SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

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

Citation: [2018] ACTSC 322

Hearing Date: 12 April 2018

Submissions last received:

Decision Date:

14 May 2018

23 November 2018

Before: McWilliam AsJ

Decision: 1. Proceedings no. SC 248 of 2017 and no. SC 249 of 2017 are dismissed.

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

Legislation Cited: Administrative Decisions (Judicial Review) Act 1989 (ACT) Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38 Corrections Act 1986 (Vic) s 47 Corrections Management Act 2007 (ACT) ss 7, 8, 40 Human Rights Act 2004 (ACT) ss 14, 19, 27A, 28, 34, 40B, 40C Court Procedure Rules 2006 (ACT) rr 40, 102, 111, 425, 1401, 6015 Corrections Management Bill 2006 (ACT) Human Rights Bill 2003 (ACT) Corrections Management (Provision of Meals) Policy 2011 (ACT) Corrections Management (General Operating) Policy 2010 (ACT) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 28 January 1993) New Zealand Bill of Rights Act 1900 (NZ)

Cases Cited: Anufrijeva v Southwark London Borough Council: [2003] EWCA Civ 1406; [2004] QB 1124 Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 Clark v Commissioner for Corrective Services [2016] NSWCA 186 Cuming Campbell investments Pty Ltd v Collector of Imposts (Victoria) (1938) 60 CLR 741 Eastman v Besanko [2009] ACTCA 23

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Eastman v CEO, Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161 Eastman v Chief Executive, Department of Justice and Community Safety [2011] ACTSC 33 European Convention on Human Rights: R. (on the application of Douglas) v North Tyneside MBC [2004] 1 All ER 709 Flynn v The King (1949) 79 CLR 1 Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337 Haigh v Ryan [2018] VSC 474 Hoffman v South African Airways [2000] ZACC 17 2001 (1) SA 1 Horwitz v Connor (1908) 6 CLR 38 Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60 Islam v Director-General of the Justice and Community Safety Directorate [2015] ACTSC 20 K v Commissioner for Corrective Services [2017] NSWSC 311 Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 Lewis v Australian Capital Territory [2018] ACTCA 49 Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 Masoud v R; Viet Dung Tran v R [2000] FCA 435 Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70 Momcilovic v R [2011] HCA 34, 245 CLR 1 Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593; 48 VR 119 R v AM [2010] ACTSC 149; 5 ACTLR 70 R v Oakes [1986] 1 SCR 103 R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673 R (Williamson and Ors) v The Secretary of State for Education and Employment (Williamson) [2005] UKHL 15; (2005) 2 AC 246 Re application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 Rich v Howe [2017] VSC Taunoa v Attorney-General (2004) 7 HRNZ 379 Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 Weaven v Secretary to the Department of Justice [2012] VSC 582

Parties: Isa Islam (Plaintiff)

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

Representation: Counsel

Self-represented (Plaintiff)

N Tarbet (Defendant)

Solicitors

Self-represented (Plaintiff)

ACT Government Solicitor (Defendant)

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File Numbers: SC 248 of 2017; SC 249 of 2017

1. Mr Islam (the plaintiff in each proceeding) is currently a prisoner at the Alexander

Maconochie Centre (AMC). He has brought two proceedings complaining about the

conditions of his detention at the AMC, which he says have breached certain human

rights, set out in the Human Rights Act 2004 (ACT) (the Act).

2. The first proceeding concerns the system in place at the AMC for providing food to

prisoners with particular dietary needs. The plaintiff is a Muslim and does not eat

certain foods, such as processed chicken. The second proceeding concerns the AMC’s

policy in how it charges for printing education-related material, which Mr Islam alleges is

arbitrary and applied in a way discriminatory to him. At the time he commenced the

proceedings, Mr Islam was in the process of completing requirements for a PhD

qualification.

3. The Director-General of the Justice and Community Safety Directorate (Director-

General) is the defendant to each claim, as she is the head of the executive branch of

government responsible for the operations of the AMC.

Relief sought in the two claims before the Court

4. Proceedings SC 248 of 2017 were commenced by originating application on 5 July

2017 and were last amended on 23 October 2017. The relief sought is an order that the

defendant “take reasonable steps” to replace the current food ordering system with an

approved, amended system. In addition, Mr Islam makes a specific complaint about

failing to receive a vegetarian roll for lunch on 2 July 2017. On that date, he was

instead provided with a roll containing processed chicken, and his request for a

vegetarian roll in substitution was declined. He seeks a replacement vegetarian roll. It

is important to record, however, that such complaint is part of what the plaintiff alleges

is a broader failure of the system being implemented by the AMC for those who have

particular dietary requests for religious or cultural reasons. For ease of reference, I will

describe this proceeding as the ‘Food Claim’.

5. Proceedings SC 249 of 2017 were commenced by originating application on 10 July

2017 and last amended on 13 November 2017. The plaintiff seeks an order that the

defendant “take reasonable steps to replace the current inmate education printing fee-

charging system with an improved, non-arbitrary system”. For ease of reference, this

proceeding will be referred to as the ‘Printing Claim’.

6. The plaintiff asserts his complaints in respect of the Food Claim constitute breaches of

ss 14 and 19(1) of the Act. Section 14 is in the following terms:

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

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

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

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

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7. Section 19(1) is in the following terms:

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

8. With respect to the Printing Claim, the plaintiff relies upon s 27A, which provides

(emphasis added):

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

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

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

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

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

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

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

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

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

(a) the nature of the right affected;

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

(c) the nature and extent of the limitation;

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

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

11. Section 40B creates the obligation on public authorities to comply with the Act. Section

40B(1) provides:

(1) It is unlawful for a public authority—

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

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

12. A contravention of the Act can arise upon either of those alternatives, the first being a

substantive limb and the second a procedural limb. The plaintiff’s case was essentially

based upon the substantive limb of the section, although presumably because the

plaintiff was self-represented, the Director-General has given consideration to each

aspect, and the Court will do likewise.

13. A person who claims that a public authority has acted in contravention of s 40B, and is

a victim of the contravention may start a proceeding in the Supreme Court against the

public authority: ss 40C(1) and 40C(2) of the Act.

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

the Act.

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15. Section 40C does not affect other rights a person may have in relation to an act or

decision of a public authority (such as a right of judicial review), or a right a person may

otherwise have to damages apart from the section: s 40C(5) of the Act.

