1. I subsequently reviewed the evidence and the charges against the applicant and decided that while there was evidence of assault by the applicant, I would withdraw the allegation of assault. On 27 November 2008, I wrote to the applicant, stating in part :

'In considering the statements made by prison officers, I consider there appears to be no evidence that you struck a prison officer. Accordingly, I have decided to withdraw the allegation of assault against you. As the incident occurred over 15 months ago and as I have decided to withdraw the more serious charge of assault staff against you, I see little point in proceeding with the two lesser charges of disobeying a lawful order and attempting to assault and disobey. There will be no Governor's Disciplinary Hearing relating to these withdrawn charges, and, there is no consequence against you ... I confirm I will not release the DVD security footage to you, due to it revealing information concerning the operation of the security measures in relation to Banksia Management Unit'.

1. Steps were taken by the Victoria Police to conduct an investigation which involved Detective Senior Constable Damien McKeegan of Corio Criminal Investigations Unit. The investigation of the incident is described in paragraphs 3 to 10 of Mr McKeegan's second witness statement -
   1. As previously stated I investigated the complaint in 2007 by interviewing witnesses (prison officers) and conducted a taped interview with the prison officer against whom the allegation was made. I dispute the applicant's assertion at paragraph 122(a) of his Statement of Legal Contentions that not all of the prison officers involved in the incident were interviewed by me. Three prison officers were involved in the incident and all of these officers were spoken to by me. In addition, all of these officers provided separate accounts on the day of the incident in the form of memorandums to the General Manager of HM Prison Barwon (Barwon) Mr David Prideaux. Because the prison officers gave written accounts of how the incident occurred in the memorandum to Mr Prideaux; these accounts were fresh after the incident; and the officers reiterated the same accounts to me when I spoke to them. I did not feel that it was necessary to reproduce the same material in a police document for the two prison officers who had not been accused of punching the applicant.
   2. As part of my investigation I also viewed the CCTV footage and examined the available medical evidence. I refer to the applicant's assertion at paragraph 122(b) of his Statement of Legal Contentions that medical staff should have been interviewed. I disagree. If medical staff had witnessed the incident then it would have been appropriate to obtain their account of the incident. However, this was not the case. Because the medical staff did not witness the incident, it was sufficient for the purposes of my investigation to rely on the written medical evidence of the applicant's injuries and treatment.
   3. I then compiled a brief of evidence containing this material. Upon my recommendation, the brief of evidence was not authorised for prosecution because of insufficient evidence.
   4. My recommendation to my superior not to prosecute this matter for insufficient evidence was based upon my belief that the accounts given by the prison officers that appropriate force was used to stop the applicant's advances and to force him into his cell were consistent with the CCTV footage of the incident. The applicant's version of the incident was not consistent with the CCTV footage. I also considered that the applicant's injuries were of a minor nature and the prison officer involved had acted reasonably in defending himself.
   5. I refer to paragraphs 6 to 9 of the applicant's witness statement provided on 26 June 2009. The applicant's statement is inconsistent with the CCTV footage in that the CCTV footage only shows a wrestle between the applicant and prison officer/s. Despite the applicant's claims, when he is taken hold of and forced back into his cell no prison officer can be seen punching the applicant. The applicant is also seen kicking out of his cell when forced back in.
   6. In response to the applicant's comments at paragraph 32 of his statement and paragraph 122(c) of his Statement of Legal Contentions, I can say that after the incident the applicant refused to be interviewed by Victoria Police when requested to do so.
2. On 8 August 2007, I became aware that the applicant was only willing to provide Victoria Police with a written statement through his legal representative. After 8 August 2007, I was advised by the applicant's legal representative on a number of occasions that a statement would be forthcoming. On 28 November 2007, after waiting for the applicant's statement for more than three months, I attended at Barwon in an attempt to interview the applicant about his complaint. The applicant refused to be interviewed by Victoria Police, instead indicating that a statement would be forthcoming through his solicitor. I eventually received a copy of the applicant's statement through the applicant's legal representative on 13 December 2007.
3. The applicant's refusal to be interviewed (unlike what normally occurs with alleged victims) meant that Victoria Police could not put any theories of what occurred or alternative versions of events to the applicant to respond to. From my experience, I can say that the prolonged period of time between the incident and the applicant providing his statement meant that his memory of the incident would no doubt have diminished his ability to recall the incident properly. If the applicant had agreed to be interviewed when requested by to do so, I would have been able to put certain claims/versions of events to the applicant, because I (Victoria Police) was in possession of the available evidence.
4. The applicant states, through his counsel Mr Knowles, that he wants and needs documents 12 and 13 to ensure that the incident was properly investigated. He also alleges a "failure by authorities to properly investigate the allegations of mistreatment may amount to a breach of sections 10 and 22 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter). At paragraph 17 of the applicant's statement of legal contentions, it is stated as follows :
   1. The applicant also seeks the documents in order to ensure that the incident is properly investigated. As discussed in paragraphs 29 to 31 below, a failure by authorities to properly investigate allegations of mistreatment may amount to a breach of sections 10 and 22 of the Charter.
5. There is also a difference between what is asserted by each of the parties as to the injuries that the applicant suffered in the incident. At paragraph 11 of the applicant's statement he states :
   1. .... I had cuts on my lip and ear and was left bleeding in my cell. I was dizzy and felt concussed. The nurse came to see me about 30 minutes later. The nurse told me I would need stitches for my injuries.
   2. ...
   3. In the afternoon, the doctor visited me in my cell, accompanied by prison officers. No treatment was provided to me for my injuries.

6. In paragraphs 2 and 3 of Mr Prideaux's second statement, it is stated -
   1. I am aware from reading Barwon's 1.19 Incident Report that the nurse who attended applicants' cell after the incident was Ms Helen Leeson. She noted on the report that the applicant had suffered a 'small laceration to lower lip' and a 'small laceration to left ear'. Ms Leeson further notes no treatment or medication was administered and no follow up was required.
   2. I am advised by the Project Manager of Barwon who made inquiries from the Medical Centre on my behalf and I believe that the applicant attended a doctor at the Medical Centre later on the day of the incident, but no treatment was provided to him.

1. Document 12 is described by Mr Prideaux in his first witness statement at paragraphs 19 to 22 -
   1. Document 12, being the DVD of CCTV footage within the prison relating to the incident on 27July 2007, contains footage of the applicant leaving and entering his cell in Banksia Unit, and the applicant and prison staff moving and interacting with each other and various objects.
   2. It contains information falling within s 38 of the Act on the basis that it falls within categories in s 30(1) CA as follows :
      • (a) information relating to the classification of a prisoner given to the Secretary or to the classification committee established under the Corrections Regulations 1988;
      • (d) information relating to the personal affairs of a prisoner;
      • (e) information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency; and
      • (f) information concerning the management of, or the operation of security measures in relation to HM Prison Barwon.
   3. If a person disclosed such information in breach of s 30(2) they would be committing an offence.
   4. In relation to (e), the footage contains information regarding the response to the incident adopted by the prison. In relation to (f), the footage contains information concerning the management of and operation of security measures in relation to the prison, because it shows the measures taken in response to the incident. The footage also shows information regarding the filming of the prison, which in itself is a security measure, and the areas covered (and not covered) by the filming.
2. Also, Mr Prideaux at paragraphs 24 to 26 states the problems that would occur if the CCTV footage was released. He states :
   1. While the position of cameras in Banksia Unit may be evident to an observer, the way in which they operate, the areas which they cover or do not cover, including any blind spots, and other aspects which may be gleaned from the footage itself are not evident from the cameras themselves. As noted above, Banksia Unit houses dangerous prisoners, who are or may be a danger to other prisoners and staff. Any information about the extent to which their actions may be filmed potentially threatens my staff and other prisoners and further endangers their lives or physical safety.
   2. To my knowledge no CCTV footage from within Banksia Unit has been released to prisoners or members of the public in the past.
   3. The presence of CCTV technology is a method of reducing and monitoring any potential security risk or violent incidents involving my staff or the prisoners, and also assisting in the investigation of such any incidents. CCTV is an essential part of the security and good order of the prison and my responsibilities under section 21 of the CA. The release of the CCTV footage would compromise the effectiveness of the cameras and the monitoring they provide and raise serious security issues as outlined above.

