authority" to which the Act applies. The defendant is also taken to be the Territory for the purposes of s 34(1) of the Act.

17. The Corrections Management Act 2007 (ACT) (Corrections Act) is also relevant to the issues before the Court. The explanatory statement to the Corrections Management Bill 2006 (ACT) (pp 2, 7) confirms that the Corrections Act was drafted on the basis that its provisions formed reasonable limitations on a detainee's human rights under the Act: see Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 (Islam No. 1) at [75] per Mossop M (as his Honour then was).

18. The Corrections Act includes as its "main objects" in s 7 (emphasis added):

The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by -

(a) ensuring the secure detention of detainees at correctional centres; and

(b) ensuring justice, security and good order at correctional centres; and

(c) ensuring that detainees are treated in a decent, humane and just way; and

(d) promoting the rehabilitation of offenders and their reintegration into society.

19. Section 8 of the Corrections Act concerns the management of correctional services. It is in mandatory terms (emphasis added):

Correctional services must be managed so as to achieve the main objects of this Act, particularly by -

(a) ensuring that public safety is the paramount consideration in decision-making about the management of detainees; and

(b) ensuring respect for the humanity of everyone involved in correctional services, including detainees**, corrections officers and other people who work at or visit correctional centres; and**

(c) ensuring behaviour by corrections officers that recognises and respects the inherent dignity of detainees as individuals; and

(d) ensuring that harm suffered by victims, and their need for protection, are considered appropriately in decision-making about the management of detainees.

20. The Director-General may make corrections policies and operating procedures, consistent with the Corrections Act, to facilitate the effective and efficient management of correctional services: s 14 of the Corrections Act.

21. Relevant to the Food Claim, ss 40(1) and (2) of the Corrections Act is in the following terms (emphasis added):

(a) sufficient nutritional food and drink are provided for detainees to avoid hunger and poor nourishment; and

(b) meals are provided for detainees at times consistent with the cultural norms of Australia; and

(2) The director-general must also ensure, as far as practicable, that allowance is made for the religious, spiritual and cultural needs of detainees in relation to the provision of food and drink.

22. The remainder of that section deals with medically prescribed diets, the exclusion of food and drink from disciplinary measures later in the Corrections Act (because it is an entitlement, not a privilege), and specific matters that may be covered in corrections policies and operating procedures, such as nutritional standards.

Applicable principles - whether judicial review principles influence the Act

23. It is first necessary to consider the general approach for which the Director-General contends, before considering the specific rights in question for the Food Claim and the Printing Claim.

24. It has long been established that on judicial review, it is generally not for the Courts to interfere with the management and control of prisoners: K v Commissioner for Corrective Services [2017] NSWSC 311 at [31] per Latham J, citing Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [39]; Clark v Commissioner for Corrective Services [2016] NSWCA 186 (Clark) at [86] per Emmett AJA; Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337 at [35].

25. Broadly to similar effect is Masoud v R; Viet Dung Tran v R [2000] FCA 435, a case on which the Director-General relied, where Miles CJ stated, at [14], that the laws of the Territory concerning prisoners in custody, and the lawful functioning of the institutions charged with the responsibility of implementing those laws, deserve respect.

26. The Director-General also relied upon Eastman v Besanko [2009] ACTCA 23 (Eastman v Besanko) at [5], to the effect that judicial intervention in the treatment of prisoners under sentence in a prison is a serious step, with the potential for security and safety issues to arise. It is not an area in which courts have any real expertise or experience.

27. These authorities are all consistent with earlier authorities stating that it is important that the responsibility for regulating the procedures of a gaol is not transferred to the courts administering justice: Horwitz v Connor [1908] HCA 33; (1908) 6 CLR 38 cited with approval in Flynn v The King [1949] HCA 38; (1949) 79 CLR 1 (Flynn) at 8.

28. The Director-General submitted that the power to grant relief under s 40C(4) of the Act must be read in the context of those authorities, which limit the intervention of courts in the daily management of correctional facilities. However, such broad notions of restraint derive from applications seeking judicial review, including review under the Administrative Decisions (Judicial Review) Act 1989 (ACT).

29. The principles and their continuing application have been applied in this jurisdiction, including in relation to the same parties in an earlier decision: Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60 (Islam No. 2) at [38] and [39] per Walsmley AJ. His Honour was there considering the inherent supervisory jurisdiction of the Court, and the power to ensure that the administration of justice is not unduly impeded by the way a prisoner is being detained.

