Plaintiff v First defendant

1 Under a policy of the Commissioner for Corrections, prisoners in Victoria are not permitted to make telephone calls to services listed as '1800 numbers'. Should the Court make declarations that refusals of such requests made by a prisoner were unlawful under the Charter of Human Rights and Responsibilities Act 2006 (Charter)?

2 The plaintiff, Mr McKechnie, is a prisoner in Victoria. He claims that in the period October 2022 to December 2022 at Ravenhall Correctional Centre (Ravenhall) he made many requests to be permitted to access 1800 telephone numbers by those numbers being added to his account on the Prisoner Telephone System (PTS). He claims those requests were all refused. The first defendant (the Commissioner) issued a policy that such requests not be permitted. The second defendant (GEO) was and still is the operator of Ravenhall.

3 The plaintiff claims that, as a person held in custody, he retained all statutory rights, common law rights, and legal privileges to the extent that they were not taken away from him by law. He claims that he had a right to telephone services, including the ability to call persons or organisations otherwise approved by Corrections Victoria on 1800 telephone numbers and that this right is recognised in the Telecommunications Act 1997 (Cth) (Telecommunications Act) ss 3(1)(c) and 3(2)(a)(i).

4 He seeks a declaration from the Court for the following:

(a) 'The defendants, exercising the power vested in the Governor of Ravenhall..., did not give proper consideration to relevant human rights in deciding to refuse the plaintiff access to 1800 telephone numbers using the PTS, in breach of s 38(1) of the [Charter].'

(b) 'The decision of the defendants, exercising the power vested in the Governor of Ravenhall ..., was incompatible with the plaintiff's rights under ss 15(2)(a) and (e), 18(2)(b), 21(1) and (3), and for each [was] in breach of s 38(1) of the [Charter].'

5 The defendants denied that the plaintiff had made any requests for any 1800 number to be added to his PTS. They also said that the plaintiff had not established that any actions or decisions taken by GEO during the period October 2022 to December 2022 at Ravenhall engaged or limited his human rights and that the Court could not find that any unlawful action or decision had occurred.

6 The Commissioner also made submissions to the effect that it had not been established that her policy was unlawful or that it had been inflexibly applied. The plaintiff had not pleaded this in his further amended originating motion.

(a) As a matter of fact, did the plaintiff make any requests for 1800 numbers to be added to his PTS while at Ravenhall during the period October to December 2022 that were refused by either of the defendants?

(b) If so, did the refusals:

(i) engage as relevant, and/or

(ii) limit

any of the human rights relied upon by the plaintiff?

(c) Were any such limits reasonable and 'demonstrably justified' for the purposes of s 7(2) of the Charter?

(d) Depending on the answers to the preceding two questions, did the defendants act in ways that were incompatible with the plaintiff's human rights or, in making decisions, fail to consider relevant human rights, for the purposes of s 38(1) of the Charter?

(e) Were the same acts or decisions of the defendants unlawful on grounds arising otherwise than under the Charter, for the purposes of s 39(1) of the Charter?

(f) Finally, as a matter of discretion, would the Court refuse any relief even if grounds of unlawfulness under the Charter were established?

8 I have determined the second, fourth and sixth issues against the plaintiff, and decided that the third issue does not arise, with the result that his proceeding will be dismissed. My reasons for deciding these issues against the plaintiff all stem from the same fundamental flaw in his case, which I explain below. I have reached no conclusion on the third and fifth issues.

9 The first issue is whether, as a matter of fact, the plaintiff made any requests for 1800 numbers to be added to his PTS while at Ravenhall during the period October to December 2022 that were refused by either or both of the defendants. The burden of proof and onus of persuasion lay on the plaintiff on this issue.

10 The plaintiff gave evidence that he had made many requests for the addition of 1800 numbers to his PTS while at Ravenhall in the period October to December 2022 and they were all refused. He was not cross-examined. I accept that he made many such requests and they were refused. I infer that they were refused by staff of GEO. As to exactly what this means, I will address this in the paragraphs that follow.

11 GEO filed an affidavit prepared by Colin Caskie. Mr Caskie is, and was at the time the plaintiff was incarcerated at Ravenhall, the General Manager of Ravenhall. Mr Caskie described the PTS. It is a computer-based pay telephone system for prisons, managed by the Commissioner and administered within Ravenhall by GEO. The PTS only allows prisoners to make outgoing calls to pre-approved telephone numbers. The process for adding a number to the PTS at Ravenhall is and was at the relevant time as follows. The prisoner makes a request via an electronic system known as 'Gateway'. Gateway includes a 'Request for Telephone Number Application' electronic form. The request form on Gateway requires the input of details on various matters, including the number itself, the name of the owner of the number and their address, their relationship with the prisoner, and whether the prisoner wishes to apply for the telephone number in question to be an exempt number. Exempt numbers are numbers that are not be monitored, such as a number on which conversations with legal representatives will occur.