16. The defendant accepts she is a “public authority” to which the Act applies. The

defendant is also taken to be the Territory for the purposes of s 34(1) of the Act.

17. The Corrections Management Act 2007 (ACT) (Corrections Act) is also relevant to the

issues before the Court. The explanatory statement to the Corrections Management Bill

2006 (ACT) (pp 2, 7) confirms that the Corrections Act was drafted on the basis that its

provisions formed reasonable limitations on a detainee’s human rights under the Act:

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

ACTSC 20 (Islam No. 1) at [75] per Mossop M (as his Honour then was).

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

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

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

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

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

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

19. Section 8 of the Corrections Act concerns the management of correctional services. It is

in mandatory terms (emphasis added):

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

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

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

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

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

20. The Director-General may make corrections policies and operating procedures,

consistent with the Corrections Act, to facilitate the effective and efficient management

of correctional services: s 14 of the Corrections Act.

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

terms (emphasis added):

Food and drink

(1) The director-general must ensure that—

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

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

(c) clean drinking water is provided to meet the needs of detainees.

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

22. The remainder of that section deals with medically prescribed diets, the exclusion of

food and drink from disciplinary measures later in the Corrections Act (because it is an

entitlement, not a privilege), and specific matters that may be covered in corrections

policies and operating procedures, such as nutritional standards.

Applicable principles – whether judicial review principles influence the Act

23. It is first necessary to consider the general approach for which the Director-General

contends, before considering the specific rights in question for the Food Claim and the

Printing Claim.

24. It has long been established that on judicial review, it is generally not for the Courts to

interfere with the management and control of prisoners: K v Commissioner for

Corrective Services [2017] NSWSC 311 at [31] per Latham J, citing Kelleher v

Commissioner, Department of Corrective Services [1999] NSWSC 86 at [39]; Clark v

Commissioner for Corrective Services [2016] NSWCA 186 (Clark) at [86] per Emmett

AJA; Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337 at [35].

25. Broadly to similar effect is Masoud v R; Viet Dung Tran v R [2000] FCA 435, a case on

which the Director-General relied, where Miles CJ stated, at [14], that the laws of the

Territory concerning prisoners in custody, and the lawful functioning of the institutions

charged with the responsibility of implementing those laws, deserve respect.

26. The Director-General also relied upon Eastman v Besanko [2009] ACTCA 23 (Eastman

v Besanko) at [5], to the effect that judicial intervention in the treatment of prisoners

under sentence in a prison is a serious step, with the potential for security and safety

issues to arise. It is not an area in which courts have any real expertise or experience.

27. These authorities are all consistent with earlier authorities stating that it is important that

the responsibility for regulating the procedures of a gaol is not transferred to the courts

administering justice: Horwitz v Connor (1908) 6 CLR 38 cited with approval in Flynn v

The King (1949) 79 CLR 1 (Flynn) at 8.

28. The Director-General submitted that the power to grant relief under s 40C(4) of the Act

must be read in the context of those authorities, which limit the intervention of courts in

the daily management of correctional facilities. However, such broad notions of

restraint derive from applications seeking judicial review, including review under the

Administrative Decisions (Judicial Review) Act 1989 (ACT).

29. The principles and their continuing application have been applied in this jurisdiction,

including in relation to the same parties in an earlier decision: Islam v Director-General,

Justice and Community Safety Directorate [2015] ACTCA 60 (Islam No. 2) at [38] and

[39] per Walsmley AJ. His Honour was there considering the inherent supervisory

jurisdiction of the Court, and the power to ensure that the administration of justice is not

unduly impeded by the way a prisoner is being detained.

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30. The claims that are presently before the Court do not seek to invoke the Court’s

supervisory jurisdiction. Here, each claim is brought in the context of a statutory regime

that includes a specific human rights statute, and the Corrections Act, which expressly

implements the rights articulated in the Act, as can be seen from the extracted sections

above. The Act, through ss 40B and 40C, creates stand-alone rights independent of

judicial review, although some of the available remedies will be the same. The rights

under the Act are not read subject to, or in the context of, principles applying to the

Court’s power on judicial review. Ordinary principles of statutory construction apply.

31. Thus, in Miles v Director-General of the Justice and Community Safety Directorate

[2016] ACTSC 70, Burns J acknowledged the statement in Eastman v Besanko at [5] as

to the Court’s hesitation to interfere with the administration of the AMC, before stating at

[35] (emphasis added):

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

32. In any event, in Clark, Basten JA referred to Flynn and went on to state at [7]-[11]

(references omitted and emphasis added):

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

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

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

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

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

33. I respectfully agree with the point being made in the above passage, namely that the

law concerning prison regulation has developed significantly and that careful attention

must be paid to the statutory regime in question.

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34. Moreover, in the Territory, a careful analysis of the statutory regime means that the

Court must focus upon both the statutory rights in the Act and the Corrections Act, in

assessing whether the Act has been contravened. There is nothing in the statutory

regime which suggests a general principle that a Court’s intervention in cases of human

rights in prisons should be limited. As discussed below (at [59]), the opposite appears

true, in that the particular vulnerability of prisoners is recognised in the Act as being

specifically worthy of protection. The prison context is of course relevant, but it features

as part of the factual matrix by which the conduct is assessed under the Act.

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

35. It is helpful to start with some general principles before giving specific attention to the

individual rights giving rise to the plaintiff’s complaints.

36. The rights set out in the Act are “primarily” drawn from the International Covenant on

Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171

(entered into force 28 January 1993) (ICCPR): Explanatory Statement to the Human

Rights Bill 2003 (ACT) at 3; Re application for Bail by Islam [2010] ACTSC 147; 4

ACTLR 235 at [18] per Penfold J; and most recently, Lewis v Australian Capital Territory

[2018] ACTSC 19; 329 FLR 267 at [446] and [449] per Refshauge J. (Although that

judgment is currently the subject of an appeal, the grounds do not touch upon this

aspect of the context to the Act: see Lewis v Australian Capital Territory [2018] ACTCA

49.)

37. It is trite that the protection of human rights crosses boundaries, and other jurisdictions

have sought to implement the ICCPR in various ways, including the state of Victoria and

overseas jurisdictions such as Canada, South Africa and New Zealand. As will be seen

from the consideration below, the task of interpreting and applying the Act may be

assisted by reference to the judgments of international and foreign domestic courts

which have logical or analogical relevance to the interpretation of a statutory provision,

with due caution exercised for the particular statutory and constitutional framework in

the jurisdiction and any variations in the words used of the sections under

consideration: Momcilovic v R [2011] HCA 34, 245 CLR 1 (Momcilovic) at [18] per

French CJ; at [146] per Gummow J.