1. Document 13 is an audio tape record of interview on 10 January 2008 with a prison officer that was involved in the incident. The prison officer was interviewed by Senior Constable McKeegan and Senior Constable Lorimer from the CIU Office on 10 January 2008.
2. At paragraph 8 ff of first witness statement, Mr McKeegan describes what went on during the interview. He states -
   1. At the commencement of this taped interview the prison officer provided his full name and address and the following caution was then given to him :

'I must inform you that you are not obliged to say or do anything, but anything that you say or do may be given in evidence. Do your understand that?'

1. At the conclusion of the taped interview the prison officer was again cautioned in the above terms.
2. Other than giving the caution, I did not tell the prison officer that anything he said in the interview may be disclosed to the applicant or any other person.
3. During the interview the prison officer described the procedures undertaken by himself and other prison officers whilst within the particular unit at Barwon on the day of the incident. He also stated that he had viewed the video surveillance of the incident, and he described his duties whilst within the particular unit where the incident occurred, and his actions during the incident itself, partly with reference to that surveillance. The prison officer described various operational procedures undertaken within the prison unit prior to, and at the time, the incident. He described his observations and experience of the incident which involved a physical interaction between himself and the applicant.
4. The prison officer's version of events did not accord with that of the applicant.
5. During the interview the prison officer stated what unit of the prison this incident occurred in. The officer also stated the fact that the applicant was previously held in another unit of the prison. I understand that prisoners are held in different units of Barwon, according to their classification, which may change their imprisonment.

1. It can be seen from what I have noted above that there is contradiction in the evidence given by the applicant as opposed to the evidence called on behalf of the respondent.
2. The applicant's evidence contained many contradictions or statements that were unlikely to be correct.
3. The applicant stated that he had on numerous occasions seen the monitoring screen for the Banksia Unit, as he had on a number of occasions cleaned the room where monitors were present. He said he talked to the prison officers in that room. He stated that as the monitoring screen was 32 inches, he had no difficulties seeing the pictures thereon and, as a consequence, within about a metre knew where the parts of the unit that were not monitored.
4. Mr Prideaux stated that the monitoring screen was in fact only 17 inches and the screen was divided into 4 pictures. Further, he stated that a prisoner in the applicant's position would not be able to see the screen clearly or at all because the prisoners were at least 3 metres from the screen, and because of a screen in the room, could only look at the screen of the monitor from an angle of about 45 degrees.
5. Mr Prideaux's evidence was clear and precise and, in my view, was far more believable than that of the applicant.
6. The applicant initially said he did not want to make a complaint about the incident. However, at first, he said he changed his mind because a complaint was made against him by the prison officers, which caused him to make a complaint. However, later on in his oral evidence, he stated that he made his complaint to protect others and he felt that prison officers who acted wrongly should be held accountable. The conclusion I come to in relation to this part of the evidence is that the applicant was disingenuous and not truthful in stating he made the complaint for others' benefit.
7. The applicant admitted in cross-examination that he did not make a complaint to Dr Plunkett (the prison doctor) on the day of the incident because "others were hanging around at the time". In my view, it seems far fetched that the applicant would not have told Dr Plunkett about the assault on the day of the incident if he had in fact been assaulted.
8. The applicant produced what he said (subject to the scale not being correct) was an accurate plan of the Banksia Unit at HM Barwon Prison. However, Mr Prideaux pointed out that the plan was not accurate as the applicant appeared unaware of the operation of a camera and the position of some cameras were wrong, and in relation to other cameras was not aware of their operation.
9. The applicant admitted that it took him 4½ months to produce a statement of his version of the incident with collaboration of his solicitor. He said this time was taken because he "got moved around a lot" and that he needed to spend his limited financial resources on cigarettes and toiletries. I find the applicant's explanation of the time taken difficult to accept. Particularly bearing in mind the incident took place on Friday 27 July 2007 and by the following Monday 30 July 2007, the applicant's solicitor had sent a letter to the Director of Barwon Prison alleging that the applicant had been assaulted on the preceding Friday and mentioning numerous other matters surrounding the incident and the aftermath thereof. A further letter was sent on 31 July 2007 on behalf of the applicant by his solicitor. Given these circumstances, I find it hard to accept the applicant needed to take 4½ months to make his statement because he was "moved around a lot" or that he gave financial preference to his cigarettes and toiletries.
10. In paragraph 13 of the applicant's affidavit sworn 5 December 2007 (applicant's first affidavit) he stated after that incident : "the nurse told me I might need stitches". By comparison in the applicant's witness statement for this proceeding which he affirmed to be true and correct (applicant's witness statement), he stated "the nurse told me I would need stitches".
11. At paragraph 15 of the applicant's first affidavit he stated :

I saw the prison's doctor, Dr Plunkett, at the conference room in the unit later in the afternoon. Three or four prison officers walked me into the conference room".

1. By contrast at paragraph 15 of the applicant's witness statement, he said :

In the afternoon, the doctor visited me in my cell accompanied by prison officers.

1. The applicant said he was very familiar with the Banksia Unit. However, he said that he did not know of his right to make a complaint and, in any event, he thought talking to officials from the prison was sufficient to make a complaint. However, Mr Prideaux gave evidence that there were many notices throughout the unit which informed prisoners of their right to make a complaint and that forms were available.
2. Mr Knowles made several attacks on the credibility and the accuracy of the evidence given by the respondent's three witnesses - Mr Prideaux, Mr McKeegan and Mr McTaggart who is a Detective Senior Sergeant of Police stationed at the Corio Criminal Investigations Unit. Mr Knowles said that Mr McKeegan gave evidence that he could see one of the prison officers holding a clipboard at the time of the incident. While I understand that the applicant's counsel may have had some difficulty seeing the clipboard that Mr McKeegan referred to, on careful examination of the CCTV footage, it is clear that one of the officers was holding something that may well be a clipboard. It is noted that in paragraph 7 of the applicant's statement he refers to the "clipboard". Such statement is relevantly contained in paragraph 10 hereof.
3. Mr Knowles also made reference to the fact that the footage only took approximately 3 minutes, whereas one of the prison officers allegedly said to the applicant words to the effect that he already had his 5 minutes. While this may be so, it is clear that there were some gaps in the video which would have in fact taken a little bit of extra time and, in my view, the 5 minute time should not be thought of as being timed by a stopwatch but as an approximate time.
4. There was also criticism of the observations of both Mr McKeegan and Mr McTaggart when viewing the CCTV footage initially and on some occasions thereafter. They admitted that initially they did not see a stopping of the footage which apparently lasted for approximately 9 seconds. However, when the footage was examined in more detail, it was discovered and admitted that there was a break in the CCTV recording of approximately 9 seconds and there may have indeed been further breaks. Mr Knowles suggested that this break was at a crucial time. In my view, it is almost impossible to say whether it was at a crucial time or otherwise. However, once it was put to the respondent's witnesses about this break in the footage, it was readily admitted that there was a break of approximately 9 seconds, and that it was possible that it could have been at a crucial time. It was not suggested that there had been tampering with the CCTV footage.
5. It is clear from the memoranda that was produced in evidence that Mr McKeegan conducted interviews in relation to the incident from the 3 prison officers concerned and in relation to one of the officers, there was a taped record of interview (Document 13). Mr Knowles complained that the investigating officer did not make sufficient effort to attempt to interview the applicant. However, the applicant took some 4½ months to finally produce his written statement and would not be interviewed prior to that time. Further, he said that as far as only conducting one taped record of interview, that was usual practice as that was the only officer about whom allegations had been made against. In my view, Mr McKeegan cannot be criticised for either failing to interview the applicant or not conducting records of interview with the other 2 prison officers involved in the incident. The applicant took, in my view, an unacceptable long time which was not properly explained, to prepare his statement and, in those circumstances, the interview would have been performed a long time after the incident when circumstances would have begun to blur in the applicant's mind. Further, in not conducting a record of interview, no reason was suggested why Mr McKeegan should have adopted other than normal practice. It was also suggested that Mr McKeegan should have interviewed the medical personnel. However, I accept that it would not have been reasonable to interview such people as they were not present at the time of the incident.
6. Because of all the inconsistencies in the applicant's evidence, I have formed the view that he is not a witness of truth.
7. Weighing up the evidence of those that were called by the respondent and the evidence of the applicant, I have come to the view that, where any inconsistencies were revealed in the respondent's witnesses' evidence, those inconsistencies were properly explained. Further, I have formed the view that the respondent's witnesses did their very best to answer the questions that were put, and were witnesses of truth.
8. On the other hand, as far as the applicant is concerned, I have formed the view that his evidence, was inconsistent and was unreliable. Further, I have formed the view that the applicant, when he gave evidence, was more intent on stating what he thought would most help his case rather than endeavouring to tell the truth.
9. On the other hand, in my view, as I have already stated, the respondent's witnesses gave their evidence in a frank and forthright manner and were willing to make concessions where appropriate. Therefore, where there is a difference in the evidence between the applicant and those called on behalf of the respondent, I accept the evidence of the respondent's witnesses.

