McKechnie v Commissioner of Corrections

2 By originating motion dated 8 June 2023 and filed 19 July 2023, the plaintiff, Mr McKechnie, sought to challenge a decision described as follows:

Sentence Management (Corrections Victoria) made the decision to unnecessarily increase the plaintiff's security rating to what it is 8 June 2023. The precise date of the decision is not know[n] to the plaintiff.

3 The grounds relied upon were unparticularised, as follows:

The decision was made by the defendant failing to properly exercise its power by both taking irrelevant considerations into account in failing to take relevant considerations into account.

4 On 28 August 2023, the defendant (the Commissioner) filed a summons dated 25 August 2023 seeking orders pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) that the entirety of the plaintiff's claim indorsed on the originating motion filed 19 July 2023 be struck out. On 6 September 2023, the Court made programming orders in preparation for the hearing of the Commissioner's summons.

5 On 24 October 2023, Mr McKechnie filed a summons dated 10 October 2023 seeking orders that he be granted leave to amend his originating motion and that the defendant be required to provide reasons for the impugned decision the subject of his application for judicial review. On 1 November 2023, the Court made programming orders in preparation for the hearing of this summons.

6 I heard argument on both summonses on 6 December 2023. The Commissioner pointed out that a security rating forms part of a prisoner classification, and that prisoner classifications are not determined by the Commissioner. They are determined by the Secretary or by sentence management panels established under the Corrections Regulations 2019 (Regulations) from time to time. The Commissioner provided copies of relevant provisions of the Regulations to the plaintiff and to the Court.

7 I formed the view that Mr McKechnie's originating motion was against the wrong defendant. It also was devoid of any properly identified, particularised ground of review. The lack of any properly identified ground of review was not surprising, because Mr McKechnie did not know why any decision to increase his security rating had been made, or even precisely when it might have been made. Nevertheless, his originating motion was liable to be struck out, as the Commissioner submitted.

8 Although, by his summons, Mr McKechnie was applying for leave to amend his originating motion, he did not provide a copy of any particular proposed amended originating motion for the consideration of the Court. Again, this was not surprising, given the plaintiff's ignorance about the decision he suspected had been made to increase his security rating.

9 I decided to strike out the current originating motion but to allow the plaintiff an opportunity to replead his case, and to do so against the proper defendant or defendants. Rather than giving him open-ended leave to replead, I made orders for a process by which he would prepare a proposed amended originating motion and serve it on any proposed defendants, and in the event of a dispute about that document or joinder, that issue would come back to court to be determined by a judicial officer. I did not make any order compelling the provision of reasons by the current defendant, the Commissioner.

10 No leave has yet been granted for the plaintiff to rely on any particular amended originating motion, or to join any new defendants.

11 On 12 January 2024, the plaintiff sent correspondence to the Court dated 11 January 2024 attaching two documents. The first was a purported or proposed 'amended originating motion for judicial review' naming the 'Secretary for the Department of Justice' and the 'Sentence Management Panel' as defendants. This document identified the decision under review as follows.

8 June 2023 the plaintiff had a specific security rating. The impugned decision is a decision that defendant made to change the plaintiff security rating to this rating.

Note, that this means that impugned decision was made prior to or on 8 June 2023 and occurred at the date, working backwards from 8 June 2023, when the plaintiff's security rating is first found to be lower [than] what it is understood by the defendant to have been 8 June 2023.

12 The document sets out only the following as the grounds relied upon:

The decision was made by the defendant failing to properly exercise its power by both taking relevant considerations into account and failing to take relevant considerations into account.

13 The second document is a proposed, unsealed summons dated 11 January 2024, on which the title of this proceeding has purportedly been amended to name the Secretary and the Sentence Management Panel as defendants. The orders sought in the unsealed summons are:

1. the defendants provide to the plaintiff the reasons for the defendants decision (the impugned decision) as described in the amended originating motion document date 11 January 2024.