12 Upon receiving an application via Gateway, a correctional officer at Ravenhall would call the number, identify themselves and ask whether the owner of the number consents to being added to the PTS for the prisoner. Other matters may also be considered before a decision is made. The correctional officer would mark in Gateway whether the application was approved.

13 If an application is not approved, usual practice would be for the correctional officer to give a reason so that the prisoner can take the matter further if they wish.

14 Mr Caskie was cross-examined by the plaintiff. Mr Caskie gave evidence, and I accept, that the plaintiff made no request via the request form on the Gateway system for the addition of any 1800 number to his PTS account while at Ravenhall during the period October to December 2022. Mr Caskie, under cross-examination, gave evidence that the contents of a policy issued by the Commissioner known as Commissioner's Requirements - Prisoner Telephone System - CR Number 4.2.1 (CR 4.2.1) were known to staff of Ravenhall. CR 4.2.1 indicated at paragraph 4.4.10 that requests for 1300 and 1800 numbers and various other kinds of numbers 'will not be approved'.

15 Mr Caskie also gave evidence, under cross-examination, that there had only been one or two requests via Gateway for the addition of 1800 numbers to the PTS accounts maintained for prisoners at Ravenhall during the period he has been General Manager, which goes back to 2019. They were refused.

16 In submissions, the plaintiff suggested that, if asked by a prisoner whether a 1800 number could be added to their PTS, or if asked to assist in adding such a number to their PTS, staff of GEO at Ravenhall would respond in the negative.

17 I accept this. It explains why only one or two requests for 1800 numbers to be added to prisoners' PTS accounts have been made via Gateway.

18 I find that the many requests the plaintiff made to staff at Ravenhall in the period October to December 2022 were not requests made by completing the request form on the Gateway system, but were oral requests to staff members. I find that on each occasion that the plaintiff made an oral request, staff members responded in the negative. It is possible that they considered, and might have said, something to the effect that there would be no point in filling out an application on the request form on Gateway for any 1800 number because it would not be permitted. That would be consistent with CR 4.2.1.

19 The second issue is, did the refusals by GEO of the plaintiff's requests engage as relevant,[1] or limit,[2] any of the human rights relied upon by the plaintiff? The burden of proof and onus of persuasion lay on the plaintiff on this issue too.

20 There is no evidence of any of the details of any of the requests directed by the plaintiff to the staff of GEO at Ravenhall. This is a crucial gap in the evidence and a fundamental flaw in the plaintiff's case. The plaintiff bore the onus of proof in establishing that his requests for the addition of 1800 numbers engaged his human rights, and that a refusal would limit his human rights. In the absence of information setting out the detail of the requests, I am unable to identify the engagement or limitation of any particular human right.

21 The plaintiff relied, firstly, on the human right set out in ss 15(2)(a) and (e) of the Charter. Those provisions relate to freedom of expression. Sections 15(2)(a) and (e) provide that every person 'has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds ... and whether: (a) orally or ... (e) in another medium chosen by him or her.'

22 The plaintiff contended that contact with 1800 number services would be required for him to be able to seek and receive information. He contended that doing so over the telephone would fall within the right protected by ss 15(2)(a) and (e).

23 It may be possible, in some circumstances, that preventing a prisoner from communicating over the telephone might engage and limit their human right of freedom of expression. However, that would depend on what the prisoner was attempting to communicate and with whom, and whether other means of expression of that information were available. It is not possible to conclude that the human right of freedom of expression is engaged or limited in the abstract merely by reason that prisoners are prevented from adding 1800 numbers to their PTS.

24 The plaintiff secondly relied upon the human right set out in s 18(2)(b) of the Charter. That provision states that every eligible person has the right, and is to have the opportunity, without discrimination: '... (b) to have access, on general terms of equality, to the Victorian Public Service and Public Office.' By reference to the definition of 'Public Service' in the Public Administration Act 2004, public service means the public service of Victoria established under Part 3 of that Act.

25 It is not possible to see how this right is engaged or limited by preventing prisoners from accessing 1800 numbers on their respective PTS accounts. The plaintiff did not establish that a person serving a term of imprisonment would be an eligible person to apply for a role in the public service or for public office in any event. Even if this obstacle were surmounted, the plaintiff has not pointed to any particular 1800 number that he would need to access in order to access the public service or public office.

26 The plaintiff thirdly relied upon the human right set out in ss 21(1) and (3) of the Charter. Section 21(1) provides that every person 'has the right to liberty and security'. Section 21(3) provides that a person 'must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law'.

27 These provisions are concerned with liberty and security of the person. It is not possible to see how any engagement of limitation of these rights arises from preventing a prisoner from having access to 1800 numbers.

