Plaintiff v Defendant

ADMINISTRATIVE LAW - Decision permitted laptop in place of desktop computer - Decision satisfied plaintiff's request - Limited scope to review decisions regarding administration of prisons - No bad faith - No unreasonableness.

25 September 2020, 6 November 2020 and 1 February 2021)

1 Dr Craig Minogue, the plaintiff, is a long-term prisoner in the custody of the Secretary to the Department of Justice and Community Safety, a position currently occupied by the defendant, Ms Rebecca Falkingham. Under s 8 of the Corrections Act 1996 (Vic) ('Corrections Act') the Commissioner of Corrections Victoria (the 'Commissioner') is employed by the defendant to carry out functions of the defendant in providing correctional services.

2 The plaintiff is presently imprisoned at HM Prison Barwon, in the Acacia High Security Unit and is classified as a 'maximum security prisoner' and a 'serious violent offender'. The plaintiff was previously granted permission under the Commissioner's Requirement on Prisoners' Computers[1] (the 'Commissioner's Requirement') to have a desktop computer in his prison cell for legal or educational and training purposes.

3 These reasons for judgment concern two separate decisions made by the Commissioner and Acting Commissioner, respectively, with respect to applications made by the plaintiff for permission to purchase a notebook (ie, laptop) computer and some peripheral equipment.

4 The first decision was made on 26 November 2019 (the '2019 Decision') in response to an application made by the plaintiff on 10 October 2019. By the 2019 Decision, the Commissioner refused to permit the plaintiff to purchase a laptop computer (and peripheral equipment). The second decision was made in or about mid-August 2020 (the '2020 Decision') in response to an application made by the plaintiff on 8 May 2020. By the 2020 Decision, the Acting Commissioner approved the plaintiff having access to a Corrections Victoria issued laptop, and additional external hard drive if required, but on the condition that his existing in-cell (desktop) computer be removed.

5 The plaintiff commenced separate proceedings seeking judicial review of each decision. Regarding the 2019 Decision, he filed an originating motion on 9 December 2019, thereby commencing the '2019 Proceeding'.[2]

6 A trial of the 2019 Proceeding took place on 7 May 2020. The following day, on 8 May 2020, the plaintiff made his second application to the Commissioner for a laptop computer. While judgment was pending in respect of the 2019 Decision, the Acting Commissioner made the 2020 Decision in response to the plaintiff's second application. When the Court was informed of the second application and the 2020 Decision, a mention was convened on 21 September 2020 to hear submissions as to whether the second application and the 2020 Decision rendered futile any determination in respect of the 2019 Decision.

7 At the mention, heard on 21 and 25 September 2020, the defendant contended that the 2020 Decision did indeed make any determination of the 2019 Decision futile. The plaintiff, for his part, accepted that it was no longer necessary or appropriate to seek orders in the nature of certiorari and mandamus in respect of the 2019 Decision but, nonetheless, wished the Court to proceed to consider whether declaratory relief should be granted in respect of the 2019 Decision.

8 Following those hearings, the plaintiff filed an originating motion on 7 October 2020 in respect of the 2020 Decision commencing the '2020 Proceeding'.[3] He also applied (without opposition) to amend the relief sought in the 2019 Proceeding to no longer seek orders in the nature of certiorari and mandamus and to only seek declarations. Additionally, he was granted leave to amend the terms of the declarations which he had sought in the 2019 Proceeding and the 2020 Proceeding, and did so in each proceeding. On 12 November 2020, the defendant filed a summons seeking the summary dismissal of the 2019 Proceeding.

9 Having regard to these steps, the Court ordered that there be a single, combined hearing in respect of the following matters:

(i) the defendant's application for summary dismissal of the proceeding; and

(ii) (if the proceeding is not dismissed), whether the Court should grant the amended declaratory relief sought by the plaintiff; and

10 At the trial, which took place on 1 February 2021, the matters for which the plaintiff sought determination were further refined. The plaintiff stated that he did not require any determination of the 2019 Proceeding, having already withdrawn any application for certiorari or mandamus in respect of the 2019 Decision and conceding that the declaratory relief he sought in the 2020 Proceeding covered anything he would have wished to seek in the 2019 Proceeding. His remaining purpose for continuing the 2019 Proceeding in conjunction with the 2020 Proceeding was to enable him to rely upon the factual background relating to the former for the purpose of the latter. The defendant agreed to have the factual material of the 2019 Proceeding admitted into evidence to the extent it might be relevant for the 2020 Proceeding.

11 With the understanding that the evidence filed in the 2019 Proceeding is admitted in the 2020 Proceeding, the 2019 Proceeding may be dismissed without adjudication. Therefore, there is no need to determine the defendant's application for summary judgment in respect of the 2019 Proceeding.

12 Against that background, these reasons for judgment deal only with the 2020 Decision, but may consider factual material from the 2019 Proceeding to the extent that it is relevant to the 2020 Proceeding.

13 Before going into the specific issues for consideration, it is necessary to provide further background to the two decisions.

14 By a written application to prison authorities dated 10 October 2019, the plaintiff requested permission to purchase hardware in addition to existing computer hardware, namely:

(1) a notebook computer with a 15 inch screen (keyboard & touchscreen), without CD drive and not configured for gaming, but which includes an Office suite of software & Adobe Acrobat Reader; and

(2) a cable which can link to my desktop computer to the notebook for the transfer files; and

(3) a cable which can link to my desktop screen. (At a total cost of around $850).

15 The written application referred to a further, attached memorandum of the same date with additional information which the plaintiff asked the prison authorities to take into account. That memorandum comprised three typed pages. In it, the plaintiff referred to his need for a notebook computer to enjoy:

'the common law right to have equitable access to the Courts [...] in a matter where I am a defendant in a serious criminal matter, and a plaintiff in a civil matter';[4] and

'the common law right to communicate with my lawyers and to seek and receive legal advice, and to give instructions for a criminal matter before the Court'.[5]

16 In addition to those claimed common law rights, the plaintiff's memorandum referred to various provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the 'Charter') and the Corrections Act.