30. The claims that are presently before the Court do not seek to invoke the Court's supervisory jurisdiction. Here, each claim is brought in the context of a statutory regime that includes a specific human rights statute, and the Corrections Act, which expressly implements the rights articulated in the Act, as can be seen from the extracted sections above. The Act, through ss 40B and 40C, creates stand-alone rights independent of judicial review, although some of the available remedies will be the same. The rights under the Act are not read subject to, or in the context of, principles applying to the Court's power on judicial review. Ordinary principles of statutory construction apply.

31. Thus, in Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70, Burns J acknowledged the statement in Eastman v Besanko at [5] as to the Court's hesitation to interfere with the administration of the AMC, before stating at [35] (emphasis added):

This Court, nevertheless, has powers under the [Act] to provide relief where public authorities act contrary to the [Act], and it should not hesitate to do so in an appropriate case. ...

32. In any event, in Clark, Basten JA referred to Flynn and went on to state at [7]-[11] (references omitted and emphasis added):

Over the last 40 years, social and judicial attitudes have changed. Both administrative efficiency and transparency have resulted in the regulation of prisons being defined in far greater detail, as may readily be seen by comparing the length and content of the Prisons Act 1952 (NSW) and the regulations thereunder, with the Crimes (Administration of Sentences) Act 1999 (NSW) ("Administration Act") and the regulations under that Act.

Nor was it only at the level of detail that the regulation of prisons and prisoners changed. The Administration Act reflects the principle that the punishment was being sent to gaol; offenders were not sent to gaol to be punished. Thus, s 2A of the Administration Act, setting out the objects of the Act, state the first object as being "to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment". Although s 2A(3) provides that nothing in the section "can be taken into account in any civil proceedings", it can properly be used to identify the underlying philosophy of the legislation.

The principled basis underlying the modern approach to judicial review of decisions affecting prisoners was discussed by Lord Reed speaking for the UK Supreme Court in Osborn v The Parole Board. (Osborn concerned the circumstances in which the common law accorded a prisoner a right to an oral hearing in relation to key decisions regarding release.)

Further, there has been a notable expansion in the scope of judicial review of administrative action. Limits on review are now defined by reference to the scope of the discretion given to the decision-maker, rather than by declaring particular areas of administrative action to be beyond judicial control. The focus is on the scope and exercise of the statutory power, rather than identifying the legal "right" which has allegedly been infringed. There is also an expectation that decisions which may infringe on rights or interests be justifiable.

Bearing those factors in mind, the availability of judicial review of the conditions of custody must flow from a careful analysis of the statutory and regulatory scheme to which prisoners are subject.

33. I respectfully agree with the point being made in the above passage, namely that the law concerning prison regulation has developed significantly and that careful attention must be paid to the statutory regime in question.

34. Moreover, in the Territory, a careful analysis of the statutory regime means that the Court must focus upon both the statutory rights in the Act and the Corrections Act, in assessing whether the Act has been contravened. There is nothing in the statutory regime which suggests a general principle that a Court's intervention in cases of human rights in prisons should be limited. As discussed below (at [59]), the opposite appears true, in that the particular vulnerability of prisoners is recognised in the Act as being specifically worthy of protection. The prison context is of course relevant, but it features as part of the factual matrix by which the conduct is assessed under the Act.

Statutory causes of action founded upon s 40B of the Act

35. It is helpful to start with some general principles before giving specific attention to the individual rights giving rise to the plaintiff's complaints.

36. The rights set out in the Act are "primarily" drawn from the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 28 January 1993) (ICCPR): Explanatory Statement to the Human Rights Bill 2003 (ACT) at 3; Re application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 at [18] per Penfold J; and most recently, Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 at [446] and [449] per Refshauge J. (Although that judgment is currently the subject of an appeal, the grounds do not touch upon this aspect of the context to the Act: see Lewis v Australian Capital Territory [2018] ACTCA 49.)

37. It is trite that the protection of human rights crosses boundaries, and other jurisdictions have sought to implement the ICCPR in various ways, including the state of Victoria and overseas jurisdictions such as Canada, South Africa and New Zealand. As will be seen from the consideration below, the task of interpreting and applying the Act may be assisted by reference to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision, with due caution exercised for the particular statutory and constitutional framework in the jurisdiction and any variations in the words used of the sections under consideration: Momcilovic v R [2011] HCA 34, 245 CLR 1 (Momcilovic) at [18] per French CJ; at [146] per Gummow J.