1. In my view, the proper approach in this proceeding is to deal with the application as a normal freedom of information matter without reference to the Charter. However, after I have dealt with the proceeding in that way, depending on what conclusion I reach, it is appropriate that I then apply the Charter provisions and interpret the Freedom of Information Act 1982 (FOI Act) in accordance with those provisions of the Charter that are applicable. I will deal with both documents in dispute together, unless I state otherwise.
2. In relation to both documents, the respondent claims exemption pursuant to s 38 of the FOI Act insofar as it relates to s30(1)(a), (d), (e), (f) and (g) of the Corrections Act. Also pursuant to the FOI Act, the respondent claims exemptions pursuant to s 31(1) (d) and (e), s 33(1) and s 35(1)(b).
3. Clearly, in relation to all the exemptions that I have referred to above, except the personal affairs exemption (s 33), must be considered subject to the public interest override as it is commonly referred to in s 50(4) of the Act.
4. The applicant submits that the exemptions which I have referred to and the public interest override should be interpreted subject to the Charter of Human Rights and Responsibilities Act 2006 (the Charter). In summary, the applicant relies on s 4(1)(d) of the Charter in that the respondent being a public authority is bound by the obligations in s 38(1) thereof, that is, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, fail to give proper consideration to a relevant human right.
5. Further, the applicant relies on s 32(1) of the Charter which requires that statutory provisions as far as possible, must be interpreted in a way that is compatible with human rights contained in the Charter.
6. The applicant also relies on s 10 and s 22 of the Charter. Section 10 forbids treating persons or punishing them in a cruel, inhuman or degrading way. Section 22 requires that persons deprived of liberty must be treated with humanity and dignity.
7. Section 15(2) of the Charter is relied upon on the basis that "every person has the right to freedom of expression which includes freedom to seek and receive and impart information and ideas of all kinds ...".
8. The applicant also supports his case that a prison officer being a public official is required by s 7(1)(g) of the Public Administration Act 2004 (the administration Act) to actively implement promote and support human rights.

Section 38 of the FOI Act as relating to s 30 of the Corrections Act

38 Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

1. Relevantly, s 30 of the Corrections Act reads as follows :

(a) information relating to the classification of a prisoner given to the Secretary or to the classification committee established under the Corrections Regulations 1988; or

(d) information relating to the personal affairs of a prisoner; or

(e) information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency; or

(f) information concerning procedures and plans to be adopted or followed in a prison in the event of an emergency; or

(g) information concerning the investigation of a breach or possible breach of the law by -

(iii) a person authorised under section 9A to exercise a function or power; or

information relating to the personal affairs of a prisoner includes information -

(a) that identifies the prisoner or discloses his or her address or location; or

(b) from which any other person's identity, address or location can reasonably be determined -

but does not include information that is in the public domain;

(a) a position as an officer within the meaning of Part 5;

(c) a person authorized to exercise the functions or powers of a prison officer or a medical officer;

(d) a position of being a person authorised under section 9A to exercise functions or powers.

(2) A person who holds or has held a position must not, except to the extent necessary to perform official duties powers or functions of that position, record, disclose, communicate or make use of confidential information.

DISCUSSION OF CORRECTIONS ACT

1. Following the recent decision of Secretary to the Department of Justice v Western Legal Services Inc [2009] VSC 68 (3 March 2009), his Honour Beach J made it clear that the information that was sought did not necessarily have to be in the hands of a prison officer. It was not argued otherwise before me. At paragraphs 21 and 22, his Honour made the position clear -

In this case the text of s 38 is plain. In order for a document to be exempt, the relevant enactment must prohibit 'persons referred to in the enactment' from disclosing the relevant information. Section 38 does not provide that the enactment must prohibit the person in possession of the document or the person to whom the document was provided or the person to whom the document was addressed from disclosing the relevant information : it only provides that the enactment must prohibit persons referred to in the enactment from such disclosures. Had the Parliament wished to provide that enactments of the kind referred to in s 38 of the FOI Act had to prohibit the person in possession of the document from making any disclosure then it could have so provided. There is no basis for departing from the language and plain meaning of s 38. This construction also has the benefit of providing that a document will be exempt if a non-disclosure or secrecy provision applies to its contents rather than on the more random basis of whether or not document is or has fallen into the hands of an individual who may or may not be a person to whom such a provision applies.

The Tribunal asked itself the question of whether the secrecy provisions in s 30 of the Corrections Act applied to the Secretary. This was the wrong question. The Tribunal asked itself this question because it misconstrued s 38 which only required that s 30 of the Corrections Act (being the relevant enactment in this case) prohibit persons referred to in that section (s 30 of the Corrections Act) from disclosing information of the relevant kind. Thus, in determining the matter as it did, the Tribunal committed an error of law. If I am wrong in this conclusion, there remains the Secretary's subsidiary contention that the Secretary is bound by s 30 of the Corrections Act in any event.

1. Mr Knowles correctly acknowledged that Document 13, ie the audio tape, comes within the description of s 30(1)(g) of the Corrections Act. He also said that Document 12 (the CCTV footage) does not come within any of the provisions of sub-section (1) of the Corrections Act and apart from s 30(1)(g) in relation to the audio tape, the documents do not fall within any other sub-section.

Section 30(1)(a)

1. Ms McKenzie submitted that both documents came within the meaning of "confidential information" as referred to in s 30(1)(a) of the Corrections Act. While I accept that both documents may come within a class of documents that could show classification of a prisoner, in particular which unit he was occupying at the relevant time, there is no evidence that such material was "given to the Secretary or the classification committee established under the Corrections Act". In my view, s 30(1)(a) of the Corrections Act is aimed more in relation to documents which specifically state classification of a prisoner rather than documents of the type in dispute here.

Section 30(1)(d)

1. Mr Prideaux gave evidence that any person who knew the people in the CCTV footage would be able to identify them. On the other hand, in relation to the CCTV footage, Mr Knowles stated that the faces of those in the footage could not be identified and, in any event, as his client was not seeking personal information, they could be pixillated so that it would be impossible for identification to be made. In any event, Mr Knowles stated that his client knew who the persons were in the CCTV footage.
2. In relation to the suggestion by Mr Knowles that the faces could be pixillated, for the same to happen, he would need to rely on s 25(b) of the Act which reads as follows :

(b) Where it is practical for the agency or the minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document.

1. In my view, pixillating the figures in the incident would not amount to "a deletion" of a document but in fact would amount to an altering of the document. Section 25 of the Act does not give a mandate for such to happen.
2. In relation to Document 12 being the audio recording of an interview with a prison officer, Mr Knowles stated that his client would be content if the personal information therein contained was deleted. He said the same could be deleted by reference to s 23 of the FOI Act. That relevantly reads as follows :

(1) Access to a document may be given to a person in one or more of the following forms

(d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, provision by the agency or Minister of a written transcript of the words recorded or contained in the document

He said his client would have no objection to such a transcript with all personal information being deleted. In my view, that is clearly something that could be obtained.

1. Ms McKenzie suggested that this would not be practical because the applicant himself knew the identity of the persons involved and thus it would be giving away personal information relating to those persons.
2. I have had some difficulty with this provision in the sense of whether just deleting the names of those referred would be sufficient to take the document out of the definition "information relating to the personal affairs of a prisoner" because clearly the applicant would in fact know the identity of the persons as he appears to be the only prisoner involved However, it would seem quite ridiculous, if the information relating to the applicant's own personal affairs could not be released to him in a circumstance such as this. It may be different if they were documents relating to records or other matters of the applicant as a prisoner. Therefore, I have come to the conclusion that in relation to both documents, the secrecy provision of s 30(1)(e) has not been made out because the only prisoner that appeared to be involved, was the applicant himself.