38. The human rights protections under the Act are engaged when legislation is enacted to

limit such right, with ‘limit’ being understood simply as a burden on the right, without

reference to whether the burden is reasonable or proportionate: see, by analogy,

Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families

and Children [2016] VSC 796; 51 VR 473 (Certain Children v Minister for Families), at

[143] (and the authority there-cited), a Victorian case discussed further below at [59] of these

reasons.

39. In interpreting each right, the Court construes it in “the broadest possible way”: Certain

Children v Minister for Families at [143] and the authorities there-cited.

40. Where a conclusion is reached that the legislation in question does limit one or more

human rights, it is then necessary to determine whether any such limitation is

reasonable: s 28 of the Act.

41. Section 28 acknowledges that the human rights under the Act are not absolute or

always completely consistent with each other. It produces a conclusion that where a

law limits a human right under the Act, the Act permits the right to be reduced in a case

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where the limitation is justified or reasonable. In this way, following such adjustment,

the human right under the Act is rendered compatible with the limit, and therefore

lawful: Momcilovic at [572] per Crennan and Kiefel JJ; at [684] per Bell J.

42. If the limitation is not reasonable, then the conduct in question will be incompatible with

the relevant human right under the Act. Various considerations for reasonableness

under s 28 of the Act invoke what is known as the proportionality test: Momcilovic at

[22] and [34] per French CJ, [432] per Heydon J, [555]-[557] per Crennan and Kiefel JJ.

The High Court was there considering s 7(2) of the Charter of Human Rights and

Responsibilities Act 2006 (Vic) (Victorian Charter), which is in substantially the same

terms as s 28 of the Act.

43. The Victorian authorities such as Certain Children v Minister for Families at [208], and in

Rich v Howe [2017] VSC 483 at [161], have assessed proportionality by reference to

three important components, set out in R v Oakes [1986] 1 SCR 103, 43, which was

dealing with a similar provision in the Canadian Charter of Rights and Freedoms (1982)

(Canadian Charter). Those three components are broadly summarised as follows:

(a) First, the measures adopted must be carefully designed to achieve the

objective in question. They must not be arbitrary, unfair or based on irrational

considerations.

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

to achieve the objective.

(c) Third, there must be a proportionality between the effects of the measures

which are responsible for limiting the right or freedom under the Act, and the

objective identified.

44. However, in Momcilovic at [552], Crennan and Kiefel JJ noted the different terminology

between the Victorian Charter and the Canadian Charter, in that it did not speak of a

requirement that the right of freedom be impaired “as little as possible”. Similarly, s 28

of the Act does not include such language. Their Honours said (at [553]) of the

provisions of s 7(2) of the Victorian Charter:

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

45. For the present claims under consideration, it is sufficient to appreciate that

proportionality is part of the assessment of reasonableness under s 28 of the Act.

Section 14 of the Act: the right to food consistent with respecting a prisoner’s

religious beliefs.

46. Religious belief is intensely personal and can easily vary from one individual to another:

R v AM [2010] ACTSC 149; 5 ACTLR 70 at [42] per Refshauge J, citing R (Williamson

and Ors) v The Secretary of State for Education and Employment (Williamson) [2005]

UKHL 15; (2005) 2 AC 246 at [22].

47. It is unnecessary to discuss principles relevant to that question further, as the Director-

General did not dispute that Mr Islam was a Muslim adhering to the religion of Islam,

nor that his refusal to eat a roll containing processed chicken was based on anything

other than his religious convictions.

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48. Whether the statutory obligation under s 14 of the Act and s 40(2) of the Corrections Act

has been fulfilled is a question of fact and degree, to be assessed in all the

circumstances: Eastman v Chief Executive, Department of Justice and Community

Safety [2011] ACTSC 33 at [71]; Islam No. 1 at [86]. Islam No. 1 involved the same

parties but dealt with a different complaint about an asserted lack of an employment

opportunity.

49. In Weaven v Secretary to the Department of Justice [2012] VSC 582 (Weaven), a

prisoner complained (among other things) that he had been denied the provision of food

which was yeast free, a dietary requirement necessary for medical reasons. The case

concerned the Victorian Charter and s 47 of the Corrections Act 1986 (Vic), but it is of

assistance in this jurisdiction because that statutory regime produces the same

legislative result to that in the Territory, in that prisoners are entitled to food that is

necessary (among other things) for medical reasons or on account of their religious

beliefs.

50. The plaintiff in Weaven believed that coupled with the failure to provide him with

appropriate food, there had been a lack of bona fides on the part of prison staff, and in

particular, the kitchen and unit staff with whom the plaintiff dealt. The plaintiff believed

they were dismissive of his needs.

51. Macauley J accepted (at [4]-[7]) the concession of the Secretary (being the defendant in

the case) that s 47 of the Corrections Act 1986 in Victoria imposed a duty upon those

responsible for administering the prison to provide for prisoners to enjoy the rights they

possessed under that statute to have special dietary food, either for medical reasons or

on account of religious beliefs.

52. However, by the time the proceedings were heard, an effective system had been

implemented for the delivery of food according to the prisoner’s dietary requirements:

Weaven at [24]. His Honour well understood that the improvement in the prisoner’s

situation appeared to have coincided with the instigation of proceedings (at [32]), but as

there was in place a system that was currently meeting the prisoner’s needs, his

Honour did not make any order in the nature of mandamus. His Honour expressly

declined (at [38]) to make findings on the past conduct.

53. In the course of his Honour’s reasons, Macauley J accepted (at [33]) that in any system

responsible for delivering high volumes of food for many residents, mistakes can occur,

and ultimately found that the Secretary was not currently refusing to discharge her duty

to the prisoner.

54. In Islam No. 1 at [91], Mossop M stated that the overall management of the prison

involves a complex set of considerations and must be considered in the light of the

many other demands on the staff and resources of the AMC necessary to keep it

running efficiently.

55. Drawing from these cases, it can be seen that not every failure or inadequacy will result

in a finding that a public authority has contravened a person’s human rights. A number

of factors will feed into the evaluative judgment of the Court. The circumstances of the

case will dictate what those factors are.