28 For these reasons, the plaintiff has failed to demonstrate that the human rights he relies upon were engaged or limited by any actions or decisions of the defendants.

29 The third issue is, were any limitations of the plaintiff's human rights entailed by the refusals of his requests demonstrably justified and proportionate for the purposes of s 7(2) of the Charter?

30 This issue does not arise, due to my conclusion on the preceding issue. However, I will make some further remarks about it.

31 Only if the plaintiff had established a limit on a human right would it have been necessary to consider whether the limit was reasonable and 'demonstrably justified' having regard to the five factors outlined in s 7(2) of the Charter. If the plaintiff had done so, the onus would then have shifted to the defendants to demonstrate that, by reference to the five factors set out in s 7(2), the limit on the human right was reasonable and demonstrably justified within the meaning of that provision.

32 The defendants relied on an affidavit of Jennifer Ann Hosking. Ms Hosking is the Acting Deputy Commissioner, Custodial Operations, of the first defendant. Ms Hosking referred to CR 4.2.1. CR 4.2.1 sets out a policy that where prisoners request approval to contact a person via the PTS the identity of that person needs to be verified and they need to provide their consent and indicate their awareness that their calls will be monitored. Ms Hosking deposed that primary reasons for this policy:

... are to ensure the safety and wellbeing of persons who may be contacted by prisoners (including victims and any person who may have an intervention order in their favour). Relatedly, it is also important for the security and good order of prisons in that the security and good order of the prison can be compromised in a number of ways via the use of the telephone system if not managed properly. ... This policy upholds community expectations in terms of protecting vulnerable members of the community (including victims of crime) and aims to ensure that further crimes are not committed whilst people are in custody. ... CR 4.2.1 does not endorse a policy whereby prisoners will be prevented from contacting the particular person or entity simply because they have a 1800 number; but as a general policy the Commissioner does not endorse such applications being approved due to the difficulty in establishing consent from the party required to receive calls and difficulties prisoners encounter when attempting to utilise these phone numbers.

33 It is not possible to assess whether these considerations meet the test in s 7(2) of the Charter in the abstract. In my view, a proper application of s 7(2) would have required identification of a particular request and refusal. Amongst other things, the application of the test set out in s 7(2) would depend on the particular 1800 number service requested and the purposes and circumstances surrounding a prisoner's request for access to that number in each case. It would also depend on any justifications given for refusing the request. In some cases it might depend on the availability of some other means for the prisoner to seek the respondent's consent to contact on an alternative telephone number, or via another medium.

34 The fourth issue is whether any act or decision of the defendants was unlawful within the meaning of s 38(1) of the Charter. Section 38(1) of the Charter provides relevantly that it is unlawful for a public authority to 'act in a way that is incompatible with the human right or, in making a decision, to fail to give proper consideration to a relevant human right'. Did the defendants act incompatibly with the plaintiff's human rights or fail to give proper consideration to relevant human rights for the purposes of s 38(1) of the Charter?

35 The determination of whether the defendants acted in a way that was incompatible with the plaintiff's human rights falls to be determined from the answer to the second issue given above, combined with the answer to the third issue (if it were to have arisen).

36 The determination of whether the defendants failed to give proper consideration to a relevant human right depends on the identification of a relevant human right engaged by the plaintiff's request, and (if one were to have been identified) the evidence of its consideration by the defendants.

37 For the reasons set out in response to the second issue above, the plaintiff has failed to demonstrate that the human rights he relies upon were engaged or limited by any actions or decisions of the defendants. This makes it impossible for the Court to reach any finding that the defendants acted incompatibly with any of those human rights. It also makes it impossible to determine that they were 'relevant human rights' for the purposes of applying s 38(1) of the Charter to the refusals of his requests. I conclude that the pleaded conduct of the defendants was not unlawful under s 38(1).

38 The fifth issue is, were the same acts or decisions of the defendants unlawful on grounds arising otherwise than under the Charter for the purposes of s 39(1) of the Charter?

39 It is not strictly necessary to determine this issue. However, I will express some observations about it.

40 Section 39(1) provides:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

41 This is a difficult provision. It has been considered in numerous authorities, but aspects of its operation still remain unclear. I will assume that I would have been required to consider any claims for relief based on grounds of unlawfulness that may reasonably have arisen otherwise than under the Charter, even if the plaintiff did not plead them.[3] Such claims and grounds need not have been successful,[4] but it has been suggested that they must not be 'colourable'.[5] A 'colourable' claim is one that is made for the improper purpose of 'fabricating' jurisdiction.[6]

42 The plaintiff submitted that there were grounds of unlawfulness arising otherwise than under the Charter that met the requirements of s 39(1). He relied on ss 3(1)(c) and (2)(a)(i) of the Telecommunications Act and Bradley v the Commonwealth[7] in this regard. He submitted that prisoners have common law or statutory rights of access to a telephone service, or have an enforceable 'privilege' to that effect.