1. Mr Prideaux gave evidence that the CCTV footage would reveal certain security and operational matters, in particular where the prison officers may standing at a time or when a particular event happens. He said that that related to the operation of security measures of the Barwon prison. Further, he stated that in relation to the CCTV footage, that it could be played and replayed by prisoners and others to ascertain a number of matters relating to the operation of security measures of the prison. He stated that even though people such as the applicant, believe they know the areas covered by the surveillance cameras (within 1m), he did not believe that was necessarily so. He also stated, as I have previously mentioned, that the applicant's view of the screen would not have been as good as what the applicant stated. I accept Mr Prideaux's evidence on the basis that the applicant thought the screen was 32 inches whereas it was only 17 inches. Further, I agree with what Mr Prideaux has said that trying to view such a matter on an angle would not give an accurate picture and a 17 inch screen divided into 4 pictures would be a very small picture indeed difficult to see from a distance of 3 m. Given those circumstances, I have formed the view that the CCTV footage in fact does show operational matters of the prison relating to security.
2. The applicant gave evidence that information concerning the management or operation of security measures in the Banksia Unit was widely known amongst prisoners especially those that had spent some time in that unit including himself. He said that he knew where the blind spots were in the camera and it is easily possible for a prisoner to avoid his image being captured by the camera. However, Mr Prideaux stated that "the knowledge of Banksia's Unit long term dangerous prisoners does not extend to the operation of the unit's security cameras ...". Importantly, each piece of footage is different and what one piece of footage may disclose would be different from another.
3. I accept Mr Prideaux's evidence and have come to the conclusion that Document 12 comes within s 30(1)(f) of the Corrections Act. Mr Prideaux is very experienced in the operation of the prison and its security. As I previously said, I accept his evidence in preference to that of the applicant.
4. In relation to Document 13 being the audio tape, operational matters in relation to the management and operation of the prison can be gleaned from that interview contained therein.
5. In relation to the audio interview, I have also formed the view that certain matters contained in that record of interview would be able to be interpreted by a person listening, particularly a person familiar with prisons, such as a prisoner, would be able to glean information concerning security procedures adopted or followed in the prison in the event of an emergency. Thus, I have taken the view that a prisoner may be able to glean from both documents certain procedures adopted in the prison in the event of an emergency. Thus I find that the provision of s 30(1)(f) of the Corrections Act has been made out.

Section 30(1)(g)

1. As I have stated, Mr Knowles has rightly conceded that the audio tape comes within the meaning of s 30(1)(g). He, however, submitted that that sub-section did not relate to the CCTV footage. The CCTV footage was in fact being used by Mr McKeegan as part of the investigation of a breach or possible breach of the law and in fact played some part in the decision that neither the relevant prison officer or the applicant be charged in relation to the incident. It did contain information that concerned a possible breach of the law and was suitable to be used in an investigation and was in fact used in such investigation. That is, the allegations and counter-allegations of assault, and the allegation against the applicant that he refused to obey a lawful command. It may be that no charges were laid in relation to any of those matters. However, that does not in itself exclude s 30(1)(g) of the Corrections Act. Further, it is clear from the evidence in this proceeding that the CCTV footage of the incident would not have been brought into existence but for the incident and investigation. I am unable to elaborate further because the evidence in relation to this matter was given "in camera".
2. In these circumstances, I find that both documents are covered by s 30(1)(g).

Section 30(2)

1. Mr Knowles submitted that s 30(2) of the Corrections Act is a "carve out" provision. He stated at paragraph 52 of his written submissions :

Section 30(2) of the Corrections Act prohibits disclosure of 'confidential information' unless discussion of such information is necessary to perform official duties, powers or functions. Clearly, there must be certain circumstances in which 'confidential information' relating to prison management must be released.

1. I do not agree with the interpretation placed on s 30(2) by Mr Knowles. Sub-section (2) is a prohibition section forbidding the disclosure or communication of confidential information except in the circumstances therein mentioned. That is, it does create an exception where it is necessary for that information to be disclosed in the performance of official duties, powers or functions. Disclosure under the FOI Act that is sought in this proceeding is not necessary, for the performance of official duties, powers or functions. In my view, the purpose of that sub-section is to permit the relevant official to give information to those that might be investigating an incident or giving evidence in some type of hearing. It does not apply to a request in relation to freedom of information. Therefore, I find that the exemption claimed by the respondent pursuant to s 38 of the Act, is made out subject to s 50(4).

FREEDOM OF INFORMATION ACT

Section 31(1)(d) and (e)

1. In relation to both documents, the respondent claims exemption pursuant to s 31(1)(d) and (e). Section 31 of the FOI Act relevantly reads as follows :

(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(d) disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

(e) endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.

1. In relation to Document 12, relying upon Lawless v Secretary, Law Department (1985) 1 VAR 42 at [50], Mr Knowles submitted that s 31(1)(d) did not apply because knowledge of the methods or procedures in question are widespread and evidence of them is given daily in the courts. He referred to a report by the Victorian Ombudsman in relation to excessive force at the Melbourne Custody Centre, where CCTV footage was released and is available on the internet.
2. Mr Knowles also referred to the applicant's evidence to which I have already referred, about the applicant and prisoner's knowledge in general of the workings of the security cameras at the Banksia Unit. Further, he said that 3 memoranda were already released to the applicant in relation to the incident which would also give the applicant a considerable amount of knowledge.
3. Mr Knowles referred to the decision of State of Victoria v Brasil (2008) VSCA 37. In that proceeding, as a result of Mr Brasil being charged with offences in the Acacia Unit of the Barwon prison, a number of documents were released to the prisoner, including an incident report written by the present prison officers, and a video of the Acacia Unit.
4. It must be remembered that in the Brasil case, he was charged with certain offences, and those documents were released as part of that charge. In this instance, no charges have been brought against the prison officers or the applicant in relation to the incident.
5. Mr Prideaux in his first witness statement at paragraphs 24 ff makes the point that the security in the Banksia Unit is not in fact known to the applicant or other prisoners (see paragraph 17 above).
6. For reasons already mentioned, I prefer the evidence of Mr Prideaux to the evidence of the applicant.
7. In my view in relation to s 31(1)(d) each case must be looked at on its own merits. In this particular instance, Mr Prideaux has made it clear that to his knowledge "no CCTV footage from within the Banksia Unit has been released to prisoners or members of the public in the past". There is no contradictory evidence in relation to this statement.
8. It does not require a lot of imagination to see how this footage could be used by people in particular prisoners in the Banksia Unit in a way that would be reasonably likely to have prejudiced the effectiveness of the methods or procedures in relation to security in that unit. It is highly undesirable, that prisoners should know or be able to find out details about the way the cameras operate and actions may be filmed. It is clear from the footage that it contains information concerning the management and operation of security measures in the Banksia Unit. Therefore, a person playing the footage over and over again would be likely to discover matters that could be used to breach the methods of preventing, detecting, investigating or dealing with matters relating to breaches of the law within the unit. This is highly undesirable, as it would have a serious effect on the good and safe management of the unit.

1. I agree with Ms McKenzie's (counsel for the respondent) description of this document in relation to s 31(1)(d) when she states, in relation to describing Document 13, as -

Information describing a prison officer's description and perception of the incident, and includes description of operational procedures undertaken in the prison.

1. I accept Mr McKeegan's opinion that the information contained in Document 13 would disclose methods and procedures used by prison staff when handling physical interaction with prisoners including when prisoners are disruptive or violent. In my view, it is quite clear that this information would be likely to prejudice the effectiveness of the methods and procedure in the future because access to this information would enable prisoners to undermine the effectiveness of those methods and procedures.
2. The fact that the applicant already has 3 memoranda from prison officers does not give the assistance to someone seeking to disturb the harmony of the prison that the statements contained in the record of interview (Document 13) in fact would.
3. Thus, I have come to the conclusion that in relation to Documents 12 and 13, the exemption claimed by the respondent pursuant to s 31(1)(d) of the FOI Act is made out subject to s 50(4) of the FOI Act.