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

dignity of the person

56. Section 19 creates a positive duty on public authorities concerning those who are in

prison: see Taunoa v Attorney-General (2004) 7 HRNZ 379 (Taunoa) at [273] per

Ronald Young J. His Honour was there considering s 23(5) of the New Zealand Bill of

Rights Act 1900 (NZ). It is in almost identical terms to s 19(1) of the Act. It provides:

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

57. The duty is to treat prisoners, among other things, with humanity. That is, treatment as

befits a human being with compassion: Taunoa at [275]. That explanation is consistent

with the ordinary meaning of humanity and applies equally to s 19(1) of the Act.

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

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

59. Speaking of that provision in Certain Children v Minister for Families, Garde J stated at

[172]-[173]:

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

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

60. His Honour also referred to General Comment No 21 on Article 10, UN Human Rights

Committee, (Humane Treatment of Persons Deprived of Their Liberty) 44th sess. UN

Doc HRI/GEN/1/Rev.1 (10 April 1992) [4]. It states:

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

61. Garde J then set out in part (at [174]) the UN Standard Minimum Rules for the

Treatment of Prisoners (the Nelson Mandela Rules), GA Res 70/175, UN GAOR,

70th sess, 80th pln mtg, Agenda Item 106, UN Doc A/RES/70/175 (17 December 2015)

annex, which include:

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

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

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

63. Similarly, in Eastman v CEO, Department of Justice and Community Safety [2010]

ACTSC 4; 4 ACTLR 161 at [86], Refshauge J referred at to the positive obligation on

the State to “…ensure that a person is detained in conditions which are compatible with

respect for their human dignity, that the manner and method of the execution of the

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measure do not subject him to distress or hardship of an intensity exceeding the

unavoidable level of suffering inherent in detention and that, given the practical

demands of imprisonment, his health and wellbeing are adequately secured” (citing

Enea v Italy [2009] ECHR 74912/01 at [57]).

64. These authorities indicate that, accepting that the prison context will necessarily curtail

a prisoner’s human rights, a public authority must ensure that additional hardship or

separate impingement on such rights does not arise that is unrelated to the deprivation

of liberty.

65. Explaining that principle in the context of food given to prisoners, there are limits arising

from their deprivation of liberty. For example, a home-delivered pizza is unlikely to be

an option for a prisoner at the AMC. However, the choice to be vegetarian for religious

reasons is an option that is not limited by the fact that the prisoner has been deprived of

liberty (as recognised in s 40(2) of the Corrections Act). As such, a prisoner should be

able to access vegetarian food on a daily basis.

66. Having said that, the impugned conduct must have some severity for it to amount to a

violation of a right to be treated with humanity and inherent dignity: Haigh v Ryan [2018]

VSC 474 (Haigh) per Ginnane J at [86]. In Haigh, the Supreme Court of Victoria had to

decide whether the withholding of four tarot cards from being kept in a prisoner’s cell

engaged or curtailed a prisoner’s rights to be treated with humanity. Ginnane J was not

persuaded that the equivalent right in the Charter was engaged (although his Honour

had earlier found that the decision to withhold the cards was unlawful because there

was no evidence that the decision-maker had given any consideration to the prisoner’s

human rights).

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

67. As submitted by the Director-General, the right to access education has been

recognised as extending to tertiary education in the context of the European Convention

on Human Rights: R. (on the application of Douglas) v North Tyneside MBC [2004] 1 All

ER 709.

68. The Director-General appeared to then submit that while the words ‘further education’

could encompass tertiary education, they might not encompass higher level tertiary

education, such as the completion of a masters or PhD program. If that was the

submission, I see no reason to construe the term in a narrow fashion. On the contrary,

consistent with Certain Children v Minister for Families at [143], the term should be

construed broadly.

69. International charters of human rights in Canada, New Zealand and South Africa, and

the Victorian Charter, do not include a separate right concerning access to further

education (although freedom from discrimination generally relevantly covers the right

confirmed in s 27A of the Act). The principles in the foregoing discussion logically have

the same application to s 27A of the Act. In order for any limits to be reasonable or

justified and thus compatible, any limit on the right must be proportionate, taking

account of the considerations in s 28 of the Act. This is further reinforced by the

express limit contained in s 27A(3), which confines the right to freedom from

discrimination in accessing further education.

13

Nature of the relief available

70. If a contravention of the Act is established, s 40C of the Act provides that remedies are

discretionary, in that they may be crafted as the Court considers appropriate, save for

awarding damages.

71. As the Act is directed to protecting human rights, where an infringement of an

individual’s human rights has occurred, the concern will usually be to bring the

infringement to an end: Anufrijeva v Southwark London Borough Council: [2003] EWCA

Civ 1406; [2004] QB 1124 at [52]-[53]; R (Greenfield) v Secretary of State for the Home

Department [2005] UKHL 14; [2005] 1 WLR 673 at [93]. That principle has been

applied in the United Kingdom even though damages or compensation are available

remedies for a contravention of human rights in that jurisdiction.

72. The finding itself is often an important part of the remedy, by way of vindication, with

that word used in the sense of defending against encroachment or interference: see the

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

SC) at [253] per Blanchard J.

73. The determination of appropriate relief requires a balancing process guided by four

objectives: first, addressing the wrong occasioned by the contravention of the Act;

second, deterring future violations; third, making an order that can be complied with;

and fourth, ensuring fairness to all those who might be affected by the relief: Taunoa SC

at [254], citing Hoffman v South African Airways [2000] ZACC 17 2001 (1) SA 1 at [45]

per Ngcobo J.

74. In Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593; 48

VR 119, McDonald J considered s 47(1)(c) of the Corrections Act 1986 (Vic), which

provides that every prisoner has:

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

75. The terms echo s 14 of the Act and s 40(2) of the Corrections Act. McDonald J stated

at [9]:

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

76. This is consistent with the principle that when granting a remedy in the nature of

mandamus the Court has the power to compel the performance of a statutory duty, but

not to direct how it is to be discharged: Cuming Campbell Investments Pty Ltd v

Collector of Imposts (Victoria) (1938) 60 CLR 741, 749 per Latham CJ. That principle

is relevant to the relief sought by Mr Islam if he establishes a contravention of ss 14, 19

or 27A of the Act.

Evidence in respect of the Food Claim

77. Three witnesses gave evidence in the proceedings: Mr Michael Wilding, Manager of

Food Services at the AMC since May 2008, Mr Islam, and Mr Christopher Miles, a

fellow detainee at the AMC.