17 The plaintiff provided what he referred to as 'an illustrative example' of why a laptop computer was a necessity to him. He gave the example of a civil proceeding in which he was a plaintiff when counsel for the Secretary to the Department of Justice referred in court to a case authority to which the plaintiff did not have access. Although the plaintiff had been provided with case authorities in electronic format, he did not have access to that material in court due to a lack of a portable device to bring the data files with him. In his memorandum, the plaintiff argued as follows:

When participating in video conferencing, phone calls, visits and at Court, in relation to matters associated with the administration of the law, issues will arise, often without advance notice, in consultation with lawyers, or in matters before the Court, where it will be necessary for me to have access to documents (for my reference) which have been provided to me in electronic format and which cannot practically be carried with me in hard copy. But the prison system will not currently allow this basic facility of access to legal documents in my matters.

The obvious solution to the acute disadvantage which I am suffering in access to documents in electronic format is that I be permitted to purchase and have in my possession for my use, a notebook computer.

18 As mentioned, the plaintiff's application was for hardware that was additional to existing computer hardware. For a long time he had had a desktop computer in his prison cell which he had used, amongst other things, for preparing for numerous civil proceedings in which he had engaged over the years, frequently representing himself.[6]

19 Because the plaintiff is classified as a 'major offender' within the prison system, questions which involve his access to computer equipment are first considered by Corrections Victoria's Major Offenders Unit ('MOU') and, if considered appropriate, escalated for decision to the Commissioner upon a recommendation made by the High Risk Management Advisory Panel ('HRMAP').

20 In this case, Mr Brendan Money, Assistant Commissioner, Sentence Management Division, prepared a memorandum for the MOU dated 29 October 2019. In a two and a half page document, Mr Money set out some personal background relating to the plaintiff and then described the issue which had arisen from the application for purchase of a notebook computer. Mr Money specified that the notebook that was requested was in addition to the plaintiff's existing computer hardware. Mr Money repeated the computer specifications the plaintiff had detailed in his application and their estimated cost. He noted that the hardware requested was not on the 'approved hardware list' and that advice had been sought from the Digital Forensics Team within Corrections Victoria. That Digital Forensics Team provided two options which Mr Money listed in his memorandum.

21 Mr Money also referred to the plaintiff's memorandum of 10 October 2019 and to the plaintiff's contention that not having access to a notebook computer placed him at a significant disadvantage in criminal and civil matters before the courts. Mr Money referred to examples the plaintiff had given as to why a notebook computer was necessary, including for seeking and receiving legal advice and giving instruction to his lawyers either via the prison telephone system, on visits at the prison or in cells at Court. Mr Money noted that the General Manager (ie, the Governor[7]) at Barwon Prison, where the plaintiff was held, was not supportive of the plaintiff having a notebook computer. Specifically, the General Manager thought that a notebook computer was neither appropriate nor necessary because he considered that the plaintiff's current access to a personal in-cell computer provided adequate access to accommodate his requirements in the preparation of outstanding criminal and civil legal matters.

22 In conclusion, on behalf of the MOU, Mr Money did not support the plaintiff's application. The HRMAP, chaired by the Deputy Commissioner, Offender Management Division (Ms Larissa Strong), considered the memorandum from the MOU and also came to the conclusion that the application should not be supported. Accordingly the HRMAP recommended to the Commissioner (Dr Emma Cassar) that she not approve the plaintiff's application. The Commissioner did not approve the application and her decision was communicated orally to the plaintiff by a prison officer on 27 November 2019.

23 Soon thereafter, the plaintiff filed the originating motion that initiated the 2019 Proceeding. By way of relief, he sought an order to quash the decision (certiorari) and that the defendant remake the decision according to law (mandamus). Additionally, he applied for certain declarations to be made. In support of that relief, the plaintiff filed numerous affidavits.[8] Affidavits in opposition were filed on behalf of the defendant.[9]

24 Of some significance, the plaintiff filed one affidavit from a solicitor, Nicholas Rolfe sworn 27 April 2020 (the 'Rolfe Affidavit'), which provided some information which the plaintiff had not included amongst the information in his application for consideration by the MOU, the HRMAP or the Commissioner. That information related to the criminal offence to which the plaintiff had alluded in his application but had not otherwise been the subject of any detailed description. Mr Rolfe explained that he is the solicitor acting on behalf of the plaintiff in respect of 38 charges brought against the plaintiff relating to alleged historical sex crimes committed prior to his incarceration in 1986. Mr Rolfe stated that the criminal matter was to be set down as a contested committal later in 2020, and that the hand-up brief (excluding exhibits) comprised 1600 pages and that a further 5200 pages had recently been served on Mr Rolfe as additional material. He explained that it was not practical or possible for the plaintiff to have access to paper copies of all documents and that without his client having access to the documents it would be difficult 'and one view, almost impossible' to be properly instructed. Mr Rolfe considered that it was necessary for his client to have access to electronic versions of the documents when appearing in court (via video conferencing, or in person), and when seeking and receiving legal advice and giving instructions to his lawyers either via the prison telephone system, on prison visits or in the cells at court.

25 As already mentioned, the day after the trial of the 2019 Proceeding on 7 May 2020, the plaintiff made his second application to the Commissioner for a laptop computer. The plaintiff's second application to purchase a laptop computer was again made in writing. It comprised a typed nine page memorandum with 33 paragraphs accompanied by six attachments. He explained in his memorandum-

This is a new application which contains significantly updated information and evidence that was not provided and/or properly considered, when I made a similar application on 10 October 2019.

26 Specifically, he asked that the prison authorities take into account the fact that he had been charged with 38 criminal offences in relation to a complex criminal case spanning 34 years involving a brief of evidence of over 2000 pages, DNA evidence of over 800 pages and a further 5220 pages of material which had been disclosed by Victoria Police.

27 In his memorandum the plaintiff detailed the hardware that he was applying for and the means of procuring it, as follows:

1. obtain at my cost, a second hand laptop computer which has a 16-17 inch screen and a CD burner;
2. physically disable or remove any and all Wi-Fi, modem, blue-tooth and other such features and devices so it is impossible to connect to the internet through the laptop;

1. format the hard drive so as to permanently delete all programs and information from the device; and

1. locate a utility program which can be used to create and maintain, by a USB cable between the laptop and my desktop computer, a mirror copy of the hard drive of my 12 year old desktop computer (XP Home service pack 3) and all of its programs and data files.

28 The plaintiff explained that this would enable him to prepare his defence in his cell in which he is locked for 22 hours or more a day. On the occasions that he is moved from his cell and secured in a different locked room, he would then be able to communicate with his lawyer with access to his documents and defence preparations. The plaintiff said -

The lap-top computer will simply be a portable version of my old desktop computer with the same hardware capabilities and the same old software versions which do not include any 'internet' features.