38. The human rights protections under the Act are engaged when legislation is enacted to limit such right, with 'limit' being understood simply as a burden on the right, without reference to whether the burden is reasonable or proportionate: see, by analogy, Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 (Certain Children v Minister for Families), at [143] (and the authority there-cited), a Victorian case discussed further below at [59] of these reasons.

39. In interpreting each right, the Court construes it in "the broadest possible way": Certain Children v Minister for Families at [143] and the authorities there-cited.

40. Where a conclusion is reached that the legislation in question does limit one or more human rights, it is then necessary to determine whether any such limitation is reasonable: s 28 of the Act.

41. Section 28 acknowledges that the human rights under the Act are not absolute or always completely consistent with each other. It produces a conclusion that where a law limits a human right under the Act, the Act permits the right to be reduced in a case where the limitation is justified or reasonable. In this way, following such adjustment, the human right under the Act is rendered compatible with the limit, and therefore lawful: Momcilovic at [572] per Crennan and Kiefel JJ; at [684] per Bell J.

42. If the limitation is not reasonable, then the conduct in question will be incompatible with the relevant human right under the Act. Various considerations for reasonableness under s 28 of the Act invoke what is known as the proportionality test: Momcilovic at [22] and [34] per French CJ, [432] per Heydon J, [555]-[557] per Crennan and Kiefel JJ. The High Court was there considering s 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter), which is in substantially the same terms as s 28 of the Act.

43. The Victorian authorities such as Certain Children v Minister for Families at [208], and in Rich v Howe [2017] VSC 483 at [161], have assessed proportionality by reference to three important components, set out in R v Oakes [1986] 1 SCR 103, 43, which was dealing with a similar provision in the Canadian Charter of Rights and Freedoms (1982) (Canadian Charter). Those three components are broadly summarised as follows:

(a) First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.

(b) Second, the means should impair the right or freedom as little as is necessary to achieve the objective.

(c) Third, there must be a proportionality between the effects of the measures which are responsible for limiting the right or freedom under the Act, and the objective identified.

44. However, in Momcilovic at [552], Crennan and Kiefel JJ noted the different terminology between the Victorian Charter and the Canadian Charter, in that it did not speak of a requirement that the right of freedom be impaired "as little as possible". Similarly, s 28 of the Act does not include such language. Their Honours said (at [553]) of the provisions of s 7(2) of the Victorian Charter:

...taken together, [they] may comprise another test, or at least the framework for a test, which has regard to the nature (and inferentially the importance) of the right affected on the one hand, and [on the other hand] the importance and purpose of the limitation and the extent to which it operates as a limitation of the right.

45. For the present claims under consideration, it is sufficient to appreciate that proportionality is part of the assessment of reasonableness under s 28 of the Act.

Section 14 of the Act: the right to food consistent with respecting a prisoner's religious beliefs.

46. Religious belief is intensely personal and can easily vary from one individual to another: R v AM [2010] ACTSC 149; 5 ACTLR 70 at [42] per Refshauge J, citing R (Williamson and Ors) v The Secretary of State for Education and Employment (Williamson) [2005] UKHL 15; (2005) 2 AC 246 at [22].

47. It is unnecessary to discuss principles relevant to that question further, as the Director-General did not dispute that Mr Islam was a Muslim adhering to the religion of Islam, nor that his refusal to eat a roll containing processed chicken was based on anything other than his religious convictions.

48. Whether the statutory obligation under s 14 of the Act and s 40(2) of the Corrections Act has been fulfilled is a question of fact and degree, to be assessed in all the circumstances: Eastman v Chief Executive, Department of Justice and Community Safety [2011] ACTSC 33 at [71]; Islam No. 1 at [86]. Islam No. 1 involved the same parties but dealt with a different complaint about an asserted lack of an employment opportunity.

49. In Weaven v Secretary to the Department of Justice [2012] VSC 582 (Weaven), a prisoner complained (among other things) that he had been denied the provision of food which was yeast free, a dietary requirement necessary for medical reasons. The case concerned the Victorian Charter and s 47 of the Corrections Act 1986 (Vic), but it is of assistance in this jurisdiction because that statutory regime produces the same legislative result to that in the Territory, in that prisoners are entitled to food that is necessary (among other things) for medical reasons or on account of their religious beliefs.