14

Evidence of Mr Wilding

78. Mr Wilding’s affidavit evidence dealt with the catering system at the AMC, including

putting the Corrections Management (Provision of Meals) Policy 2011 (Meals Policy)

into evidence. The Meals Policy includes the following:

Principles

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

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

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

…

Special diets

Vegetarian…

Religious

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

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

79. Mr Wilding’s evidence was that the detainees (including sentenced prisoners and those

remanded in custody awaiting trial) are provided with a breakfast, lunch and dinner

meal. The lunch and dinner meals are prepared in accordance with a two-week cyclic

menu, which changes approximately every three months. The breakfast pack consists

of cereal, bread, condiments, fruit, and tea or coffee and is delivered in the evening for

the next morning.

80. The lunchtime meal is a sandwich roll. The roll will have a different filling each day. Mr

Wilding deposed to the provision of a vegetarian sandwich to those detainees who, for

religious reasons, do not eat ham or pork products. Similarly, where the lunch menu

provides for a sandwich containing chicken or beef, a vegetarian sandwich is provided

to those detainees who, for religious reasons, do not eat chicken or beef products.

81. For the dinnertime meal, detainees are able to choose one type of meal from two

options provided in the two-week cyclic menu. The dinner menu always provides one

meat option and one vegetarian option. The detainees must fill out the meal order form

in advance. An extra number of each choice of dinner is prepared daily in case

additional meals are required, for example if there have been new admissions in the

afternoon.

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

83. If a detainee does not submit or only partially completes a meal order form, the default

meal selection provided to the detainee is the meat option, unless the detainee has a

pre-approved and registered special diet.

15

84. The lunches and dinner meals are distributed to detainees in each cell block by “dixies”,

described by Mr Wilding as detainees who are employed to provide assistance to the

catering unit at the AMC. The term appears to derive from military slang, when cooks in

the army referred to doing the dishes as ‘dixie bashing’. They are supervised by a

corrections officer.

85. In addition to the provision of three meals, detainees are able to purchase a range of

food items from weekly grocery buy-ups. From the buy-up list in evidence, these items

include 2-minute noodles, rice, muesli bars, tinned vegetables, crisps, chocolate and

biscuits. Separate to Mr Wilding’s evidence, there was an account in evidence as to

money held in trust for Mr Islam, which was said to be relevant to Mr Islam’s ability to

purchase food from such a list.

Special diets

86. Where a detainee requires a special diet, Mr Wilding’s evidence was that they had to fill

out a “Special Diet Request” form and email the form to the AMC kitchen. The AMC

kitchen will then provide the form to the Corrections Health unit of the AMC for review,

to ensure that the change does not affect the adequacy of the detainee’s nutrition. If

Corrections Health approve that request, it will be actioned by the diet change being

entered onto the particular detainee’s file, and entered into the catering department’s

“Special Diets Register”.

87. The purpose of such a register is to ensure that when meals are being prepared for

detainees in a specific accommodation area, the staff can easily calculate how many

regular menu items are required and how “special diet’” items need to be provided to a

particular area in the AMC.

88. Mr Wilding deposes to the prison numbers as at 14 December 2017 as being 350

detainees and of these, 168 had registered as having special diets.

89. Mr Wilding deposes to the following:

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

90. Of the special diet requests, as at 14 December 2017, 18 detainees at the AMC had

indicated that they are Muslim and have a special diet entered in the Register. The only

special diet request registered for these detainees is that they are to receive “no pork

products”. Aside from pork products, all other meat that is served by the AMC kitchen is

halal certified, meaning certified as being prepared in accordance with the Islamic

dietary laws and that certification has been provided by the Australian Federation of

Islamic Council Inc. Mr Wilding also gave evidence of the suppliers of meat to the AMC,

and provided the certifications from those suppliers. The effect of the evidence was that

all chicken products, including chicken luncheon meet that is used on the lunch rolls, is

halal certified.

Dealing with complaints or issues

91. If a detainee receives a meal that does not comply with his or her religious dietary

requirements (registered in the manner described above), the detainee is able to raise

the issue with a corrections officer or with Corrections Health and a replacement meal

may be obtained from the AMC kitchen.

16

92. There are two other means of detainees dealing with issues in the AMC. One is

through raising an issue with the “Detainee Delegate”. This is someone who is paid to

act as a liaison between detainees and corrections officers. The detainee can ask a

Detainee Delegate to speak to a corrections officer to resolve an issue.

93. The second means is through submitting an internal request form (informally known as

a “bluey”) if a detainee wishes to complain to a Senior Corrections Officer about an

issue.

Mr Islam’s dietary requirements

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

Assessment Date: 2 Sep 2014

Assessment Type: Special Diet

Assessment result: Yes

Comments: halal – no pork + no seafood

95. Mr Wilding was unable to provide direct evidence of what occurred on 2 July 2017 as he

was not working at the AMC catering department that day. At best, he states there was

no record of a phone call to the AMC kitchen on that day or about a complaint made by

Mr Islam.

96. He does not recall receiving previous complaints made by Mr Islam in relation to the

food he has received at the AMC and confirmed that as at December 2017, Mr Islam

had not filled out a request form to change his diet.

Evidence of Mr Islam

97. Mr Islam gave evidence under oath as to what he had experienced, while incarcerated.

His experience of the food ordering system was that it was inadequate. He has

observed continual complaints made by detainees about the system. His estimation

was that over the years he had witnessed more than 100 complaints. However, as the

majority of the complaints are verbal, there is no record.

98. He says he understands there is a bureaucracy and there are limitations on what the

AMC can provide, but he has, at the time of evidence, been incarcerated for eight and a

half years and he had no knowledge of any “Special Diet Request” form prior to

commencing these proceedings and reading the affidavit evidence of Mr Wilding. Up

until the point where he commenced proceedings, he was regularly experiencing

problems with not receiving appropriate meal choices. Since he has commenced these

proceedings, he has not experienced a problem, which he says is why he has not yet

attended to filling out the form, now that he has been made aware of it.

99. Mr Islam stated that he had just completed the requirements for a PhD in Islamic

studies at Charles Sturt University. His personal beliefs as to what is appropriate have

been partly informed by those studies and in particular, he considers himself well placed

to have an understanding of what is halal (permissible) and haram (forbidden) food. His

belief system means that he does not eat processed chicken and processed meats

such as devon. He has not been eating these types of food for so long that a certificate

from a supplier makes no difference to him.