The plaintiff explicitly referred to s 38 of the Charter and the obligations of the decision-maker to give proper consideration to his human rights. He identified the substance of the rights that he relied upon and how he considered they may have been impinged, saying:

My right of unimpeded access to the Court, and my right to be heard by the Court in my own defence, is now being significantly impeded because I am being prevent (sic) by the prison system form (sic) effectively communicating with my lawyer. This problem arises because I do not currently have adequate facilities to access the documents in my matter when I am communicating with my lawyer in a locked room, that is other than my prison cell where I have a desktop computer with electronic copies of the documents in my criminal matter.

It is simply not practically or physically possible for me to carry 8,109 pages of documents with me to telephone calls, video conferencing, visits with my lawyers or to Court in person. ... The only reasonable answer to the problem of my inadequate access to the documents in my matter is for you to approve my application for a laptop computer as I have requested it below.

29 The attachments to the plaintiff's memorandum included the formal pro-forma prison application form for access to computer hardware and some other formalities, the Rolfe Affidavit and the index of the brief of evidence for the plaintiff's criminal matter.

30 The plaintiff's second application was considered following a similar procedure as the consideration of his first application. That is, it was first the subject of an MOU report to the HRMAP, dated 27 July 2020. On this occasion, the MOU report was written by Ms Jenny Hosking, Acting Assistant Commissioner, Sentence Management Division. It comprised a two and a half page document outlining the plaintiff's background and stating the issues to be considered. Again, it was acknowledged that the hardware that was sought was to be in addition to his existing computer hardware configuration, and the specification of what he requested was set out.

31 Specifically, the MOU report referred to the claim by the plaintiff that he needed the laptop because of the impracticality of accessing in excess of 8000 pages of documents when communicating with his lawyers and giving instructions in relation to his criminal proceeding. Once again, advice had been sought from the Digital Forensics Team because the type of hardware requested was 'not on the approved hardware list'. The Digital Forensics Team had reported that:

(a) second-hand devices were prohibited within prisons;

(b) there were certain risks associated with laptops;

(c) a hard drive could be formatted to clear as much data as possible;

(d) a cable could be used to connect computers but doing so might involve some compatibility issues;

(e) there were several back-up utilities which could be utilised but would need to be reviewed should a laptop be approved; and

(f) if a laptop were approved, it was suggested that a new laptop be provided together with a Corrections Victoria approved external hard drive to be able to copy/back up data and to use between the in-cell computer and the laptop.

32 The MOU report noted that Barwon Prison management was not supportive of the plaintiff's application but had suggested, alternatively, that the plaintiff use a vacant laptop loaned to him for legal visits onto which his documents could be transferred via a USB or hard drive from his in-cell desktop computer. The MOU supported Barwon Prison management's suggestion that the plaintiff use a vacant laptop on loan and made that recommendation to the HRMAP.

33 Nevertheless, after considering the matter and the MOU report, the HRMAP recommended that the plaintiff be supplied with a new Corrections Victoria-issued laptop (ie, not an occasional laptop on loan) on the condition that his current in-cell computer be removed and, further, that an external hard drive be supplied if it was required. That recommendation was made to and approved by the Acting Commissioner of Corrections Victoria.

34 On 26 August 2020, a prison officer at Barwon Prison orally conveyed to the plaintiff the Acting Commissioner's decision that a laptop be provided to the plaintiff on the condition that his in-cell desktop be removed. That oral advice was followed up by a letter on 4 September 2020 from Ms Melissa Westin, Deputy Commissioner, Custodial Operations, Corrections Victoria, in which she wrote -

I write regarding your recent application requesting permission to purchase computer hardware. Your application was referred for consideration via High Risk Management Advisory Panel (HRMAP) process for additional oversight and consultation, which was ultimately reviewed by the Commissioner for final consideration.

In consideration of Commissioner Requirement - Prisoner Computers 2.12, section 4.3.9, it states 'at no time will permission be given for a computer that has been in the community, to be issued whilst in custody', therefore second hand devices are prohibited within prisons, and in consideration of the HRMAPs recommendation, the Acting Commissioner determined access to a Corrections Victoria issued laptop was appropriate on the grounds that your current in-cell computer is removed.

I understand this information was relayed to you by Barwon Prison management on 26 August 2020.

35 Thereafter, the plaintiff sent a number of documents to the prison authorities emphasising that his application was for a new laptop in addition to his in-cell desktop computer, seeking reasons for the decision and, in a letter dated 22 September 2020, setting out eight pages of terms and conditions that he required the prison authorities to agree to in providing him with a laptop computer. Those eight pages contain some 18 terms under headings. His proposed terms included:

(a) that the laptop be in addition to him continuing possession of his desktop computer;

(b) admissions to be made by the Secretary about his behaviour and the reasons for his current placement;

(c) the locations where he would be entitled to have possession and use of a laptop;

(d) the software attributes of the laptop;

(e) the duration for which his possession and use of the laptop would extend;

(f) the functionality of the laptop computer;

(g) the confidentiality of any data stored on the laptop and communications he made with his lawyers; and

(h) some procedures surrounding the resolution of any disputes between himself and the defendant arising from his possession and use of the laptop.

36 By letter dated 25 September 2020, Ms Debra Coombs, principal solicitor at the Victorian Government Solicitor's Office ('VGSO'), responded to the plaintiff's various letters including his letter seeking agreement on the terms and conditions of the provision of the laptop (the 'VGSO Letter'). In that letter, Ms Coombs wrote:

The proposed laptop is new and will have the standard Corrections Victoria software on it. It will be accompanied by a 27 inch monitor and cabling for printer.