50. The plaintiff in Weaven believed that coupled with the failure to provide him with appropriate food, there had been a lack of bona fides on the part of prison staff, and in particular, the kitchen and unit staff with whom the plaintiff dealt. The plaintiff believed they were dismissive of his needs.

51. Macauley J accepted (at [4]-[7]) the concession of the Secretary (being the defendant in the case) that s 47 of the Corrections Act 1986 in Victoria imposed a duty upon those responsible for administering the prison to provide for prisoners to enjoy the rights they possessed under that statute to have special dietary food, either for medical reasons or on account of religious beliefs.

52. However, by the time the proceedings were heard, an effective system had been implemented for the delivery of food according to the prisoner's dietary requirements: Weaven at [24]. His Honour well understood that the improvement in the prisoner's situation appeared to have coincided with the instigation of proceedings (at [32]), but as there was in place a system that was currently meeting the prisoner's needs, his Honour did not make any order in the nature of mandamus. His Honour expressly declined (at [38]) to make findings on the past conduct.

53. In the course of his Honour's reasons, Macauley J accepted (at [33]) that in any system responsible for delivering high volumes of food for many residents, mistakes can occur, and ultimately found that the Secretary was not currently refusing to discharge her duty to the prisoner.

54. In Islam No. 1 at [91], Mossop M stated that the overall management of the prison involves a complex set of considerations and must be considered in the light of the many other demands on the staff and resources of the AMC necessary to keep it running efficiently.

55. Drawing from these cases, it can be seen that not every failure or inadequacy will result in a finding that a public authority has contravened a person's human rights. A number of factors will feed into the evaluative judgment of the Court. The circumstances of the case will dictate what those factors are.

Section 19: the right to be treated with humanity and respect for the inherent dignity of the person

56. Section 19 creates a positive duty on public authorities concerning those who are in prison: see Taunoa v Attorney-General (2004) 7 HRNZ 379 (Taunoa) at [273] per Ronald Young J. His Honour was there considering s 23(5) of the New Zealand Bill of Rights Act 1900 (NZ). It is in almost identical terms to s 19(1) of the Act. It provides:

Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

57. The duty is to treat prisoners, among other things, with humanity. That is, treatment as befits a human being with compassion: Taunoa at [275]. That explanation is consistent with the ordinary meaning of humanity and applies equally to s 19(1) of the Act.

58. Section 22(1) of the Victorian Charter is also in almost identical terms to s 19(1):

All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

59. Speaking of that provision in Certain Children v Minister for Families, Garde J stated at [172]-[173]:

The dignity right in s 22(1) of the Charter recognises the vulnerability of all persons deprived of their liberty: Castles v Secretary to the Department of Justice ('Castles') (2010) 28 VR 141, [93]. It also acknowledges the important principle when assessing whether there has been a limitation of this right, namely that prisoners should not be subject to hardship or restraint other than the hardship or restraint that results from the deprivation of liberty: Castles at [108].

The content of s 22(1) of the Charter is also informed by Article 10 of the ICCPR: De Bruyn [2016] VSC 111, [177]-[178].

60. His Honour also referred to General Comment No 21 on Article 10, UN Human Rights Committee, (Humane Treatment of Persons Deprived of Their Liberty) 44th sess. UN Doc HRI/GEN/1/Rev.1 (10 April 1992) [4]. It states:

Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule.

61. Garde J then set out in part (at [174]) the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), GA Res 70/175, UN GAOR, 70th sess, 80th pln mtg, Agenda Item 106, UN Doc A/RES/70/175 (17 December 2015) annex, which include:

Discipline and order shall be maintained with no more restriction than is necessary to ensure safe custody, the secure operation of the prison and a well-ordered community life.

62. Returning to the decision of Castles, Garde J stated at [175]:

In Castles ..., Emerton J stated that 'the starting point should be that prisoners not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty': at [108]. Her Honour noted that a necessary consequence of the deprivation of liberty was that '[r]ights and freedoms which are enjoyed by other citizens will necessarily be "curtailed", "attenuated" and "qualified" merely by reason of the deprivation of liberty.: at [111].