1. Section 31(1)(e) of the FOI Act deals with endangering the lives or physical safety of persons engaged in or in connection with law enforcement. In relation to Document 12, for the reasons I have stated above, release of that document would show sufficient information to persons who may be desirous of causing trouble, that it would enable those persons to endanger the physical safety of the persons referred to in s 31(1)(e).
2. It should be noted that clearly Document 12 does not come within the description of confidential information.
3. As I have largely discussed the position in relation to Document 12 when dealing with s 31((1)(d), in my view, it is clear from the findings that I have made that the release of Document 12 would indeed be likely to endanger the physical safety of the persons referred to in s 31(1)(e).
4. Mr Knowles has stated that as the applicant knows the identity of the prison officers concerned in the incident, disclosing the CCTV footage would not increase the danger. In my view, that submission misses the point. What would endanger the safety not only of those involved in the incident but any other prison officers that may work in the Banksia Unit in future, is that by repeatedly looking at the footage, any person desirous of causing some type of trouble at the unit would be assisted in knowing various operations and the method of operations that the footage contains.
5. Mr Knowles submitted that as the Banksia Unit is a high security unit, it would not affect or endanger the lives or physical safety of the prison officers, because the prisoners are kept in a high security environment. In my view, while indeed the prisoners in the Banksia Unit are in a high security environment, it is more likely that that "type of person" would look at the CCTV footage and may be able to obtain such information therefrom that would enable them to "hatch" an ingenious plan that may in turn endanger lives.
6. Mr Knowles further stated that disclosure of the disputed documents "is likely to enhance safety because it promotes transparency and accountability within the prison system". He states further :

(a) helps inmates feel they are being treated fairly, which in turn creates more professional culture in the institution, improves living conditions and enhances safety and security;

(b) can also enhance safety of prison officers; and

(c) boost the prison systems legitimacy and the public confidence in the corrections operations.

1. While the point made by Mr Knowles may be correct that transparency and accountability may help security in the prison, that must be weighed against the possibility that by people obtaining more information about the security measures in the prison, would assist prisoners in trying to either cause trouble or possibly even escape.
2. Bearing in mind the type of prisoner that is likely to inhabit the Banksia Unit (a prisoner in need of high security) in my view, release of Document 12 would be more likely to cause harm than good.
3. In relation to Document 13, the information given by the prison officer interviewed, in fact goes further than that contained in the memoranda. The information if released may assist people trying to breach the security of the unit. This would have a similar effect to what I have described in relation to Document 12.
4. Thus, for the reasons I have stated, pursuant to s 31(1)(e) of the FOI Act, subject to s 50(4) of the FOI Act, the respondent has made out the exemption.
5. I thus find that in relation to both documents the exemptions claimed pursuant to s 38 of the FOI Act as it relates to s 30 of the Corrections Act and s 31(1)(d) and (e) of the FOI Act is made out subject to s 50(4) of the FOI Act. Having made that finding, it is unnecessary that I should consider the other exemptions claimed.

(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

1. The applicant, through Mr Knowles, submitted that the public have an interest in ensuring the proper running of prisons, the safety of prisoners and the proper investigation of violence in prisons. Mr Knowles stated :

The first public interest ground is that disclosure of the disputed documents would promote the proper administration of the prison system by ensuring that its processes are transparent and accountable. In circumstances that involve the deprivation of liberty of individuals and allegations of violence and misconduct, there is a strong public interest in investigations into such incidents being fair, thorough, transparent and expeditious.

1. He further stated that there is a broad public interest in the transparency of such investigation process. In Musso v Department of Justice [2004] VCAT 1268 [47], Judge Bowman granted access in full to the relevant documents in dispute and referred to the remarks of Kellam J and Deputy President Galvin in Re Coburg Brunswick Community Legal and Financial Counselling Centre and Department of Justice (1999) 15 VAR 208. It was held in the Musso case at paragraph 47 that there is widespread public interest in the proper administration of the prison system and the liberty and rights of the individual. Kellam J and Deputy President Galvin in the Coburg Brunswick case stated -

Where there have been allegations of violence and misconduct by prison officers, and a detailed investigation has been carried out, it seems to me that the public interest requires that access be given to documents relating to both the relevant incident and to the investigation, subject, as stated, to the protection of the individuals involved.

1. In the Coburg Brunswick case, it is noted that the documents concerned basically would not give rise to security concerns if released. Most of the documents in fact concerned commercial and financial matters.
2. In the Musso case, it is noted that part of the reason for seeking the documents was that there was civil litigation underway concerning an incident in Port Phillip prison. Further, even on the applicant's version of the facts in this case, the incident at Port Phillip prison in Musso's case was far more serious. There, a prisoner was stabbed and a lock-down ensued. Judge Bowman describes the circumstances at paragraph 10 of his decision as follows :

On 19 November 1999 there was a considerable disturbance in Port Phillip Prison. A prisoner was stabbed. A lock-down ensued. A group of prisoners, including the Applicants, were forcibly extracted from their cells in Swallow Unit for the purpose of relocating them in Charlotte Unit, which is apparently more secure. This extraction was carried out by members of the Tactical Operations Group ("TOG"). It is alleged, in essence, that, during this extraction and relocation, excessive force was used by TOG, and that prisoners suffered injuries as a result.

1. The public interest override is discussed by Mr Pizer in Victorian Administrative Law at [Foi.50.440]. He there states :

The public interest override may be invoked if the VCAT is satisfied that the public interest in disclosure is so strong as to override the factors that justify the claim for exemption in the first place : Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331; (1999) 15 VAR 360. As a matter of logic, the override cannot be invoked if there is no public interest in disclosure in the first place. Accordingly, the first question that must be considered is this : Is there a public interest in disclosure?

1. In this particular instance, the injuries which the applicant suffered were minor to the point where I find that they did not require treatment. I further note that Judge Bowman decided the Musso case prior to the decision of the Court of Appeal in Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425. At paragraphs 92 ff of Osland's case, Maxwell P stated :

The power conferred on the tribunal by s 50(4), to grant access to an exempt document, is exercisable only if the tribunal concluded that the public interest requires that access be granted. That is a stringent test. As this court said in Hulls (Department of premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 342-343), 'requires' in this context is synonymous with 'demands' or 'necessitates'. There is 'a sense of the imperative'. The public interest consideration(s) said to require the granting of access must be so strong as to over-ride the public interest considerations underpinning the applicable exemption(s). the case for access must, in effect, be irresistible. ...

In my opinion, abstract policy considerations, such as the desirability of greater transparency in decision-making by the executive, have no place in the s 50(4) analysis - in this or any other case. This is so because, at the level of general policy, the act itself has already struck the balance between the public interest in the maintenance of legal professional privilege, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other.

1. In accepting the respondent's version of events of the incident rather than that of the applicant, it necessarily means that the injuries suffered by the applicant were caused as a result of "a minor scuffle" with the prison officers attempting to do their duty and no more. Further, I find that given the circumstances of the case itself, that the investigation carried out by the Victoria Police, was apparently proper. It is not sufficient to say, as Mr Knowles has contended, that neither the medical staff nor the applicant himself was interviewed. As far as the medical staff was concerned, I agree that there was no point in questioning them further because they were not present at the incident and they have recorded the applicant's injuries. Insofar as not interviewing the applicant, in my view, that was reasonable given the circumstances of this case. That is, that the applicant refused to be interviewed until he made his statement, which came 4½ months after the incident.
2. Given the circumstances which I have found above, it necessarily follows that there would be little public interest in releasing the documents sought, that is, the public interest does not require the release of those documents.
3. In any event, in doing a balancing exercise which I must, the release of the documents would do more damage to the public interest than their non-release. That is, the release would be in breach of matters contained in s 30 of the Corrections Act and contrary to the exemptions in s 31(1)(d) and (e) of the FOI Act, which could have the long term effects of damaging security in prisons, in particular the Banksia Unit of Barwon prison. It is not in the public interest that such security should be damaged. If one weighs that against the applicant's right to know and to see whether there had been a proper investigation in this particular instance after I have found there was, it seems to me there is no contest. That is, the public interest is that these documents should not be released.
4. Further, I agree with the submission of Ms McKenzie that this is not a case of "clearing the air". There the air is clear at the present time. There has been an investigation and the matter appears to be complete. In the High Court decision of Osland v Secretary to the Department of Justice [2008] 234 CLR 275, at paragraph 147 Hayne J, who was in dissent as to the actual result but not as to the clearing of the air argument, stated :

References to clearing the air, or more general references of the kind made in oral argument in this Court to a need for 'transparency' in government are, at best, statements of the values that are to be understood as informing the structure and operation of the FOI Act. Neither reference to clearing the air, nor reference to a need for transparency in government, reveals the reasoning that supports a conclusion that the public interest requires disclosure of what otherwise is privileged from compulsory disclosure

1. Thus, in my view, because in this particular instance, the air is already clear and, in any event, it would not be proper in these circumstances to allow disclosure for the clearing of the air argument. I find that it is not necessary that these documents be released to "clear the air". Thus, applying the FOI Act without reference to the Charter, the decision would be affirmed.

CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT

1. The relevant parts of the Charter relied on by the applicant are as follows :
   1. Protection from torture and cruel, inhuman or degrading treatment

(b) treated or punished in a cruel, inhuman or degrading way; or

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

22 Humane treatment when deprived of liberty

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

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

1. It is also clear that in the event that I find that the Charter has been engaged, I must consider the question of proportionality pursuant to s 7(2) of the Charter which section reads as follows :

7 Human rights - what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

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

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

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

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

Section 38

1. In examining s 38 of the Charter, it is necessary that this Tribunal for the purposes of this hearing should be a "public authority". The relevant provisions defining "public authority" are to be found in s 4 of the Charter - relevantly s 4(b), (c) and (j) -

(1) For the purposes of this Charter a public authority is -

(b) an entity established by a statutory provision that has functions of a public nature; or

1. In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body.
2. See subsection (2) in relation to "functions of a public nature".

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or

(j) a court or tribunal except when it is acting in an administrative capacity; or

Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

1. In Kracke v Mental Health Review Board [2009] VCAT 646, the President of this Tribunal Bell J was reviewing a decision of the Mental Health Review Board and at paragraph 232, his Honour stated :

As I have indicated, the other review jurisdictions of the tribunal are generally based on the model of providing merits review of decisions of an administrative character, as in the present case. I therefore accept the Attorney-General's submission that, in its review jurisdiction, the tribunal is exercising administrative power and is thereby a "public authority" within s 4(l)(b) and (c) and not excluded by s 4(l)(j) of the Charter. The exercise by the tribunal of its review jurisdiction with respect to decisions of the board under the Mental Health Act is an example of this general type. There may be individual exceptions which have to be considered case by case.

1. In this particular instance, the Tribunal is exercising a very similar review jurisdiction to what was exercised by the President Bell J in Kracke's case. That is, instead of reviewing a decision of the Mental Health Review Board, it was reviewing the decision of the FOI officer who internally reviewed the decision of the respondent at the applicant's request.
2. Therefore, as a consequence s 38 of the Charter requires that I must not act in this case in a way that is "incompatible with a human right or, making a decision, or to fail to give proper consideration to a relevant human right". In my reasons below, I have come to the conclusion that the decision which I make in this proceeding is not incompatible with the applicant's human rights nor do I fail to give consideration to human rights.

1. Section 32 is an interpretive provision. The concept and relevance of the compatibility referred to in s 32 is explained at paragraph [4730] by Pound and Evans in "An annotated guide to the Victorian Charter of Human Rights and Responsibilities". It is there stated :

The concept of 'compatibility' in s 32(1) must be assessed by reference to s 7(2). In other words, where a statutory provision in some way limits a human right but can be demonstrably justified as a reasonable limit in accordance with s 7(2), the provision will not be incompatible with the right. Conversely, a statutory provision that limits a human right in such a way that it cannot be justified under s 7(2) will be incompatible with the right. This seems consistent with the statutory scheme. Although s 7(2) does not use the terminology of 'compatibility', it would seem incongruous to contemplate that a limitation on a right could be demonstrably justifiable as a reasonable limit in a free and democratic society and yet still be labelled incompatible with the right. This is especially so when regard is had to s 38(1) which also turns upon the concept of 'compatibility'. It is not possible for an act or decision of a public authority to limit a human right in a manner that is justifiable under s 7(2) and nevertheless be found 'incompatible' and therefore unlawful under s 38(1). ....

This leads to a further question as to whether, before s 32(1) is 'engaged', it must first be determined on ordinary principles of construction that the natural and ordinary meaning of the statutory provision in question gives rise to an apparent or threshold incompatibility with the right, in the sense discussed above of a limitation that cannot be justified under s 7(2).

Whether sections 10 and/or 22 of the Charter are 'engaged'

1. As far as s 10 of the Charter is concerned, I can find no evidence to support the position that the applicant was tortured or treated or punished in a cruel, inhumane or degrading way. Further, as I have already found, there is nothing in the evidence before me to conclude that a proper inquiry was not conducted into the applicant's complaint. Even if the applicant had possession of the documents he seeks, in my view, it would not help him in any way to show that his complaint was not properly investigated or that he was treated in the way referred to in s 10 of the Charter.
2. Pound and Evans at paragraph [1340] referred to the concept of "torture" as follows :

The concept of 'torture' has been defined in terms which suggest three key elements :

(i) the international infliction of severe pain and suffering, whether physical or mental

(ii) the pain and suffering is inflicted for a prohibited purpose; and

(iii) the pain and suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.

1. Clearly, even on the applicant's own evidence of being punched to the head while being held, which I have found not to have happened, in my view, that would be insufficient to come within the meaning of torture as used in s 10.
2. However, the authorities appear to indicate that the words "cruel, inhumane or degrading treatment or punishment" involve acts which do not necessarily constitute torture. Again, the authors Pound and Evans comment on this matter at paragraph 1350. It is there stated :

There is no specific definition of what constitutes 'cruel, inhuman or degrading' treatment or punishment in either the ICCPR or the Torture Convention. Cruel or inhuman treatment or punishment involves acts, which, although they must attain a minimum level of severity, do not constitute torture. Degrading treatment or punishment also involve acts of a less severe nature, but which inflict a level of humiliation or debasement of the victim: see C v Australia (Communication No 900/1999) at [4.6]. the UN HRC and the ECtHR (in relation to Art 3 of the European Convention) have both stated that the assessment of what constitutes these types of conduct will depend upon all the circumstances of the case, including the duration and manner of the treatment, its physical or mental effects on the victim, and the age, sex and state of health of the victim.

1. Thus, on the basis of the findings that I have made, it is clear that what happened in the incident is not sufficient to engage s 10 of the Charter. In any event, the proceeding before me was not an inquiry into either the incident or the investigation that followed. That being the case, it seems to me that the documents in question would not help the applicant in any way to throw light on the incident itself or the investigation thereof.
2. Section 22 of the Charter requires that persons deprived of their liberty must be treated with "humanity and with respect for the inherent dignity of the human person".
3. Mr Knowles on behalf of the applicant, submitted that international juris prudence clearly establishes that a failure by authorities to properly investigate a prison incident where there have been serious allegations of mistreatment may amount to a breach of both sections 10 and 22 of the Charter. As permitted by s 32 of the Charter, Mr Knowles referred me to a number of international authorities which would suggest that the circumstances of this case, ie the applicant being injured, put an onus on the respondent to prove beyond reasonable doubt that the applicant's injuries did not result from a breach of either ss 10 or 22 of the Charter.
4. In particular, Mr Knowles referred me to Pruneanu v Moldova, a decision of the European Court of Human Rights (23 May 2007). That case concerned an alleged breach of article 3 of the Convention which is in similar terms to that of s 10 of the Charter. At paragraph 44-47 inclusive, the Court stated as follows :

Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v Romania, no 42066/98, s 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (Selmouni v France, & 87).

In assessing evidence, the Court has generally applied the standard of proof 'beyond reasonable doubt' (see Ireland v the United Kingdom, judgment of 18 January 1978, Series A no 25, pp.64-65, s 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumption of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v Turkey [GC], no 21986/93, s 100, ECHR 2000-VIII).