2. the plaintiff be granted leave to amend the amended originating motion Document date 12 January 2024 after the reasons have been provided as per item 1.

14 On 13 March 2024, there was a directions hearing before Judicial Registrar McCann addressing outstanding summonses and procedural issues in this proceeding. In the recitals of the order subsequently made by Judicial Registrar McCann, she noted that the plaintiff had filed an amended originating motion and summons seeking reasons for the decision on 11 January 2024, referring to the latter as the 'reasons summons'. The recitals went on to relate the following contextual matters of relevance to my task:

At the directions hearing on 13 March 2024 counsel for the defendant informed the court that letters from the VGSO to the plaintiff dated 9 January 2024 and 24 January 2024 contained their substantive response to the request for reasons, and that these were reproduced in a letter dated 1 March 2024. The plaintiff informed the court that he had not received these letters. Counsel for the defendant indicated that these letter could be resupplied to the plaintiff.

It was the position of both parties that the reasons summons should be resolved prior to progressing the filing of an amended originating motion.

15 Judicial Registrar McCann made orders facilitating the hearing and determination of the reasons summons and the filing of a proposed further amended originating motion. Both the reasons summons and another summons were listed for hearing before her on 24 April 2024.

16 In the event, it was I who conducted the hearing on 24 April 2024. I partially heard the related summons on that day, made directions for further submissions, and later determined it.[1]

17 Also during the hearing on 24 April 2024, I partially heard argument on the reasons summons, including submissions from the Commissioner drawing attention to a submission filed on 23 April 2024 and an affidavit, neither of which had reached Mr McKechnie by the time the hearing commenced. The affidavit relied upon by the Commissioner reached Mr McKechnie at the prison by way of service during the hearing, and Mr McKechnie made no objection to my receiving it into evidence. It contained copies of the letters dated 9 January, 24 January and 1 March 2024, identified by Judicial Registrar McCann in the extract from the recitals of her order extracted above. I extract relevant contents from those letters in considering the reasons summons, below.

18 At the hearing on 24 April 2024, I proposed directions for further written submissions on the reasons summons. The parties agreed that I should determine the reasons summons on the papers after having received the further submissions. After the hearing, Mr McKechnie provided an unsworn affidavit dated 22 May 2024 and written submissions dated 22 May 2024 (both filed 27 May 2024), and the Commissioner filed and served submissions in reply on 3 June 2024. I will receive the contents of Mr McKechnie's unsworn affidavit as if verified.

19 For completeness, I note that the Court file in this proceeding includes copies of two letters from Mr McKechnie both to the Sentence Management Panel and to the Secretary, dated 8 June 2024 and 6 June 2024 respectively. The copies are stamped as filed on 18 June 2024. They are purportedly requests for reasons under the Administrative Law Act 1978 (Administrative Law Act) in relation to each of:

(a) a change in Mr McKechnie's parole eligibility date; and

(b) the decision on 31 January 2023 to increase Mr McKechnie's security rating from B* to A2*.

20 These copies were received outside the timetable for submissions I directed on 24 April 2024 and are not considered in these reasons.

21 In these reasons, I am only considering the plaintiff's application, set out in his unsealed summons dated 11 January 2024, paragraph 1, to be provided with the reasons for the impugned decision referred to in Mr McKechnie's proposed amended originating motion dated 11 January 2024. I am not addressing the question of whether leave should be granted for Mr McKechnie to rely on a further amended originating motion, or what form any such document might take. That will be dealt with as a separate matter once Mr McKechnie has had an opportunity to consider these reasons.

(1) A prisoner's classification must include decisions about the prisoner's security rating, placement and sentence plan.

(2) A prisoner's classification may include -

(a) the reasons for decisions referred to in subregulation (1); ...

...

23 Regulation 27(2)(a) provides that it is the function of a sentence management panel to determine the classifications of prisoners.