17

100. Mr Islam tendered evidence of the present meal order form. He says there is no place

on that form to request a special lunch roll for lunch. Admittedly, this form was for

choosing dinner options, but Mr Islam said that he had seen prisoners writing their

dietary requests for lunch on that form, and he followed that practice.

101. Mr Islam did not see why a small amendment could not be made to the current order

form at the bottom to simply notify those in custody at the AMC of the system that is in

place. He suggested that the current form could simply be amended to include the

words: “If detainees have special diet requirements, please ask for a special diet

request form from the corrections officer”.

102. Mr Islam gave evidence as to what he normally does if the kitchen does not allocate the

appropriate food to him. He takes the lunch roll to an officer and the officer will swap

over the lunch. He said that is generally not an issue.

103. On 3 July 2017, when Mr Islam was given the roll containing processed chicken, he

asked a Corrections Officer to swap it. She agreed, but by 3pm Mr Islam still had not

received the substitute lunch roll. He followed it up with the same Corrections Officer,

who said she would look into the issue. The next day, she told Mr Islam that there was

a problem and that the kitchen had refused to swap the roll. She attempted to hand

back the roll from the day before.

104. Mr Islam then drew attention to the order form and his handwriting that said “no

chicken”. At that point he was told, “you’re not supposed to write in the margins”. What

he was not told was anything about filling out a “Special Diet Request” form.

105. Mr Islam then completed the internal request form, a ‘bluey’, in relation to the issue.

This did not result in the provision of a vegetarian roll, and that is what ultimately

brought the parties to Court.

Evidence of Mr Miles

106. Mr Islam led evidence from Mr Christopher Miles, a fellow sentenced prisoner who was

employed as a ‘dixie’ at the AMC. He stated that he had a cart with a number of big

barrels and a variety of food in each barrel. For lunch it was sandwiches, fruit, cereal,

and bread packs etcetera. At night time for dinner it was hot meals, milk, and dessert

every second night. As part of his duties, he had responsibility for counting the food,

working out who was Muslim, who was vegetarian, and then going from cell to cell

dishing out all the food.

107. He therefore had direct experience through his observations and talking to prisoners of

how the food delivering system was being implemented and how successful it was.

108. Mr Miles had been incarcerated since November 2011. In all that time, he too was

unaware of any “Special Diet Request” form that had to be filled out. He said he was

aware of roughly 30 people who had made verbal or written complaints about the food

ordering system, but he was unaware of how any complaints had been addressed by

staff at the AMC. Mr Miles said that he had observed the corrective services officers

sometimes did not know who has particular diets. He had sometimes tried to assist by

saying to the corrections officers:

I think he’s probably a Muslim. So he wouldn’t eat pork. So at the end of the day he can’t eat this roll… [You] need to do something about this because he can’t eat it.

18

109. Mr Miles says that on those occasions the corrections officers will try and swap the roll

with somebody else’s vegetarian roll, or if the barrel is full of, for example, ham

sandwiches, he will give the prisoner two bags of cereal.

Findings in relation to the freedom to practise religious beliefs at the AMC

110. I accept the evidence of all three witnesses as credible evidence.

111. The only limit that s 40(2) of the Corrections Act places on the right to freedom of

religion encapsulated in s 14 of the Act is that allowance must be made for provision of

appropriate food and drink “as far as practicable”.

112. Such a limit is justified, having regard to the considerations in s 28 of the Act. It

appears to be a minimal restriction on the provision of food and drink in prison that

accommodates the religious beliefs and practices of individuals while they are detained.

The purpose of the limitation is simply to acknowledge that there may be operational

barriers to absolute compliance with allowing a person who is incarcerated to observe

their beliefs, such as the timing of the provision of food, or practical barriers, such as

human error.

113. Compliance with s 40(2) of the Corrections Act is then achieved through an express

policy in place at the AMC. It aims to accommodate the religious, spiritual and cultural

needs of detainees in relation to the provision of food and drink. The Meals Policy

places a further limit, through a system of formal written notification or request for

change in diet, medical approval, and then implementation by the kitchen staff at the

AMC.

114. Such a system is consistent with s 40(2) of the Corrections Act and the words “as far as

practicable”, having regard to the operational requirements of the prison, catering for

large numbers of people and the demands on the staff and resources of the AMC

necessary to keep it running efficiently. Given the logistics of catering three times a day

for at least 350 detainees, the AMC must have a formal process for identifying people

with special dietary considerations for accepted reasons. The creation of a formal filter

which results in a proper record of a prisoner’s dietary requirements is a proportionate

response, providing flexibility while preventing prisoners from simply demanding ‘no

tomato’ on an order form (a point made by Mr Islam), or asserting a particular diet if the

menu for any particular two-week cycle appears unattractive to an individual.

115. It is one thing to have a system; it is another thing to implement it. There was no

suggestion by Mr Islam that detainees were not being provided daily with food sufficient

for their nourishment and nutrition generally. The complaint is about those with special

dietary requirements, noting that the evidence as to the treatment of other detainees

was led in support of the claim as it relates to Mr Islam. He is the alleged ‘victim’ under

s 40C of the Act. He does not bring this claim on behalf of other detainees, although

the Court’s findings with respect to his complaint may have wider implications.

116. The evidence establishes that attention has been paid to the halal certification of meat

products. The AMC kitchen staff preparing the meals do, by and large, ensure that they

meet the known special dietary requirements of those who are detained on any given

day. That does not mean that the system is perfect. Plainly, it is not. There are

circumstances where detainees do not receive food that is consistent with their dietary

requirements, based on religious belief or otherwise.

19

117. However, on those occasions, the staff at the AMC do appear to attempt to remedy

mistakes drawn to their attention as far as practicable, save as to refusing to

accommodate Mr Islam’s formal request by way of the ‘bluey’ for a replacement

vegetarian roll, which I will deal with separately below.

118. The manager said a prisoner could request to swap a lunch meal, the ‘dixie’ confirmed

that corrections officers had attempted to swap rolls when notified of an issue, and Mr

Islam said that he could normally get a roll that was appropriate for him to eat. Given

the lack of a registered special diet recording no processed chicken, that fact (to my

mind) confirms the position that the AMC kitchen do genuinely accommodate certain

requirements arising from personal religious beliefs “as far as practicable”. Some

allowance must be made for mistakes and oversights. In short, the AMC staff are

generally willing, and the system is reasonably able, to ensure the protection of a

prisoner’s right to practise his or her religion through adherence to a certain diet.