Our client's instructions are:

• You sign a standard Corrections Victoria computer agreement for the laptop, which is permitted for your current criminal prosecution, including any appeal, and your current civil actions, subject to your compliance with the Commissioner's Requirement on Prisoner Computers and with the signed agreement. The agreement includes the audit of the laptop for security checks.
• Corrections confirms that you have not been convicted of misusing a prison in cell computer.
• You are held in your current placement due to the risks associated with your alleged offending behaviour, which charges are before the courts.
• The laptop is an alternative to the desktop computer, and it can be used in cell, except in an observation cell. It can also be used in a yard attached to your cell, in a management day room when you are airing one out, in visits with lawyers and when you use telephones providing you are one out at the telephone.
• The laptop can be used in all public and private prisons, but not in holding cells, where you may not be alone, nor where electricity, nor suitable chair and table are available for use. Whether the laptop can be used in court is a decision of the court.
• Prison governors and prison officers in the prisons where you are accommodated will be advised of the approval for your use of the laptop in the above situations. This approval cannot extend to Police and other officers, if you are in their custody.
• The laptop will enable you to create, store and retrieve documents, but it will not be able to burn CDs. It will have sufficient capacity to handle the Police brief and more documents. It will have basic functions including Adobe Reader and VLC Media player and the ability to print. The burning of CDs will continue to be done by the prison IT officer.
• Word perfect office suite is available for purchase at $400, but LibreOffice, which is used on brief of evidence computers, is available without cost and operates on WordPerfect files. The laptop will be able to connect to an external hard drive, if it is required and approved. The desktop computer will be copied to the laptop before it is placed in the property store. Any repairs or maintenance will be first undertaken by the prison IT officer.
• Your solicitor will not be given permission to store and transfer data via an external hard drive to your laptop.
• Corrections will not share any legal materials without a warrant.
• A bag to carry the laptop safely will be arranged.
• Any dispute will be dealt with under the existing processes.

Please advise whether or not you accept these terms for the proposed laptop.

37 On 28 September 2020, the plaintiff wrote to the Commissioner in response to the VGSO Letter. In substance, the plaintiff contended that the terms of the offer in the VGSO Letter 'unreasonably and unlawfully limit relevant Corrections Act, Charter and common law rights'. On the same date he prepared the originating motion instituting the 2020 Proceeding (filed on 7 October 2020). In his initial originating motion the plaintiff sought an order for a statement of reasons for the 2020 Decision together with:

Orders and declarations from the Court as the case requires, and on such terms as the Court determines to be just under the circumstances, notwithstanding that the judgment or order or declarations had not been sought in the originating process.

38 The plaintiff was given leave to amend his originating motion to specify the declaratory relief he sought. On 9 December 2020, the plaintiff filed an amended originating motion withdrawing the previously requested relief for a statement of reasons and the unspecified declarations and inserting as the only relief sought a claim for 23 declarations spanning eight and a half pages. In substance, those 'declarations' would have the Court declare the factual substrata of the plaintiff's grounds for seeking a laptop computer (including the alleged practical impossibility of him instructing lawyers in his criminal case involving 6800 pages of documents) and, in effect, declaring findings of fact that a laptop computer is 'necessary' for him to be able to represent himself in court and to give instructions to his lawyers outside of his cell in prison.

39 The plaintiff also sought declarations of a different nature. In essence, those declarations would have the Court declare the specific application of particular provisions of the Charter and the Corrections Act and some asserted common law rights to the defendant's consideration of the plaintiff's application. The kernel of the plaintiff's application is, in my view, best depicted in paragraphs 2.16, 2.17 and 2.18 of the amended originating motion, namely:

2.16 A declaration by the Court that: On the evidence in this matter demonstrates that the defendant and her agents have failed to meet their duties to the proper administration of the law in relation to:

(a) their decision-making processes associated with the 8 May 2020 application by the plaintiff; and

(b) their written policy position on prisoner access to and use of computers as it is found in the 'Commissioners Requirement - Prisoners Computers' of July 2018 (which remains operative).

2.17 A declaration by the Court that: On the evidence before the Court, the conditions attendant to the 25 September 2020 decision by the defendant and her agents to "approve" the plaintiff's possession of and use of a laptop computer for the purposes that he had requested, were such, that the decision would operate so that the possession of and use of the laptop computer would not be fit for the purposes for which it was sought.

2.18 A declaration by the Court that: On the evidence before the Court, the conditions attendant to the 25 September 2020 decision by the defendant and her agents to "approve" the plaintiff's possession of and use of a laptop computer for the purposes that he had requested, demonstrate that the decision is without jurisdiction and unlawful due to the decision:

(a) Resulting in an unreasonable and unlawful limiting the relevant Corrections Act, Charter and common law rights;

(b) Failure to properly consider the relevant human rights as is required by law;

(c) Being so unreasonable that it bespeaks error and no decision-maker acting lawfully could have possibly made the decision; and

(d) Being not a genuinely made decision and it manifests an act of bad faith in Public Office by the defendant, the VGSO and counsel.

40 The grounds relied upon by the plaintiff included one which effectively replicates the declaration sought in paragraph 2.18 as set out above. In paragraphs 8 to 11 of the amended originating motion the plaintiff expressed further grounds for his application in these terms -

1. The defendant exercises public power as a public authority and or as a public official for the purposes of the Corrections Act 1986.
2. The defendant has a public duty of care for the 'welfare' of the plaintiff, which encompasses a lawful and reasonable decision-making process.
3. When exercising public power and making decisions which would limit the operation of any statutory or common law rights that a prisoner may have, or the consequential limiting of the operation of any relevant human rights from the Charter, the defendant has a legally enforceable public duty to make decisions in a way that:

(a) Takes into consideration all relevant matters, including matters that are required by law to be taken into account; and

(b) Is demonstrably justified and reasonably necessary under law.

1. The defendant has an enforceable public duty under law at s 1(2)(c) and s 38(1) of the Charter to demonstrate that proper consideration has been given to all relevant human rights when exercising their public powers and functions under the Corrections Act 1986.

41 The plaintiff specified the provisions of the Corrections Act and the Charter upon which he relies in the 2020 Proceeding: Corrections Act ss 1, 7, 20, 21 and 47 and Charter ss 1(2)(a), (b), (c), 7(2) and (3), 8(1), (2) and (3), 15(2)(a), (b), (c) and (e), 24(1), 25(1)(b) and 38(1).

42 In respect of the 2020 Proceeding, the plaintiff filed several affidavits.[10] The defendant filed one affidavit.[11]

43 As appears from his ground of review reflected in the declaration sought at paragraph 2.18 of his amended originating motion, the plaintiff contended that the 2020 Decision was unlawful and made without jurisdiction because it resulted in the unreasonable and unlawful limiting of his statutory and common law rights.

44 The plaintiff did not assert specific rights under the Corrections Act. Instead, he observed, correctly, that the rights contained in s 47 of the Corrections Act do not affect any rights that prisoners have at common law.[12] Insofar as the Corrections Act conferred relevant rights, and a correlative duty upon the Commissioner and/or Governor, the plaintiff argued that those rights and duties arose from the power and responsibility of the Commissioner and Governor with respect to the welfare of prisoners.