63. Similarly, in Eastman v CEO, Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 at [86], Refshauge J referred at to the positive obligation on the State to "...ensure that a person is detained in conditions which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and wellbeing are adequately secured" (citing Enea v Italy [2009] ECHR 74912/01 at [57]).

64. These authorities indicate that, accepting that the prison context will necessarily curtail a prisoner's human rights, a public authority must ensure that additional hardship or separate impingement on such rights does not arise that is unrelated to the deprivation of liberty.

65. Explaining that principle in the context of food given to prisoners, there are limits arising from their deprivation of liberty. For example, a home-delivered pizza is unlikely to be an option for a prisoner at the AMC. However, the choice to be vegetarian for religious reasons is an option that is not limited by the fact that the prisoner has been deprived of liberty (as recognised in s 40(2) of the Corrections Act). As such, a prisoner should be able to access vegetarian food on a daily basis.

66. Having said that, the impugned conduct must have some severity for it to amount to a violation of a right to be treated with humanity and inherent dignity: Haigh v Ryan [2018] VSC 474 (Haigh) per Ginnane J at [86]. In Haigh, the Supreme Court of Victoria had to decide whether the withholding of four tarot cards from being kept in a prisoner's cell engaged or curtailed a prisoner's rights to be treated with humanity. Ginnane J was not persuaded that the equivalent right in the Charter was engaged (although his Honour had earlier found that the decision to withhold the cards was unlawful because there was no evidence that the decision-maker had given any consideration to the prisoner's human rights).

Section 27A: the right to access further education without discrimination

67. As submitted by the Director-General, the right to access education has been recognised as extending to tertiary education in the context of the European Convention on Human Rights: R. (on the application of Douglas) v North Tyneside MBC [2004] EWCA Civ 1847; [2004] 1 All ER 709.

68. The Director-General appeared to then submit that while the words 'further education' could encompass tertiary education, they might not encompass higher level tertiary education, such as the completion of a masters or PhD program. If that was the submission, I see no reason to construe the term in a narrow fashion. On the contrary, consistent with Certain Children v Minister for Families at [143], the term should be construed broadly.

69. International charters of human rights in Canada, New Zealand and South Africa, and the Victorian Charter, do not include a separate right concerning access to further education (although freedom from discrimination generally relevantly covers the right confirmed in s 27A of the Act). The principles in the foregoing discussion logically have the same application to s 27A of the Act. In order for any limits to be reasonable or justified and thus compatible, any limit on the right must be proportionate, taking account of the considerations in s 28 of the Act. This is further reinforced by the express limit contained in s 27A(3), which confines the right to freedom from discrimination in accessing further education.

70. If a contravention of the Act is established, s 40C of the Act provides that remedies are discretionary, in that they may be crafted as the Court considers appropriate, save for awarding damages.

71. As the Act is directed to protecting human rights, where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end: Anufrijeva v Southwark London Borough Council: [2003] EWCA Civ 1406; [2004] QB 1124 at [52]- [53]; R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673 at [93]. That principle has been applied in the United Kingdom even though damages or compensation are available remedies for a contravention of human rights in that jurisdiction.

72. The finding itself is often an important part of the remedy, by way of vindication, with that word used in the sense of defending against encroachment or interference: see the discussion in Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 (Taunoa SC) at [253] per Blanchard J.

73. The determination of appropriate relief requires a balancing process guided by four objectives: first, addressing the wrong occasioned by the contravention of the Act; second, deterring future violations; third, making an order that can be complied with; and fourth, ensuring fairness to all those who might be affected by the relief: Taunoa SC at [254], citing Hoffman v South African Airways [2000] ZACC 17 2001 (1) SA 1 at [45] per Ngcobo J.

74. In Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593; 48 VR 119, McDonald J considered s 47(1)(c) of the Corrections Act 1986 (Vic), which provides that every prisoner has:

The right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner's religious beliefs or because the prisoner is a vegetarian.

75. The terms echo s 14 of the Act and s 40(2) of the Corrections Act. McDonald J stated at [9]:

...The existence of a right under s 47(1)(c) could underpin an order requiring the defendants to provide food in accordance with Ms Moran's special dietary requirements.

76. This is consistent with the principle that when granting a remedy in the nature of mandamus the Court has the power to compel the performance of a statutory duty, but not to direct how it is to be discharged: Cuming Campbell Investments Pty Ltd v Collector of Imposts (Victoria) (1938) 60 CLR 741, 749 per Latham CJ. That principle is relevant to the relief sought by Mr Islam if he establishes a contravention of ss 14, 19 or 27A of the Act.