30 Determination of classification

(1) In determining the classification of a prisoner, a sentence management panel or the Secretary -

(a) must consider the risk the prisoner poses to themselves, the security of the prison, the community or to any other person; and

(b) may consider any one or more of the following matters -

(i) the nature of the offence in respect of which the prisoner has been charged or convicted;

(ii) the risk of the prisoner escaping, or attempting to escape, from custody;

(iii) the risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community;

(iv) the risk the prisoner poses to the management, good order or security of the prison;

(v) the risk the prisoner poses to the prisoner's welfare and the welfare of any other person;

(vi) the length of the prisoner's sentence or, if the prisoner is awaiting trial, the maximum sentence applicable to the offences in respect of which the prisoner has been charged;

(vii) if the prisoner is under the age of 18, the prisoner's age, the best interests of the prisoner and the vulnerability of the prisoner (if reasonably practicable), having regard to -

(A) the management, good order or security of the prison; or

(B) the safe custody or welfare of the prisoner; or

(C) the safety or welfare of any person;

(viii) any other matter that is relevant to the management, good order or security of the prison and the safe custody and welfare of the prisoner.

(2) In varying the classification of a prisoner, a sentence management panel, a case management review committee or the Secretary -

(a) must consider the risk the prisoner poses to themselves, the security of the prison, the community or to any other person; and

(b) may have regard to any one or more of the matters referred to in subregulation (1)(b)(i) to (vii).

25 The classification system provided for in pt 3 div 2 of the Regulations is referred to in s 47(1)(l) of the Corrections Act 1986 (Corrections Act), which provides:

Every prisoner has the following rights ... (l) the right to be classified under a classification system established in accordance with the regulations as soon as possible after being sentenced and to have that classification reviewed annually.

26 On 9 January 2024, the solicitors for the Commissioner wrote to Mr McKechnie in relation to the interlocutory hearing that had taken place on 6 December 2023 and further explaining the submissions the Commissioner had made by reference to the Regulations on that occasion and the remarks I had made on that occasion. The letter stated that the common law does not impose a duty to provide reasons for decisions and that there is no statutory requirement in the Corrections Act or Regulations to provide reasons.[2] The letter also stated that the solicitors were not aware of any valid request for reasons being made under the Administrative Law Act s 8, and stated that they did not presently consider that the Commissioner or any other representatives of Corrections Victoria are required to provide reasons in accordance with that Act.

6. Nevertheless, in relation to your current security classification and placement, we are instructed to provide you the following information:

6.1 You have been classified as an "A2*" security rated prisoner since January 2023. This means that, among other things, you are classified as a maximum security rated prisoner.

6.2 You are also classified as a protection prisoner due to the nature of your offending. This limits the placement options available to you within the Victorian prison system.

6.3 All prisoners attend (at least) annual reviews with a Sentence Management Panel members for the purpose of reviewing the prisoner's placement and classifications. More frequent meetings are convened by members of Case Management Review Committees to assist in informing the Panel's decision-making.

6.4 In 2023, your annual review with members of the Sentence Management Panel was conducted on 29 March 2023. As on previous occasions, you refused to attend. The Panel members determined that your security classification should remain as "A2*" and that you should remain in the Sirius East Protection Unit of Port Phillip Prison. Your behaviour in the prison system in the preceding 12-month period informed that decision.

6.5 A Sentence Management Panel most recently convened on 8 August 2023 to consider your placement and classifications. Again, you refused to see the Panel. The Panel members determined that your security classification should remain as "A2*" and that you should remain placed in the Sirius East Protection Unit at the Prison.

6.6 Your classifications will continue to be reviewed in accordance with the Corrections Act and the Corrections Regulations. You will continue to be invited to attend meetings with members of Sentence Management Panels and Case Management Review Committees convened from time-to-time.

You can also request to meet with members of the Sentence Management Division for the purpose of discussing your classifications and placement.

28 The letter invited engagement in the event Mr McKechnie had any outstanding queries about the letter, and otherwise noted that if further information was required about decisions concerning his security classifications, Mr McKechnie ought to consider making a request under the Freedom of Information Act 1982.