45 The plaintiff asserted that he has the following common law rights which have been unreasonably and unlawfully limited by the 2020 Decision:[13]

(a) the right to unimpeded communication with lawyers and to seek and receive legal advice, and to give instructions for a criminal matter before the courts;

(b) the right to equality at law which encompasses an equality of arms in a criminal matter before the courts;

(c) the right to seek, receive and access relevant information pertinent to a criminal matter before the courts;

(d) the right to a fair hearing of a criminal matter before the courts; and

(e) the right to adequate time and facilities to prepare a defence.

46 The plaintiff also relied upon the rights in ss 8 (recognition and equality before the law), 15 (freedom of expression), 24 (fair hearing) and 25 (rights in criminal proceedings) of the Charter which he submitted broadly reflect his asserted common law rights. He also submitted that, in breach of s 38 (conduct of public authorities) of the Charter, the defendant failed to give proper consideration to these rights when making the 2020 Decision.[14]

47 The defendant submitted that the plaintiff cannot obtain any of the relief that he sought through this proceeding because:

(a) his substantive common law and Charter claims in relation to the fair hearing of his criminal proceedings can only be asserted in the court hearing his criminal charges;

(b) his judicial review application seeks to judicially review a prison administration decision that is not amenable to judicial review in the form that the plaintiff seeks;

(c) even if it were reviewable, the decision was not unreasonable or made in bad faith;

(d) his application for relief in relation to a breach of s 38 of the Charter cannot be brought where s 39 of the Charter is not satisfied;

(e) his Charter rights were not limited so proper consideration was not required;

(f) in any case, it would be open to this Court to find that the decision-maker gave proper consideration; and

(g) the declarations sought are not necessary for the administration of justice.

Two significant obstacles to plaintiff's success

48 Before turning to an analysis of the various alleged defects in the decision-making process, I wish to identify two issues, which individually and in combination represent a significant obstacle for the plaintiff's case. As amplified below, they are that, first, the 2020 Decision satisfied the plaintiff's request for a portable computer, thereby removing the claimed barriers to his access to the courts and a fair trial; and, secondly, even if a question persisted concerning the plaintiff's access to justice in a particular case, this Court would not be the appropriate forum to seek relief.

Decision satisfied the request for portability of documents

49 First, the plaintiff received (or, at least, was offered) what he originally asked for. Throughout the entire course of these proceedings, the plaintiff's essential argument has been that he lacked the ability to take digitally stored information out of his prison cell, and that this inability was preventing his effective access to justice and to his lawyer's legal advice and representation. The digitally stored information might be, for example, large digital repositories of case authorities which were too voluminous to maintain in paper form having regard to restrictions imposed on prisoners; evidential material for his criminal case which was also too voluminous to maintain in paper form; or the notes and writings he made about those documents which were necessary or at least highly desirable to have in his possession when instructing his lawyers representing him in his criminal proceedings.

50 The plaintiff complained that the inability to take this information to court disadvantaged him when participating in proceedings, for example, because he would not have access to case authorities, and as such he would not be able to follow arguments about or make submissions in respect of such case authorities. Further, the plaintiff alluded to an inability to confer with his lawyers and to give instructions for his upcoming criminal proceeding outside of his prison cell as he is unable to refer to the evidence or the notes he had made about that evidence on his in-cell computer for the purpose of giving instructions or seeking advice. The solution he sought was to have access to a portable computer on which he could store this digital information and readily take it outside of his prison cell to court, to interview rooms or the telephone within the prison.

51 The 2020 Decision permitted the plaintiff to have a portable laptop computer. It provided the means for the plaintiff to transfer all his existing digital information and software from his existing in-cell desktop computer onto that laptop. The means of copying that information onto storage media (CDs) to transfer to others, or to receive media for transferring information onto his laptop, was also available. However, the plaintiff now objects to not being able to retain his existing in-cell computer in addition to the portable laptop computer. By definition, a portable computer is no less a computer for being portable. A new laptop will perform the same computing functions (if not more) as his 12 year old in-cell desktop computer performed. But he will only have one computer, not two.

52 The plaintiff's complaint thus boils down to a question of personal preference or convenience. He has long used and become comfortable and proficient with a particular set of software. The plaintiff's concern appears to be that the new computer may not adequately run or support that software, either at all or over the longer term. Such a concern takes issue with a particular means of addressing the plaintiff's problem about the lack of portability of his digitally-stored information rather than his enjoyment of specified common law, Corrections Act and Charter rights. At that level, his concern runs far below the fundamental issues of access to justice or to legal advice which underlie his contentions about the claimed unlawfulness of the decision. Further, the plaintiff's concerns about the decision are about the granular merits of the particular solution offered in answer to his application rather than any issue that falls within the jurisdiction of a court (this Court) undertaking judicial review of an administrative decision (the 2020 Decision).

53 The plaintiff attempted to portray the issue more broadly by arguing that the particular hardware combination offered by the defendant will not be 'fit for purpose' (see proposed declaration 2.17 above). But properly analysed, this argument is no more than a contestable assertion that the laptop alone (with other peripherals) will be less convenient to the plaintiff or may require him to adapt to software or processes that are different to those to which he has grown accustomed.

54 The plaintiff requested portability of his documents to ensure his relevant Corrections Act, common law and Charter rights. Whether or not the plaintiff's premise is correct, the 2020 Decision granted him the portability he claimed to need to enjoy those rights. Therefore, on its own logic, the plaintiff's argument that the decision unreasonably or unlawfully limited his relevant rights fails at a factual level. It cannot provide any sound basis for asserting that the decision-maker lacked lawful jurisdiction to make the 2020 Decision.

55 Secondly, there is a strong body of authority which suggests that the proper forum for seeking relief against an alleged denial of access to justice or denial of a fair hearing is the court hearing the particular case in respect of which that denial is claimed.