43 The defendants contended that there was no ground of unlawfulness arising other than because of the Charter such as would permit the plaintiff's Charter claims to succeed under s 39(1) of the Charter.

44 The provisions of the Telecommunications Act the plaintiff relied upon are broad objects provisions. They provide that the objects of that Act are to provide a regulatory framework that promotes 'the availability of accessible and affordable carriage services that enhance the welfare of Australians', and to ensure that standard telephone services and payphones are 'reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business'. These provisions do not purport to confer substantive rights on people in Australia. They are incapable of doing so, at least on their own. The plaintiff did not take me to any other provision of the Telecommunications Act.

45 The plaintiff submitted that Bradley v the Commonwealth establishes that Australians have a right to connection to telephone services. I do not read the case as establishing such a proposition, or at least not in a way that could assist the plaintiff's case. The case turned on the absence of any regulatory or statutory authority for a decision that was taken by the Postmaster-General to suspend the provision of telephone services to a particular subscriber, the Rhodesia Information Centre. The case had nothing to do with internal arrangements within that subscriber's organisation. Here, the prison connected with the telephone network and could access telephone services. The analogy with Bradley breaks down at that point. Here, the question that arises is one of internal regulation of access to that network and those services from within the prison. It does not follow from Bradley that all individuals within a prison have a right of access that is compellable against the authorities responsible for the prison.

46 The Commissioner's counsel also addressed the possibility that the case might involve an inflexible application of policy, albeit at the same time submitting that this had not been established. The policy in question is contained within CR 4.2.1. Counsel pointed to aspects of CR 4.2.1 that require staff to consider particular human rights in the Charter, and that state a requirement that human rights be given proper consideration.

47 Due to the absence of any details about any specific request by the plaintiff to be connected to a particular 1800 number service, and the particular purposes and circumstances attending any such request, it is not possible to reach any conclusions as to claims of unlawfulness arising otherwise than under the Charter, or in the alternative (for the reasons explained in relation to the next issue) it is not appropriate to do so. Perhaps, if those details had been available, there might have been a viable claim of inflexible application of policy in relation to those requests.

48 As to the sixth and final issue, the Commissioner contended that the plaintiff did not raise a real controversy concerning the legality or manner of application of the policy set out in CR 4.2.1. The first defendant therefore submitted that, as a matter of discretion, the Court should refuse to entertain the application for declaratory relief.

49 Of course, the plaintiff did not in terms plead that the policy concerning 1800 numbers in CR 4.2.1 was unlawful, but as the Commissioner submitted, the plaintiff's case could properly be understood to claim this.[8]

50 Again, this issue must be considered in light of the crucial gap in the evidence in this case: there is no evidence of the particular 1800 number services the plaintiff sought to have added to his PTS, and no evidence about the particular purposes he had in seeking their addition and the circumstances in which he did so. As I have already indicated, this is a fundamental defect in his case. It undermines his claim of Charter unlawfulness, and it also makes it impossible or at least inappropriate to determine whether the refusal of requests give rise to claims of unlawfulness otherwise than because of the Charter, such as by reason of an inflexible application of the policy.

51 The High Court in Ainsworth v Criminal Justice Commission explained that declaratory relief 'must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions'. The person seeking relief must have a 'real interest'. A declaration will not be granted if it will produce 'no foreseeable consequences for the parties'.[9]

52 These principles mean that the plaintiff must be seeking relief directed to a particular controversy with practical consequences for him. His reference to having made many requests for 1800 numbers to be added to his PTS account while at Ravenhall is too general and abstract. Because the plaintiff did not lead any evidence about the particular 1800 numbers he sought to have added to his PTS account, and the purposes and circumstances attending those requests, I would in any event exercise my discretion to refuse relief on grounds that the relief sought in the case is not directed to determining a legal controversy.

53 I will dismiss the proceeding constituted by the plaintiff's further amended originating motion dated 8 September 2023, filed 13 September 2023.

54 I will hear the parties on the question of costs.

[1] Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; (2017) 52 VR 441, [174] (Certain Children); Minogue v Dougherty [2017] VSC 724, [74] (Minogue).

[3] Cf Bare v IBAC [2015] VSCA 197; (2015) 48 VR 129, [394]-[396] (Tate JA).

[4] Goode v Common Equity Housing Ltd [2014] VSC 585, [29]-[30], [39]; Certain Children [549].

[5] Director of Housing v Sudi [2010] VCAT 328, [132].

[6] Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212.

[7] [1973] HCA 34; (1973) 128 CLR 557.

[8] Commissioner's outline of submissions dated 20 October 2023, [15](3).

[9] [1992] HCA 10; (1992) 175 CLR 564, 581-582.