The Court recalls that where an individual make a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in ...[the] Convention', require by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v Italy [GC], no 26772/95 s 131, ECHR 2000-IV.

The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see the Assenov and Others v Bulgaria judgment cited above, s 103 et seq). They must take all reasonable steps available to them to secure the evidence concerning the incident, including inter alia, eyewitnesses testimony and forensic evidence (see, Tanrikulu v Turkey [GC], no 23763/94, ECHR 1999-IV, s 104 et seq and Gul v Turkey, no 22676/93, s 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.

According to the applicant, he was taken to the office of the village police inspector, in the Sipoteni Local Council building, and severely beaten by police officers A.U. and V.B. He was punched, kicked and beaten with a wooden baton on his body and on his head until he lost consciousness. Later he was taken by car to Calarasi police station where he was handcuffed to a radiator. After regaining consciousness he managed to open the handcuffs and escape.

The Government contested the applicant's account of events and submitted that after his arrest, he had been taken by car to the Calarasi police station. However, he jumped out of the car as it was moving and sustained injuries from the impact with the road. He later escaped from the Calarasi police station.

1. It is clear that in the Pruneanu case, the circumstances of the applicant being injured were far worse than in the present. Further, it is noted that the court did not find that the case had been made out.
2. Mr Knowles also referred me to several other authorities relating to the same point. These included Jasar v the Former Yugoslav Republic of Macedonia (15 May 2007); Barta v Hungary (10 April 2007); and Dzwonkowski v Poland (12 April 2007).
3. However, I do not believe that I need to concern myself further with these European cases, as I have come to the conclusion that there was a proper investigation carried out and, in any event, these documents would not assist the applicant even if the incident was further investigated or a clearer picture obtained than what he already has of the incident.
4. While I agree that it is not necessary that the applicant show serious injury to be able to invoke ss 10 or 22 of the Charter, but in the circumstances of this case, in my view, the facts do not warrant the engagement of those sections. Every matter must be taken on its own merits. In doing so, I have formed the view that the applicant's rights pursuant to s 10 or s 22 have not been breached.
5. In any event, it must be realised that this is not a claim for compensation or a claim directly to do with the incident but rather an application for documents pursuant to the FOI Act. That in itself makes this application entirely different from the European cases which were cited to me by Mr Knowles.

1. For the purpose of this proceeding, the applicant relies on the provision in s 15(2) which gives him the right to receive information as part of "freedom of expression".
2. In his submissions, Mr Knowles stated :

The applicant's access to the disputed documents is also supported by the right to freedom of expression, which clearly includes the right of freedom of access to information. Moreover, it is the opinion of the Attorney General for Victoria, stated in Parliament, that freedom of information falls within the ambit of that right (Statement of Compatibility for Freedom of Information Amendment Bill, Parliamentary Debates Legislative Assembly (Attorney General Mr Hulls) 22 November 2007).

In this respect, the objects of the FOI Act must be kept to the fore. These objects affirm that the Act 'creates a general right of access to information ... limited only by exceptions and exemptions necessary' to protect interests (FOI Act s 3(1)). The broadly accepted principle of interpretation is that the right of access should be construed liberally with the exceptions narrowly. (see Ryder v Booth [1985] VicRp 86; (1985) VR 869 at 877).

Disclosure of the disputed documents would have the effect of :

(a) enhancing the investigation of the incident by both the HM Prison Barwon and the respondent;

(b) ensuring the accountability and transparency of the prison system ...; and

(c) ensuring the public authorities are respecting, promoting and fulfilling human rights (as required by s 7(1)(g) of the Public Administration Act 2004 (Vic).

1. The engagement of s 15 of the Charter with respect to attaining documents under the FOI Act was considered by Bell J in Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 at paragraphs 23 ff :

As to engagement, the submissions rely on the right to freedom of expression in s 15(1) of the Charter, and specifically the right to seek and receive information and ideas of all kinds in s 15(2). It was not in this case submitted that the right to freedom expression, in its general or in those specific respects, involves an obligation on the part of the government to impart information requested, and I will consider the submissions on that basis.

I do not think Mr Smeaton's right to freedom of expression is engaged in this case. Nothing in the Freedom of Information Act or its administration limits his right to hold or express opinions or to seek, receive or impart information. Mr Smeaton is free, subject to law, to express whatever opinions he likes about the Authority and the Ombudsman in connection with his wife's case. He can seek whatever information he wishes and receive whatever information he may be given. There is no restriction imposed on Mr Smeaton's capacity to receive information which others may wish to give him.

The Freedom of Information Act creates a right to obtain access to information from government agencies (s 13), subject to specified exemptions and, among other things, the power of transfer in s 18. Section 29A of the Ombudsman Act operates to exclude information relating to complaints to the Ombudsman and other matters in the possession of the Ombudsman from the application of the Freedom of Information Act. These provisions of the Freedom of Information Act and the Ombudsman Act do not limit Mr Smeaton's human rights as specified. Moreover, while the provisions do regulate the government's capacity to provide information requested under the Freedom of Information Act, they do not limit the government's capacity to provide information independently of the scheme created by that legislation.

As Mr Smeaton's human right to freedom of expression is not engaged, no question of justification or reinterpretation of the provisions of the Freedom of Information Act arises.

1. Member Proctor of this Tribunal in McInnes v VicRoads [2009] VCAT 2324 also considered whether an application for documents under the FOI Act engaged s 15 of the Charter. After considering what Bell J had to say in Smeaton's case above, the learned member stated at paragraphs 29 ff -

The issue of whether the right to freedom of expression involves an obligation on the part of the government to impart information requested (not raised before Justice Bell in Smeaton) was raised in this proceeding. Neither counsel provided settled authority in support of the existence of such an obligation.

Counsel for VicRoads submitted that section 15(2) does not create a right to information. She said the European Court of Human Rights (ECHR) has repeatedly interpreted Article 10(2) of the ECHR (an equivalent expression of the right I am discussing) as not imposing on a State a positive obligation to collect and disseminate information of its own motion. She drew my attention to a Canadian authority which she described as providing some support for the Applicant's contention. However, it is currently on appeal to the Supreme Court of Canada.

I agree with Justice Bells' approach to the interaction of section 15 and the FOI Act and determine Mr McInnes' right to freedom of expression is not engaged in this case.

On the issue of a 'positive obligation', in my opinion it is in the FOI Act that the Victorian Parliament expresses its intention as to its obligations to release information. This can in part be seen from the objectives of the FOI Act set as at section 3. It relevantly says,

(1) The object of this Act is to extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by ...

(b) creating a general right of access to information in documentary form in the possession of ... agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

In the absence of clear language within the Charter or in the relevant second reading speech, that Parliament wished to create a new obligation on the part of the government to impart information requested, I do not agree that section 15 of the Charter should be interpreted as creating a positive obligation of VicRoads to impart information to Mr McInnes.

As I determine that Mr McInnes' human rights as expressed in the Charter are not engaged and the Charter does not create the 'positive obligation', no question of justification or reinterpretation of the provisions of the FOI Act arises.

I agree with the Member's conclusions in the last two paragraphs quoted above.

1. As a result, I find that in relation to s 15 of the Charter, it is not engaged in relation to this freedom of information proceeding.

Section 7(1)(g) Public Administration Act 2004 (Vic)

1. The applicant also relies on s 7(1)(g) of the Public Administration Act 2004 (Vic) (PA Act). Section 7(1)(g) of the PA Act reads as follows :

(g) human rights - public officials should respect and promote the human rights set out in the Charter of Human Rights and Responsibilities by -

(i) making decisions and providing advice consistent with human rights; and

(ii) actively implementing, promoting and supporting human rights.