29 On 24 January 2024, the solicitors for the Commissioner again wrote to Mr McKechnie. Relevantly, the letter included the following information about the most recent change in Mr McKechnie's classification:

6. As we explained to you in our letter of 9 January 2024, you have been classified as an "A2*" security rated prisoner since January 2023 following a decision made by a Sentence Management Panel on 31 January 2023. We are instructed that this is the same security classification you held throughout 2023 (and continue to hold).

7. We therefore presume that it is the reasons for the decision on 31 January 2023 which you seek. Please let us know if that is incorrect.

30 As to the reasons summons, the letter stated the following:

8. In our letter of 9 January 2024, we explained our view that no valid request for a statement of reasons under the Administrative Law Act 1978 (Vic) had been made because, among other reasons, no request for reasons was made within the time prescribed under that act: see s 8(2).

9. Without conceding that they are otherwise obliged by statute to do so, our client does not currently consent to providing you a statement of reasons for the decision made resulting in your current security risk classification.

10. We invite you to provide us with evidence, by way of affidavit, of any request for a statement of reasons for the decision made 31 January 2023 (or any other decision subject of your application).

31 On 1 March 2024, the solicitors for the Commissioner wrote again to Mr McKechnie. Relevantly for present purposes, the letter included further copies of the Commissioner's outline of submissions dated 5 December 2023, and the two letters dated 9 and 24 January 2024.

32 In the Commissioner's submissions dated 23 April 2024, the Commissioner stated her understanding that the reasons summons is an application for an interlocutory order requiring the Secretary or a sentence management panel to provide reasons for a decision to change Mr McKechnie's security rating.

33 I will, for abundant caution, assume that the reasons summons can be treated as directed to those non-parties as well as to the Commissioner.

34 My consideration of the reasons summons therefore turns on the question of whether there is any obligation to provide reasons for the decision to increase the security rating of the plaintiff, apparently taken on 31 January 2023 by a sentence management panel or the Secretary.

35 As set out above, Regulations reg 26(1) requires that a prisoner's classification must include decisions about matters including the prisoner's security rating. However, as set out in reg 26(2), the reasons for such decisions are not a mandatory element of the prisoner's classification. Regulation 26(2) provides relevantly that '[a] prisoner's classification may include ... (a) the reasons for decisions referred to in subregulation (1)'.

36 Further, there is no express entitlement for the prisoner to receive a copy of either the classification or any reasons for the decisions recorded in it. The Regulations are silent on this point.

37 The Commissioner relied on the decision of T Forrest J in Kheir v Secretary to the Department of Justice and Regulation.[3] In that case, a prisoner sought relief of various kinds, including an order requiring provision of documents relating to the prisoner's placement. His Honour noted that there is no entitlement to reasons at common law. His Honour went on to say that, '[s]imilarly, there is no statutory requirement, express or implied, for reasons to be provided in relation to prisoner placement decisions'.[4] His Honour also concluded that any request for reasons pursuant to s 8 of the Administrative Law Act had been made outside the 30 day time limit for such a request.[5]

38 In Mr McKechnie's submissions dated 22 May 2024, Mr McKechnie noted that the impugned decision may now be taken to have been on 31 January 2023, consisting of an increase in his security rating to the highest possible rating of A2*. He deposed to being advised of this by staff at Port Phillip Prison, drawing on information in the 'Prisoner Information Management System' used by the sentence management panel(s). Mr McKechnie also deposed to that system recording an incorrect date for his eligibility for parole, and submitted that the 'record also shows a clear error in that the applicants parole eligibility is recorded as NL', whereas he has in fact been eligible for parole since 2007. Mr McKechnie submitted that the sentence management panel must have depended on this information when it made the impugned decision.