56 A right to a fair trial, more accurately expressed, is a right not to be tried unfairly.[15] The 'right' to a fair trial and the 'right' of access to courts overlap - but neither actually consists of a singular actionable right. Rather, they jointly comprise a range of elements understood to be inherent requirements of a common law based system for the administration of civil and criminal justice.[16] These rights are manifested in the rules of law and practice designed to regulate the course of the trial.[17] An available remedy for the infringement of one's 'right' to a fair trial is for the judge hearing the case to order an adjournment or stay of the proceeding to prevent a miscarriage of justice.[18] Ultimately, if an appeal court is satisfied that a trial was not conducted fairly and that a substantial miscarriage of justice has occurred, an accused person has a right to have the conviction set aside.

57 Observations of these kind led Basten JA (Beazley P agreeing) in Commissioner of Corrective Services v Liristis ('Liristis') to say:

... this circumstance contradicts the usefulness of describing the accused's interest in the conduct of a fair trial as a 'right'. It is not a free-standing right enforceable by orders of the Supreme Court in proceedings unrelated to trial. It is aptly described as an immunity from conviction where the trial has been unfair, in the eyes of the law.[19]

58 The facts in Liristis bore some similarity to the facts of the present case. A prisoner facing charges for sexual assault in the District Court of New South Wales sought access to computer equipment whilst in prison to assist the preparation of his defence. He had obtained an order from a judge in the Supreme Court that the prison authorities allow him access to his own computer equipment whilst in his cell. When allowing an appeal from those orders, Basten JA said:

The question [the prisoner] sought to raise is, essentially, what is required, as a matter of law, to provide a trial which will not be unfair. There is no doubt that that issue could be raised before the trial court. But its enforcement must be indirect because he has no legal, equitable and statutory right to enforce.[20]

59 In Knight v Sellman, Cavanough J held that an injunction proceeding in the Supreme Court of Victoria to compel prison authorities to provide computer access to a prisoner was -

... not the correct vehicle to advance any claim based on the common law right to a fair trial or on the common right of access to the courts, as properly understood. As explained in Liristis,[21] any such claim should be made to the court of judge responsible for the substantive matter. That was established definitively in Liristis in relation to criminal matters. And it seems to me that the logic of Liristis shows that the same applies with respect to civil matters.

Second, because the human right to a fair trial (including the 'right of access to the courts') under s 24(1) of the Charter 'reflects that protected by the common law',[22] once again much the same should apply: any claim to enforce the Charter right should usually be made to the court or judge responsible for the substantive matter.[23]

60 In my opinion, practical considerations also support these conclusions. While there is a fundamental common law 'right' to a fair trial,[24] the satisfaction of that 'right' is not readily capable of assessment and implementation except in the specific, known circumstances of an individual case. For example, whether or not access to case authorities or particular pieces of evidence when instructing lawyers is essential to a person for obtaining a fair trial will, inevitably, turn on aspects including:

(a) the nature of the trial;

(b) the role being played by the person in the trial;

(c) the defence being advanced (if a criminal proceeding);

(d) the significance of the evidence;

(e) the need for instructions to be given to the person's legal representatives in respect of that evidence; and

(f) other available means for giving those particular instructions.

61 The plaintiff's central argument is that the 2020 Decision was made without jurisdiction and was unlawful because it 'resulted' in an unlawful limitation on his common law rights including, most pertinently, his right to a fair trial and to unimpeded access to the courts. In advance of the (criminal) trial and without the judge having knowledge of the precise requirements for the fair trial of the particular proceeding (or the responsibility for ensuring that fair trial), it is plainly difficult for a judge to reach any conclusion as to whether the lack of any particular computer facility has resulted (or will result) in the denial of a fair trial for a prisoner-participant.

62 As noted, the plaintiff now only seeks declaratory relief. The grant of declaratory relief is discretionary. The power to make a declaration, as with any exercise of discretionary judicial power, is not at large. It may be exercised only as necessary for the administration of justice according to law.[25] I would not exercise my discretion in favour of making any declaration (either as sought or otherwise) because of the two fundamental obstacles I have already identified, namely:

(1) even if I were to accept the plaintiff's principal premise that without the portability of his documents he is denied access to the courts and a fair hearing, the 2020 Decision permitted him that portability; and

(2) the more appropriate forum for determining whether his trial is or will be conducted fairly and that he has proper access to the court is the actual court that is hearing the (criminal) case in question.

63 In those circumstances, any declaration would be superfluous or merely advisory and, therefore, of little or no utility. This conclusion constitutes a sufficient basis to dismiss the proceeding. Having reached that conclusion, strictly speaking it is unnecessary to deal with the defendant's further arguments. Nevertheless, because I consider that they supply additional reasons for dismissing the proceeding I will deal with them briefly.

Limited scope for the decision to be judicially reviewed

64 The defendant submitted that, other than being reviewed for being made for an improper purpose, in bad faith or being legally unreasonable, decisions made by prison authorities in accordance with broadly conferred and general powers in the administration of a prison are not ordinarily amenable to judicial review.

65 In this case, the plaintiff did not assert any particular statutory right to a computer or correlative statutory duty on the part of the prison authorities to supply him with one. Rather, the 2020 Decision was made in the exercise of broadly conferred and general powers: namely, the powers and responsibilities of a Governor of a prison (now known as a General Manager) in relation to the management, security and good order of a prison and the safe custody and welfare of the prisoners,[26] and the power to authorise the entry of property into prisons.[27]

66 In such circumstances as these, courts are generally reluctant to interfere with the management of a prison unless there is a clear infringement of an Act or Regulation.[28] I approach the determination of this case with the same reluctance.

67 Alternatively, or in any event, the defendant submitted that the 2020 Decision cannot be impugned as 'unreasonable'.

68 The law requires that the exercise of a discretion or power conferred by statute must be exercised reasonably.[29] Where it is claimed that a statutory power has been exercised unreasonably it is necessary to consider the proper construction of the relevant statute to determine if, in effect, the relevant power has been abused.[30]

69 In the absence of reasons given for the decision, a finding that a decision was unreasonable may be inferred objectively from the facts and from the matters falling for consideration in the exercise of the statutory power. Unreasonableness may be a conclusion applied to a decision which lacks an evident and intelligible justification.[31]

70 I accept the defendant's submission that having regard to the nature of the relevant power being exercised and the facts of this case, no inference of unreasonableness can be drawn. There is no warrant to infer that when exercising a broad discretionary power to balance the welfare of prisoners and the security within prisons a Governor's (or Commissioner's) decision to grant a prisoner access to a laptop computer on condition that it replace and not be in addition to an existing desktop computer is unreasonable. Management of prisons and prisoners is a complex task. It is not at all difficult to imagine considerations which would rationally justify a decision to restrict a prisoner to having only one computer while still meeting that prisoner's welfare needs.[32] There is nothing in the evidence to suggest that the decision was made other than reasonably and in the proper administration of the prison.