1. I have already dealt with the position of the Tribunal in regard to whether for the purposes of this proceeding, the Tribunal is a "public authority". In my view, the same interpretation applies to the words "public officials" as used in s 7(1)(g) of the PA Act.
2. However, as I have already found that there has been no breach of the applicant's human rights in this particular instance, and there has been no breach of rights set out in the Charter, I do not need to consider this section further, save and except for whatever application it may have in relation to s 50(4) of the FOI Act, known as the public interest override.
3. Quite clearly, in making a decision, in relation to this proceeding, s 38 of the Charter requires that that decision should not be incompatible with human rights or fail to give proper consideration to the relevant human rights. It is in the context of that command by the Charter that I shall examine s 50(4) of the FOI Act.
4. I have already discussed s 50(4) of the FOI Act without reference to the Charter.
5. On coming to the conclusion that rights pursuant to the Charter have not been engaged in this particular instance, it is difficult to envisage a situation where the Charter would affect the applicant's right to receive a document or the public interest would require the release of the document, as a result of s 32 and/or s 38 of the Charter when the substantive rights given by the Charter are not engaged.
6. However, for completeness, I shall identify the way in which the applicant says that there is a strong public interest in the release of these documents. At paragraph 12 of the applicant's revised statement of public interest grounds it is stated :

As identified below the applicant submits that there is a very strong public interest in ensuring that :

(a) the proper administration of the prison system is maintained through interpreting the relevant provisions of the FOI Act compatibly with the relevant human rights contained in the Charter; and

(b) public authorities act compatibly with the obligations in section 38(1) of the Charter.

1. The applicant correctly submits that proper consideration of his rights "requires that public authorities give real and genuine consideration to human rights" (see R (Daly) v Home Secretary [2001] UKHL 26; [2001] 2 AC 532).
2. While that statement is undoubtedly correct, in coming to the decision that I have in relation to engagement, I have done what I consider to be the correct approach and in fact considered whether any of the applicant's human rights pursuant to the Charter have in fact been breached. In making that consideration, I have come to the conclusion that they were not breached.
3. The applicant has submitted not only that it is in the public interest that there be transparency as to what happens in the prison system of Victoria and, as a consequence, says that it is in the interests to have a proper inquiry as to the full circumstances of the incident (I have already dealt with that matter above).
4. Mr Knowles on behalf of the applicant also states that a proper inquiry is desirable in the public interest because of the culture in prisons of both prison staff and prisoners that there should be no "lagging". That is a colloquial term for not reporting incidents, in this case between prisoner and prisoner or prison staff and prisoner. Mr Knowles said that is something that it is highly desirable from the public point of view to have a sufficient inquiry about.
5. In finding that there has been a sufficient inquiry already in relation to the incident, and that in any event the Charter rights have not been engaged, it is difficult to see how the release of the documents in question would, in any way, assist the public in determining first whether there is a culture of "lagging" and secondly, whether such "non-lagging" have any relationship to the incident. In those circumstances, I cannot see how this culture reflects on whether or not these documents should be released.

1. In case I am wrong in my conclusion that the Charter has not been engaged by reason of sections 10, 15 and 22 of the Charter, it is desirable that I consider the question of proportionality as set out in s 7(2) of the Charter.

1. In this particular instance, the applicant alleges he has the right to receive documents as a result of the breach of the applicant's rights pursuant to sections 10, 15 and 22 of the Charter. Further, the Act confers the right on the public to access information subject to certain exceptions set out in the Act. In this particular case, the exemptions are s 38 of the FOI Act insofar as it relates to s 30 of the Corrections Act and s 31(1)(d) and (e) of the FOI Act.

1. In this particular instance, as I have previously stated, the limitation occurs through s 31(1)(d) and (e) , s 38 of the FOI Act and s 30 of the Corrections Act.
2. It is clear that the exemptions referred to in s 31(1)(d) and (e) and s 38 of the FOI Act are a limitation on giving the public a right to view documents, as there is a need to protect essential public interests (see Freedom of Information 1982 available at Victorian Parliamentary Debates, Legislative Assembly 14 October 1982, 1061).
3. It is clear to me that the s 31(1)(d) and (e) and s 38 (as related to s 30 of the Corrections Act) exemptions are for the purpose of protecting security in prisons which in turn will affect the security of the public of Victoria. Put another way, if there was not the security in the prison system, the public of Victoria would be likely to suffer. Further, in DPP v Zierk [2008] VSC 184 (30 May 2008), Chief Justice Warren made it clear that there is a strong social need for material associated with an internal police investigation to remain confidential in the interests of proper and efficient functioning of police investigation and the instrumental role of Victorian Police in upholding the rule of law.

1. The respondent has provided me with legal contentions that it used in a matter of XYZ v Victoria Police. At paragraph 55 of those submissions, it is correctly stated that -

... the Charter involves an assessment of the manner in which the law in question limits the right and extent to which the limitation restricts the enjoyment of the right. The greater the infringement of right, the more compelling the purpose must be (see S v Manamela 2000 (3) SA 1 (CC) at [32]). The limitation here is upon the applicant's access to information, which most jurisdictions have not recognised as an aspect of the freedom of expression. The applicant seeks that information for his own private purposes, rather than to give effect to any central purposes of freedom of expression, such as to engage in public debate or to contribute to the 'marketplace of ideas'.

1. In my view, that submission is clearly correct and applies to this particular proceeding.

The Relationship between the Limitation and its Purpose

1. As I have stated, the limitation in this case is by reason of s 31(1)(d) and (e) and s 38 of the FOI Act as it relates to s 30 of the Corrections Act , which has the purpose of enhancing security in relation to the prison system for its better management. This in turn increases the security and wellbeing of the law abiding public of Victoria. Thus, there is clearly a relationship between the limitation and its purpose.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

1. In the XYZ submissions that I have referred to above, at paragraph 57 it is stated :

The final factor under s 7(2) of the Charter is whether the limitation is the least restrictive means of achieving the purpose. Importantly, this is not a test of 'minimal impairment' or an inquiry as to whether some less restrictive law or regulation can be imagined. In S v Manamela the Constitutional Court of South Africa held that the least restrictive means test should not be used to limit the range of legislative choice in a particular area. O'Regan J and Cameron AJ held that -

It is clear that the question whether there are less restrictive means to achieve the government's purpose is an important part of the limitation analysis. However, it is important to realise that this is only one of the considerations relevant to that analysis. It cannot be the only consideration. It is often possible for a court to conceive of less restrictive means ... The problem of the Court is to give meaning and effect to the factor of less restrictive means without unduly narrowing the range of policy choices available to the Legislature in a specific area. The Legislature, when it chooses a particular provision, does so not only with regard to the privatisation of certain social demands and needs and the need to reconcile conflicting interest ... When a court seeks to attribute weight to the factor of 'less restrictive means' it should take care to avoid a result that annihilates the range of choices available to the Legislature unless it is satisfied that the mechanism chosen by the Legislature is incompatible with the constitution.

1. These thoughts were not dissimilar to that expressed by Hollingworth J in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 (12 September 2008). Her Honour there said at [188] -

As far as s 7(2)(e) is concerned, it is common ground that, in considering whether there is any 'less restrictive means available', there is no obligation on a public authority to choose the least intrusive means possible. Rather, the court is required to consider whether the chosen measure falls within a range of reasonable alternatives.

1. In this instance, the application of s 31(1)(d) and (e) of the FOI Act and s 30 of the Corrections Act is a measure that falls within a range of reasonable alternatives.

Conclusion in relation to s 7(2) of the Charter

1. Weighing up all the matters mandated in s 7(2) of the Charter, it is abundantly clear, in this particular instance if a human right is breached (which I have found otherwise) that that limitation on the Charter is permissible by means of the consideration referred to in s 7(2). Put another way, the restrictions imposed pursuant to s 31(1)(d) and (e) and s 38 of the FOI Act as referred to in s 30 of the Corrections Act, is demonstrably justified in these present circumstances. Therefore, even if I had found that the applicant's human rights had been breached, in the circumstances of this proceeding, I come to the conclusion that s 31(1)(d) and (e) and s 38 of the FOI Act as it relates to s 30 of the Corrections Act provides a reasonable limitation of those rights.

CONCLUSION IN RELATION TO THE PROCEEDING AS A WHOLE

1. I have found that without reference to the Charter, the documents in dispute would be exempt pursuant to s 31(1)(d) and (e) and s 38 of the FOI Act as related to s 30 of the Corrections Act. I have also found that pursuant to s 50(4) of the FOI Act, the public interest override does not apply. In interpreting the Charter in relation to the FOI Act, I have found that the provisions relied upon by the applicant are not engaged. In any event, even if they were engaged, the intrusion on the applicant's rights would be justified pursuant to s 7(2) of the Charter. Given these circumstances, I intend to order that the decision of the respondent be affirmed and that costs be reserved.