39 Mr McKechnie also drew my attention to his affidavit dated 8 June 2023, which exhibited a letter dated 20 April 2023 from Mr McKechnie to the 'Sentence Management Unit, Corrections Victoria'. He submitted that his letter of 20 April 2023 qualifies as a request for reasons under s 8(1) of the Administrative Law Act. The letter is reproduced here in full:

20 April 2023

Andre McKechnie

C/- Port Phillip Prison

Sentence Management Unit

Corrections Victoria

Dear Sir/Madam,

RE: BASIS FOR SMU DECISIONS SINCE 9 SEPTEMBER 2022

I am concerned that decisions made by SMU CV in relation to myself, at least since 9 September 2022, may be in error due to dependence on incorrect information.

So that I may assist with the correction of these errors, before further errors are made, please provide the details of how all decisions made by SMU, in relation to myself, since 9 September 2022 were made and what information was relied upon.

If it is not already included in the requested information above please also advise me of what SMU has considered my parole eligibility date to be during the period from 9 September to present.

Please do not delay in your response. This is an urgent matter as it relates in a very serious way to how, and the conditions which, I am currently being held. I will allow 28 days from the date of this letter before taking further legal steps to resolve this concern.

Yours faithfully, Andre McKechnie

cc: Commissioner CV, Victorian Ombudsman.

40 The letter did not refer to s 8 of the Administrative Law Act and did not seek a statement of reasons for any decision to increase Mr McKechnie's security rating. It was a request for details of how all decisions made by the 'Sentence Management Unit' of Corrections Victoria in relation to Mr McKechnie were made and what information was relied upon by that unit.

41 It is unclear whether the sentence management unit and the sentence management panel(s) are synonymous, or are perhaps co-located. I will assume that they are.

42 However, even assuming the request made on 20 April 2023 is directed to the right entity, the request was not a request for reasons of a specific decision to increase Mr McKechnie's security rating. It was not only a very broad request, it was a request for different things. Those things were decision-making processes ('how all decisions made by SMU ... were made') and the information used. That request might properly have been answered without the provision of statements of reasons for specific decisions. Further, the only specific concern raised about the process of decision-making and information relied upon was Mr McKechnie's parole eligibility date. Mr McKechnie did not ask for any reasons as to any decision increasing his security rating.

43 For these reasons, I am satisfied that the letter was not capable of being a request for the purposes of s 8 of the Administrative Law Act.

44 Strictly speaking, it is not necessary to go further. However, the parties were in dispute about whether the 20 April 2023 letter could in any event be considered to have been made within 30 days after the impugned decision came to the knowledge of Mr McKechnie. I will also address this issue.

45 Section 8(2) of the Administrative Law Act provides:

(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.

46 This is a difficult issue, because of the paucity of evidence as to any direct notification of the impugned decision to increase Mr McKechnie's security rating. Putting aside the possibility that there was a notification that does not appear in the evidence, an indication that Mr McKechnie's security rating had changed seems to have come to Mr McKechnie's knowledge indirectly through changes in his placement conditions.

47 Mr McKechnie's original affidavit in support of the relief he seeks in this proceeding stated that he had been held in segregation at Port Phillip Prison since about 19 September 2022. The affidavit relevantly stated:[6]

Due to cruel and unusual treatment from Corrections Victoria since, at least, 19 September 2022 which has brought me to now being held in segregation at Port Phillip Prison (a prison within a prison), I sent a letter to the Sentence Management Unit of Corrections Victoria by letter dated 20 April 2023 (see exhibit AM1 page 1) aimed at alerting Sentence Management to the possibility of errors and offering to assist to identify the errors.

48 He now submits that, consistent with the content of the letters sent on behalf of the Commissioner on 9 and 24 January 2023, and as advised by staff at the prison, the impugned decision was on 31 January 2023.

49 Whether the decision in question was on or about 19 September 2022, or on 31 January 2023, in either case it seems that the letter of 20 April 2023 was sent more than 30 days after an alteration in his placement conditions came to his knowledge. If knowledge of the alteration in his placement conditions amounted to knowledge of the impugned decision referred to in his proposed amended originating motion, then either way, the letter of 20 April 2023 was out of time.