71 In this context bad faith implies a lack of an honest or genuine attempt to undertake the task and it involves a personal attack on the honesty of the decision-maker.[33]

72 I agree with the defendant's submission that the decision-making process as described in the affidavit of Ms Westin reveals an honest and genuine attempt by the relevant public officers to undertake the task. To repeat, the MOU prepared a paper for the HRMAP. An assessment of the security risks involved in the plaintiff having a laptop computer of the kind he applied for was summarised in that paper. The opinions of the Digital Forensics Team and of the General Manager of the prison were obtained. The HRMAP considered the MOU report and the opinions in a meeting and made a recommendation to the Acting Commissioner who made the decision. Through her delegates and agents, the defendant continued to engage with the plaintiff's follow-up complaints and requirements leading to the comprehensive and detailed proposal contained in the VGSO Letter.

73 In my view there is no basis at all to infer any dishonesty or any lack of genuineness on the part of the relevant public officers.

74 The plaintiff pointed to three specific events as evidence of bad faith on the part of the defendant and its officers. The first event was a chain of email correspondence from the VGSO, on behalf of the defendant, to the Court in August 2020 to alert the Court to the fact that the plaintiff had made a second application for a laptop computer which the Acting Commissioner was soon to decide. This email correspondence was not copied to the plaintiff in the first instance but, upon the Court's insistence, was later copied to the plaintiff. Although regrettable that it was not initially passed on to the plaintiff, the communication was evidently intended as a courtesy to the Court in circumstances where a decision in relation to the 2019 Proceeding was pending. The second event was the fact that Ms Westin referred to the incorrect version of the Commissioner's Requirements in her affidavit, a mistake which was quickly rectified at the trial by the defendant conceding the error and accepting that the earlier version of the Commissioner's Requirements was applicable. For relevant purposes there was no material difference between the two versions. The third event was an apparently erroneous statement by Ms Westin that the plaintiff had not previously had a laptop computer when, it appears, he did have a laptop computer early in his prison sentence. None of these matters was of any significance throughout the decision-making process. At most, they amount to an oversight of appropriate protocol and minor examples of some carelessness in the preparation of affidavit material for the 2020 Proceeding. These events do not supply any sufficient basis for an inference of bad faith in making the 2020 Decision.

Decision did not limit human rights under the Charter

75 Section 38(1) of the Charter makes it unlawful for a public officer to act in a way that is incompatible with a human right. The defendant accepts that s 38(1) applies to her and those acting on her behalf within the correctional system.

76 Although the plaintiff includes the Charter rights of equality before the law (s 8) and freedom of expression (s 15) among the rights said to be relevant to his case, I consider that the more material rights are the right to a fair hearing (s 24(1)) and the rights in a criminal proceeding relating to the adequacy of time and facilities to prepare a defence and to communicate with a lawyer (s 25(2)(b)). To the extent the first two rights could be engaged by the circumstances of this case they are effectively taken up in the consideration of the latter two.

77 I accept the defendant's submission that nothing the defendant has done or failed to do has infringed or limited the plaintiff's right to a fair hearing or the adequacy of his facilities to prepare his defence or communicate with his lawyer.[34]

78 As already stated, the 2020 Decision (and the correspondence that ensued thereafter up to and including the VGSO Letter) would have, if accepted by the plaintiff, provided the plaintiff with the means of the portability of his digital information that he had sought. The decision provided the means of enhancing his prospects of a fair trial and being able to communicate with his lawyers for the purpose of preparing his defence, not limiting them. The complaint that the decision is an effective refusal of his application and an effective denial of his rights should be rejected.

79 Thus, by making the 2020 Decision and seeking to implement it up to and including the VGSO Letter, the defendant did not unlawfully act in a way that was incompatible with the plaintiff's human rights as provided by ss 24 and 25 of the Charter.

80 Section 38(1) of the Charter further provides that it is unlawful for a public authority, in making a decision, to fail to give proper consideration to a human right. The plaintiff alleged that the defendant cannot demonstrate that she gave any or any proper consideration to his human rights provided under ss 24 and 25 of the Charter.

81 The defendant made alternative arguments in relation to the plaintiff's allegations:

(a) first, the obligation to give consideration to the rights did not arise; and

(b) secondly, if it did, the Court should conclude that the defendant did give proper consideration to those rights.

82 Turning to the first argument, I accept that the question whether proper consideration has been given to a Charter right only arises if a Charter right is relevant because something that a public authority is about to do (or not to) will limit that right.[35] For reasons already explained, no limitation of either of the relevant rights was occasioned by the 2020 Decision. I therefore accept that the question whether or not proper consideration was given does not arise.

83 Alternatively, in circumstances where an obligation to give proper consideration does arise, it will be sufficient in most cases that there is some evidence that shows that the decision-maker seriously turned his or her mind to the possible impact of the decision on the affected person's human rights. Proper consideration does not require formally identifying the correct rights, nor does it require any sophisticated legal exercise.[36]

84 From all the circumstances in this case, I infer that the Acting Commissioner (through the consideration given by the MOU and the HRMAP, making recommendations to her) did give proper consideration to the relevant human rights, namely the right to a fair hearing and the right to have adequate time and facilities to prepare a defence to a criminal proceeding and to communicate with a lawyer in respect of those proceedings. Those circumstances are:

(a) before making the 2020 Decision, the MOU, the HRMAP and (through them) the Commissioner had considered the plaintiff's application made on 10 October 2019 which had explicitly referred to the Charter rights which the plaintiff later relied upon in his application made on 8 May 2020;

(b) before making the 2020 Decision, the trial of the 2019 Proceeding had occurred which, among other things, involved the plaintiff's complaint that the defendant failed to give proper consideration to his Charter rights;

(c) in his 8 May 2020 application, the plaintiff explicitly referred to the decision-maker's obligation to give proper consideration to his Charter rights, and to the substance of the salient rights in ss 24 and 25 of the Charter;

(d) the plaintiff's 8 May 2020 application was considered by both the MOU and the HRMAP: the MOU summarised the plaintiff's claimed need for a laptop for access to justice and for the purposes of communicating with his lawyers in these terms-

... Minogue requests access to a laptop to work on his legal material in-cell and to be able to communicate with lawyers where required when he is not within his cell and able to use his in-cell PC.