77. Three witnesses gave evidence in the proceedings: Mr Michael Wilding, Manager of Food Services at the AMC since May 2008, Mr Islam, and Mr Christopher Miles, a fellow detainee at the AMC.

78. Mr Wilding's affidavit evidence dealt with the catering system at the AMC, including putting the Corrections Management (Provision of Meals) Policy 2011 (Meals Policy) into evidence. The Meals Policy includes the following:

Principles

Prisoners are entitled to be provided with sufficient food and drink to avoid hunger and poor nourishment. These meals will be served at times consistent with the cultural norms of Australia.

Prisoners may apply to be provided with a special diet (including for religious, cultural, and spiritual reasons).

Requests for special diets must be made in writing to the Superintendent through the Deputy Superintendent.

...

Special diets

Vegetarian...

Religious

Prisoners who wish to receive a diet consistent with a particular religion (for example Halal or Kosher foods) may apply for this by submitting a Prisoner Request Form to the Superintendent through the Deputy Superintendent. The Deputy Superintendent may seek advice from the Chaplain or any other person to assist them in making a recommendation to the Superintendent.

The system in place for providing food to detainees at the AMC

79. Mr Wilding's evidence was that the detainees (including sentenced prisoners and those remanded in custody awaiting trial) are provided with a breakfast, lunch and dinner meal. The lunch and dinner meals are prepared in accordance with a two-week cyclic menu, which changes approximately every three months. The breakfast pack consists of cereal, bread, condiments, fruit, and tea or coffee and is delivered in the evening for the next morning.

80. The lunchtime meal is a sandwich roll. The roll will have a different filling each day. Mr Wilding deposed to the provision of a vegetarian sandwich to those detainees who, for religious reasons, do not eat ham or pork products. Similarly, where the lunch menu provides for a sandwich containing chicken or beef, a vegetarian sandwich is provided to those detainees who, for religious reasons, do not eat chicken or beef products.

81. For the dinnertime meal, detainees are able to choose one type of meal from two options provided in the two-week cyclic menu. The dinner menu always provides one meat option and one vegetarian option. The detainees must fill out the meal order form in advance. An extra number of each choice of dinner is prepared daily in case additional meals are required, for example if there have been new admissions in the afternoon.

82. There are also additional meals prepared to meet any registered special diets.

83. If a detainee does not submit or only partially completes a meal order form, the default meal selection provided to the detainee is the meat option, unless the detainee has a pre-approved and registered special diet.

84. The lunches and dinner meals are distributed to detainees in each cell block by "dixies", described by Mr Wilding as detainees who are employed to provide assistance to the catering unit at the AMC. The term appears to derive from military slang, when cooks in the army referred to doing the dishes as 'dixie bashing'. They are supervised by a corrections officer.

85. In addition to the provision of three meals, detainees are able to purchase a range of food items from weekly grocery buy-ups. From the buy-up list in evidence, these items include 2-minute noodles, rice, muesli bars, tinned vegetables, crisps, chocolate and biscuits. Separate to Mr Wilding's evidence, there was an account in evidence as to money held in trust for Mr Islam, which was said to be relevant to Mr Islam's ability to purchase food from such a list.

86. Where a detainee requires a special diet, Mr Wilding's evidence was that they had to fill out a "Special Diet Request" form and email the form to the AMC kitchen. The AMC kitchen will then provide the form to the Corrections Health unit of the AMC for review, to ensure that the change does not affect the adequacy of the detainee's nutrition. If Corrections Health approve that request, it will be actioned by the diet change being entered onto the particular detainee's file, and entered into the catering department's "Special Diets Register".

87. The purpose of such a register is to ensure that when meals are being prepared for detainees in a specific accommodation area, the staff can easily calculate how many regular menu items are required and how "special diet'" items need to be provided to a particular area in the AMC.

88. Mr Wilding deposes to the prison numbers as at 14 December 2017 as being 350 detainees and of these, 168 had registered as having special diets.

The AMC Catering Department is unable to accommodate special diet requests that are not pre-approved and entered on the special diets register because last minute or on-the-spot variations to the considerable number of meals and special diets that are prepared by the kitchen would not be operationally viable.