50 The parties were also in dispute as to whether a sentence management panel is a 'tribunal' that may be required to give reasons under s 8 of the Administrative Law Act. I was not taken to any decided case on the issue. This is an issue of potential precedential significance.

51 A tribunal means 'a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice...'.[7]

52 Mr McKechnie relied on the oft-cited remarks of Mason J in Kioa v West[8] to the effect that there is a duty to accord procedural fairness in the making of administrative decisions that affect rights and interests, 'subject to the clear manifestation of a contrary statutory intention'.

53 Significantly, the classification system is set up to implement the 'right' of prisoners to be classified, as described in s 47(1)(l) of the Corrections Act. It seems a short step to conclude that changes in classification affect a prisoner's rights, or at least interests.

54 The provisions of pt 3 div 2 of the Regulations do not contain any express statement excluding the requirements of procedural fairness.

55 Neither party addressed me on whether there is a necessary implication that those requirements be excluded. Careful analysis would be needed before a conclusion could be reached on any such possibility.

56 I note also the statements made by the solicitors for the Commissioner in their letter dated 9 January 2024 to the effect that Mr McKechnie had been invited to meetings of the sentence management panels. This is suggestive that there may be a process that resembles a hearing. Analysis of aspects of the regulatory framework relating to such meetings would be required.

57 For all these reasons, it is arguable that a sentence management panel is a 'tribunal' within the meaning of s 8 of the Administrative Law Act. However, given my conclusion that Mr McKechnie's letter of 20 April 2023 was not a request for reasons under s 8 of the Administrative Law Act, it is unnecessary for me to decide this question. Given its potential precedential significance, it is appropriate to defer any further consideration of this issue.

58 For the above reasons, the order Mr McKechnie seeks in paragraph 1 of the reasons summons is not available. I cannot grant it.

59 Nevertheless, the potential impact of a decision about a prisoner's security rating is a serious matter. Mr McKechnie is clearly aggrieved by the decision to increase his security rating that, based on the available indirect evidence, appears to have been made on 31 January 2023. It is unclear whether Mr McKechnie was directly notified of it at the time, and if so whether he received a written record of his new classification and security rating, and any reason for the new security rating.

60 Although there is no guarantee that a record of any such reason was included in the new classification at that time, reg 26(2)(a) indicates that there 'may' have been a reason recorded.

61 Having regard to the terms of reg 26(2)(a) of the Regulations and the indirect evidence of the decision made on 31 January 2023, it may be possible for Mr McKechnie to bring an application by summons served on the Secretary for non-party discovery of any such record pursuant to rr 32.07 and 32.08(2) of the Rules.

62 I will dismiss paragraph 1 of Mr McKechnie's unsealed summons dated 11 January 2024.

63 The Commissioner sought costs, amongst other things relying on evidence that Mr McKechnie refused to accept service of her solicitor's correspondence dated 9 January 2024. Mr McKechnie's affidavit did not dispute the assertion that he refused to accept service of that letter.

64 Even so, I am not persuaded that I should order costs in this application. The issue in this application was a significant one and a security rating may have a serious impact on the placement conditions of a prisoner. I am uncertain whether a record of Mr McKechnie's prisoner classification as at 31 January 2023 has yet been provided to him, or whether there is any real impediment to this occurring. My orders will be silent as to costs, with the effect that (subject to any further order that may be made) r 63.20 will apply.

[1] See McKechnie v Evans (Communications Summonses) [2024] VSC 295 (5 June 2024).

[2] The letter referred to Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222, [36].

[3] [2018] VSC 222 (Kheir).

[6] Affidavit of Andre McKechnie affirmed 6 July 2023, filed 19 July 2023, [2].

[7] Administrative Law Act 1978 s 2.

[8] (1985) 159 CLR 550, 584.