Overall, I find that the system, as implemented, is reasonably effective.

119. Nevertheless, there is room for improvement of the current system for the provision of

food. For example, although the full detail of what occurred was not before the Court, it

is concerning that a prisoner who is identified as being unable to eat the ham sandwich

for lunch on any given day must, on occasion, go without and is given cereal instead.

120. Further, while the number of detainees registered as having special diets indicates that

the AMC has notified prisoners to some level about the procedures to be followed in

order to ensure that they receive food appropriate to their individual beliefs or dietary

requirements, there were at least two prisoners, being Mr Islam and Mr Miles, who had

no knowledge of the existence of a form, despite having been each incarcerated for

many years. There are clearly others who were unaware of the process, because Mr

Islam had learned what to do informally by watching other sentenced prisoners

following what appears to have been a partly effective, albeit incorrect, procedure of

writing special dietary requirements in the margins of a form.

121. That is an indication that better communication with all detainees may be warranted as

to the proper process to follow. Mr Islam’s suggestion of a note on the bottom of the

two-week meal order form does not appear to be unreasonable, and it would assist in

leaving the detainees in no doubt as to what the process was, including those who had

only recently been detained, who had altered their religious beliefs while incarcerated,

or who had simply forgotten the process. Following the hearing, the Director-General

submitted that there was an intention to introduce an amendment to the meal order

form, and even went as far as to indicate a form of wording.

122. However, the Court does not direct how a statutory duty is to be discharged, as stated

at [76] above. In any event, the fact that a system can be improved and that the

Director-General undertakes to improve the system does not mean that the current

system being implemented falls short of discharging the statutory duty in s 40(1) of the

Corrections Act, which I have found is consistent with s 14 of the Act.

123. Having found that there is a justifiable limit upon Mr Islam’s human rights, and that there

is a reasonably effective policy in place, there are a number of reasons why, on the

evidence before the Court, the instances of non-compliance in the system were not of

such a degree as to amount to a contravention of Mr Islam’s human rights to practise

his religion through adherence to a particular diet.

20

124. Dealing first with the general evidence of complaints, I accept that there have been

numerous complaints over the years, as observed by Mr Islam and Mr Miles. This

primarily supported the credibility of Mr Islam’s complaints, but ultimately that was not

challenged.

125. The numerous verbal complaints may also have been relevant to establishing that

implementation of the Meals Policy was failing, such that Mr Islam’s human rights were

being affected. However, the evidence was not of sufficient detail to demonstrate that

those who were complaining about the provision of food not ordered were also those

who had special dietary requirements for reasons protected by the Act. That is, there

was no connection between the number of verbal complaints made and the human

rights under the Act.

126. Even if it were assumed that a number of the complaints arose from a failure to provide

food in accordance with a religious belief, it cannot be inferred that any such failure was

attributable to those managing the provision of food at the AMC. It is unknown whether

those prisoners who verbally complained had registered their special dietary

requirements through the established process, which I have found to be justifiable in

light of the resources and operational requirements at the AMC. The AMC kitchen

cannot be expected to make allowances for food and drink consistent with a prisoner’s

religious beliefs if it does not know about such beliefs.

127. As to the specific issue arising on 2 July 2017, what has happened is that, through a

lack of understanding, arising in part from a lack of communication as to appropriate

processes, there is currently no formal record of Mr Islam’s adherence to the religion of

Islam by refraining from eating processed chicken, and other processed meats such as

devon. Mr Islam has managed to get by informally, but on 2 July 2017, the AMC kitchen

was either unwilling or unable to provide an appropriate lunch meal and Mr Islam went

without the provided lunch on that day.

128. However, as Mr Islam had not formally indicated (and by that I mean through the

established process) that this diet is how he practises his belief, it is not the case that

the Director-General, through the management of the AMC, has refused to

accommodate Mr Islam practising his religion. Rather, the evidence establishes that the

AMC kitchen treated Mr Islam as a Muslim who was able to eat all meat (excluding pork

and seafood) certified as halal. This was an isolated occurrence, and did not amount to

a breach of Mr Islam’s human rights.

129. It is unfortunate that the catalyst for this entire proceedings was the lack of an

explanation at that point as to the procedure for registering a diet without processed

chicken, as distinct from a more generic Muslim categorisation on Mr Islam’s file,

combined with the refusal to supply a vegetarian lunch roll notwithstanding that a form

registering that specific fact on Mr Islam’s file had not been completed. It was only after

this proceeding was commenced that Mr Islam was provided with a roll on 14 August

2017, to replace the one he did not receive.

130. To the extent that there needs to be an amendment to the electronic record to reflect Mr

Islam’s current practice, that matter lies in Mr Islam’s hands to fill out the form for

approval, now that he knows it exists, noting the authorities above (at [46] of these

reasons) as to the personal nature of an individual’s religious beliefs and practice, and

that no issue was taken in these proceedings that Mr Islam’s dietary choice for religious

reasons was disingenuous or in any way unreasonable.

21

131. For these reasons, the complaint in relation to a breach of s 14 of the Act is not made

out.

Findings in relation to humane treatment

132. My findings in relation to s 14 of the Act apply equally to the separate complaint under s

19(1) of the Act. The system being implemented does not contravene Mr Islam’s right to

be treated humanely and with respect for his inherent dignity while deprived of his

liberty. The restraints imposed through the Meals Policy are connected with that

deprivation of liberty, namely the fact that there are many detainees, a variety of dietary

requirements to accommodate, and the operational requirements to provide food

frequently in an ordered manner.

133. The refusal to supply Mr Islam with a vegetarian roll on 2 July 2017, and the failure to

supply food that Mr Islam has ordered on a regular basis, did not arise out of any lack of

respect for Mr Islam’s humanity or inherent dignity, or otherwise fail to give proper

consideration to Mr Islam’s human rights. It arose because of a non-compliance with a

procedure, which meant that the AMC kitchen did not have on their system that a

processed chicken roll was not appropriate for Mr Islam. This was not the fault of Mr

Islam, given he did not know about the procedure, but nor was the failure or refusal a

contravention of s 19(1) of the Act, given that the AMC kitchen staff were entitled to rely

upon what was recorded on Mr Islam’s electronic record as the registered dietary

requirement.

134. Accordingly, the complaint of a contravention of s 19(1) of the Act, in so far as it relates

to the Food Claim, has not been made out.