90. Of the special diet requests, as at 14 December 2017, 18 detainees at the AMC had indicated that they are Muslim and have a special diet entered in the Register. The only special diet request registered for these detainees is that they are to receive "no pork products". Aside from pork products, all other meat that is served by the AMC kitchen is halal certified, meaning certified as being prepared in accordance with the Islamic dietary laws and that certification has been provided by the Australian Federation of Islamic Council Inc. Mr Wilding also gave evidence of the suppliers of meat to the AMC, and provided the certifications from those suppliers. The effect of the evidence was that all chicken products, including chicken luncheon meet that is used on the lunch rolls, is halal certified.

91. If a detainee receives a meal that does not comply with his or her religious dietary requirements (registered in the manner described above), the detainee is able to raise the issue with a corrections officer or with Corrections Health and a replacement meal may be obtained from the AMC kitchen.

92. There are two other means of detainees dealing with issues in the AMC. One is through raising an issue with the "Detainee Delegate". This is someone who is paid to act as a liaison between detainees and corrections officers. The detainee can ask a Detainee Delegate to speak to a corrections officer to resolve an issue.

93. The second means is through submitting an internal request form (informally known as a "bluey") if a detainee wishes to complain to a Senior Corrections Officer about an issue.

94. Mr Wilding provided a copy of an extract of the electronic file for Mr Islam. It records:

Assessment Date: 2 Sep 2014

Assessment Type: Special Diet

Assessment result: Yes

Comments: halal - no pork + no seafood

95. Mr Wilding was unable to provide direct evidence of what occurred on 2 July 2017 as he was not working at the AMC catering department that day. At best, he states there was no record of a phone call to the AMC kitchen on that day or about a complaint made by Mr Islam.

96. He does not recall receiving previous complaints made by Mr Islam in relation to the food he has received at the AMC and confirmed that as at December 2017, Mr Islam had not filled out a request form to change his diet.

97. Mr Islam gave evidence under oath as to what he had experienced, while incarcerated. His experience of the food ordering system was that it was inadequate. He has observed continual complaints made by detainees about the system. His estimation was that over the years he had witnessed more than 100 complaints. However, as the majority of the complaints are verbal, there is no record.

98. He says he understands there is a bureaucracy and there are limitations on what the AMC can provide, but he has, at the time of evidence, been incarcerated for eight and a half years and he had no knowledge of any "Special Diet Request" form prior to commencing these proceedings and reading the affidavit evidence of Mr Wilding. Up until the point where he commenced proceedings, he was regularly experiencing problems with not receiving appropriate meal choices. Since he has commenced these proceedings, he has not experienced a problem, which he says is why he has not yet attended to filling out the form, now that he has been made aware of it.

99. Mr Islam stated that he had just completed the requirements for a PhD in Islamic studies at Charles Sturt University. His personal beliefs as to what is appropriate have been partly informed by those studies and in particular, he considers himself well placed to have an understanding of what is halal (permissible) and haram (forbidden) food. His belief system means that he does not eat processed chicken and processed meats such as devon. He has not been eating these types of food for so long that a certificate from a supplier makes no difference to him.

100. Mr Islam tendered evidence of the present meal order form. He says there is no place on that form to request a special lunch roll for lunch. Admittedly, this form was for choosing dinner options, but Mr Islam said that he had seen prisoners writing their dietary requests for lunch on that form, and he followed that practice.

101. Mr Islam did not see why a small amendment could not be made to the current order form at the bottom to simply notify those in custody at the AMC of the system that is in place. He suggested that the current form could simply be amended to include the words: "If detainees have special diet requirements, please ask for a special diet request form from the corrections officer".

102. Mr Islam gave evidence as to what he normally does if the kitchen does not allocate the appropriate food to him. He takes the lunch roll to an officer and the officer will swap over the lunch. He said that is generally not an issue.

103. On 3 July 2017, when Mr Islam was given the roll containing processed chicken, he asked a Corrections Officer to swap it. She agreed, but by 3pm Mr Islam still had not received the substitute lunch roll. He followed it up with the same Corrections Officer, who said she would look into the issue. The next day, she told Mr Islam that there was a problem and that the kitchen had refused to swap the roll. She attempted to hand back the roll from the day before.

Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (262 paragraphs)

Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 (23 November 2018)

Parties

Legislation Cited (7)

Cases Cited (4)