Minogue mentions that access to a laptop will assist in the preparation of his legal matters and that he will be able to reference electronic documents while on telephone calls, video conferencing with his lawyer or to Court in person.

He claims that it is not practical or physically possible for him to carry in excess of 8,000 pages of documents when communicating with his lawyers and that access to a laptop will assist in the preparation of his legal matters. Minogue indicates that a laptop is necessary so that he can have ready access to information in his criminal and civil matters.

(e) although the MOU considered that the plaintiff had managed well to date in terms of his legal matters without a laptop and that his access to a personal in-cell computer adequately accommodated his requirements for the preparation of outstanding criminal and civil legal matters, the HRMAP thought otherwise; it recommended that a laptop should be supplied to the plaintiff.

85 From these considerations I infer that it was central to the MOU, the HRMAP and (through them) the Acting Commissioner to consider, and they did consider, if and how the plaintiff's access to the courts, and the adequacy of his facilities to prepare a defence to his pending criminal charges and to give instructions to his lawyers, may be impacted by having or not having a portable computer. In short, I am satisfied that the Acting Commissioner seriously turned her mind to the possible impact of the decision on the plaintiff's rights under ss 24 and 25 of the Charter.

86 In the course of his submissions, the plaintiff applied for orders under the Civil Procedure Act 2010 (Vic) of a disciplinary nature to be made against the defendant and her lawyers (including counsel) for a variety of alleged shortcomings in their conduct of the proceeding and their communications with the Court and the plaintiff. I have already mentioned some communications between the VGSO and the Court. I do not intend to engage in any lengthy description or analysis of the shortcomings which the plaintiff alleges. It suffices to say that there is nothing in them and that the applications (assuming they were regularly made) must be dismissed.

87 As explained at paragraph 11, the defendant's summons for summary dismissal of the 2019 Proceeding need not be determined. Ultimately, the plaintiff elected not to press the 2019 Proceeding to its conclusion. That proceeding will be dismissed without adjudication and, along with it, the summons for summary dismissal will also be dismissed without adjudication.

88 For the reasons given, I will make orders, in substance, as follows:

(a) in proceeding S ECI 2019 05598: the proceeding, together with the defendant's summons filed on 12 November 2020, be dismissed without adjudication; and

(b) in proceeding S ECI 2020 03887: the proceeding be dismissed.

[1] Commissioner of Corrections Victoria, Commissioners Requirements, Part 2.1.2 (July 2018).

[2] Minogue v Falkingham (in her capacity as the Secretary to the Department of Justice and Community Safety) (S ECI 2019 05598).

[3] Minogue v Falkingham (in her capacity as the Secretary to the Department of Justice and Community Safety) (S ECI 2020 03887).

[6] These proceedings include: Minogue v Shuard [2016] VSC 797; Minogue v Lourey [2016] VSC 812; Minogue v Gloster [2017] VSC 523; Minogue v Dougherty [2017] VSC 724 ('Minogue v Dougherty'); and Minogue v Secretary to the Department of Justice and Community Safety [2020] VSC 335.

[7] As per the defendant's submissions, the job title 'Governor' is no longer used by Corrections Victoria and has been replaced by the title 'General Manager'. However, the prison General Manager is the person in charge of prison and, accordingly, the Governor for the purpose of the Corrections Act.

[8] Affidavits of the plaintiff sworn 29 November 2019 and 19 February 2020, and an affidavit of Nicholas Rolfe (solicitor) sworn 27 April 2020.

[9] Affidavits of Larissa Strong sworn 7 February 2020 and 23 April 2020, and an affidavit of Debra Judith Coombs sworn on 8 October 2020.

[10] Affidavits of the plaintiff sworn 29 September 2020, 15 October 2020, 16 December 2020.

[11] Affidavit of Melissa Westin sworn 4 December 2020.

[12] Corrections Act s 47(2).

[13] Amended originating motion filed on 9 December 2020 in the 2020 Proceeding, [6].

[14] Amended originating motion filed on 9 December 2020 in the 2020 Proceeding, [13].

[15] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 ('Dietrich'), 299-300; Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206 ('Slavevski'), 220-1 [52]; Proudfoot v DPP [2020] VSCA 138 ('Proudfoot'), [48].

[16] Commissioner of Corrective Services v Liristis ([2018] NSWCA 143; 2018) 98 NSWLR 113 ('Liristis'), 128 [67].

[17] Dietrich (n 15 ) 299-300.

[18] Slaveski (n 15) 221 [54].

[19] Liristis (n 16) 130 [72]; see also Knight v Sellman [2020] VSC 320 ('Knight v Sellman'), [201] (Cavanough J).

[20] Liristis (n 16) 132 [79].

[21] [2018] NSWCA 143; (2018) 98 NSWLR 113.

[22] Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; (2015) 48 VR 129, 250 [375] fn 328.

[23] Knight v Sellman (n 19) [212]-[213].

[24] Jago v District Court (New South Wales) [1989] HCA 46; (1989) 168 CLR 23, 29 (Mason CJ), 56 (Dean J); Proudfoot (n 15) [48].

[25] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-2; Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Liristis (n 16) 128 [64], [65]; Knight v Sellman (n 19) [187]; Knight v Assafiri [2020] VSC 439, [8].

[26] Corrections Act ss 1, 20, 21, 22A.

[27] Corrections Regulations 2019 (Vic) Part 5.

[28] Flynn v R [1949] HCA 38; (1949) 79 CLR 1, 8; Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 274-5; Anderson v Pavic [2005] VSCA 244, [32]; Brazel v Westin [2013] VSC 527, [22] and [23]; Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593; (2015) 48 VR 119, 126-7 [26].

[29] Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 ('Li') [47], [63].

[32] In oral argument, the defendant suggested several such considerations (transcript of the trial on 1 February 2021, page 60) and I need not repeat them.

[33] SCAS v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 397, [19].

[34] There was some debate between the parties about the proper construction of s 25(2)(b) of the Charter but it is not necessary to resolve that argument: even on the plaintiff's broader construction his argument still fails.

[35] Castles v Secretary of the Department of Justice [2010] VSC 310; (2010) 28 VR 141 ('Castles'), 184 [185]-[186]; Minogue v Dougherty (n 6) [74].

[36] Castles (n 35) 184 [185]-[186].