Evidence in respect of the Printing Claim

135. The evidence in respect of the Printing Claim was limited to the affidavit evidence of Mr

Jonathan Peach, Executive Director of ACT Corrective Services, and Mr Islam, who

also tendered the “Detainee Printing Purchases” sheet, which recorded printing

completed and for which Mr Islam was recorded as having incurred a charge of $24.00.

136. Mr Peach provided evidence of the Corrections Management (General Operating)

Policy 2010 (NI2010-398) (Operating Policy). However, the key documents appear to

be the instructions issued by the general manager, a recent direction issued by Mr

Peach.

137. These instructions were the General Manager’s Instruction 114 AMC 2015 (GMI 114

AMC 2015), dated 24 August 2015, and concerned the subject of “detainee printing,

photocopying and faxing of documents”. The relevant terms of GMI 114 AMC 2015 are:

Any detainee may request the printing, photocopying or faxing of documents for personal or legal purposes. A nominal rate may be applied for this service if printing, photocopying or faxing requests are of a significant quantity or regularity.

- Black and white printing $0.20 per sheet

- Colour printing $0.30 per sheet

- Faxing $0.50 per fax (total).

In order to maintain security, privacy and confidentiality, the printer/photocopier will be located in the Education officer’s station…

22

Where printing or photocopying is required for Education/legal purposes, detainees may leave relevant material for printing or copying with Education staff during scheduled attendances at the Education Centre.

138. Mr Peach deposes to that document being amended in the course of previous

proceedings brought by Mr Islam concerning charges for printing: Islam No. 2. The

amendment, dated 11 November 2016, entitled a detainee to ten faxes, ten pages of

printing, and ten pages of photocopying without charge when a detainee is involved in a

civil or criminal proceeding, and thereafter, the costs set out above apply. There was a

general discretion to waive such costs on the application of a detainee. As submitted

by Mr Islam, that amendment does not affect the present case because the issue is not

in relation to legal proceedings. It is in relation to Mr Islam’s further education.

139. Most recently, and expressly due to Mr Islam commencing these proceedings, Mr

Peach deposes to issuing Executive Director Instruction 03/2017, dated 25 November

2017 (Executive Direction), which is in the following terms:

All detainees are entitled to a maximum to 25 pages of photocopying, printing or faxing per day for personal, education or legal purposes.

Where a detainee exceeds 25 pages they will be charged for each additional sheet of paper as follows:

Black and white printing or copying $0.10 per sheet; and

Faxing $0.25 per sheet.

Detainees will need to collect their documents during scheduled education or library attendance or by alternate arrangements approved by the Officer in Charge.

140. Mr Islam accepted that the above Executive Direction resolves what he had alleged was

an arbitrary policy that was being applied in a discriminatory fashion in respect of him.

141. Mr Islam contends that what the Executive Direction does not resolve is the historical

treatment of him in attempting to charge him $24.00 on 6 July 2017, for 120 pages of

printing at 20 cents a page, based on the charges set out in GMI 114 AMC 2015. Mr

Islam maintains this was a discriminatory charge. Importantly, the evidence shows that

Mr Islam did not sign for the printing, nor does the document record that he was

provided with the printed material, and that is why he apparently puts the case on the

basis of an attempt to charge such sum.

142. On the same day, two other detainees were charged 20 cents a page, for respectively

printing three pages and eight pages. In contrast to the entry for Mr Islam, the signature

of each detainee is recorded, and in the column headed “Provided Y/N”, there is a “Y”

for each, which is an obvious reference to the particular detainee having received the

material that had been printed.

143. Mr Islam was also concerned that, given the Executive Direction was not contained in

legislation or in compliance with an order of the Court, there was nothing preventing the

Director-General, through the management of the AMC, from changing the policies

again.

Findings on the Printing Claim

144. The Executive Direction with regard to printing for educational purposes is accepted to

be a satisfactory protection of the human right to access further education, as set out in

s 27A of the Act.

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145. Noting that the Court is not able to award damages for claims brought under s 40C of

the Act, and that the concern of the Court dealing with claims under the Act is primarily

to bring any infringement of an individual’s human rights to an end, the Executive

Direction that has been put in place is critical to what orders, if any, the Court should

now make.

146. In Weaven, discussed above at [49]-[53], a similar situation arose, with changes being

implemented at the relevant facility so that as at the date of the hearing, there was no

occasion for the Supreme Court of Victoria to make any order compelling the defendant

in that case to discharge any duty in order to protect the prisoner’s human rights.

147. Justice Macaulay stated at [35] – [36]:

It is not my function, in any general sense, to adjudicate on the daily machinations of prison culture. What is in issue at this level is the proper discharge of a statutory duty by the Secretary in accordance with law.

Conclusion

On the evidence, I am not satisfied that the Secretary is currently refusing to discharge her duty to Mr Weaven…

148. The same position has resulted here, in that, because of the Executive Direction, there

is no longer any issue whether the Director-General is presently acting in contravention

of Mr Islam’s human rights.

149. The Court does not have the power to order the Executive, in this case, the Director-

General, to keep in place a policy worded in a particular way. To make such an order

would be inconsistent with the principle that the Court should not direct how a duty

imposed on a public authority is to be discharged.

150. It remains then to consider whether findings should be made in relation to the past

attempt to charge Mr Islam under the earlier GMI 114 AMC 2015 policy. Mr Islam

seeks a declaration by way of vindication of his right, in the sense discussed at [72] of

these reasons.

151. The mere fact that a policy includes an element of discretion in how to charge for

printing educational material would not, of itself, constitute an unjustifiable limit under s

28 of the Act. However, it is unnecessary to consider whether an arbitrary policy that

potentially allows for discrimination between detainees in some way contravened s 27A

of the Act, for two reasons.

152. First, it is by no means clear to me that the $24.00 sum recorded on the Detainee

Printing Purchases sheet on 6 July 2017 was actually charged to Mr Islam, because he

did not sign for the printing and is not recorded as having received it. I am not satisfied

that a single attempt to charge an amount for printing would be conduct sufficient to

engage s 27A of the Act.

153. Second, even if the amount was in fact charged, and a further finding had been made

that this enlivened s 27A of the Act, on 6 July 2017, there were two other prisoners also

charged the same amount per page under the policy. That evidence alone is insufficient

to demonstrate that Mr Islam was singled out, or somehow made subject to

discrimination.

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154. For these reasons, the complaint made as to a contravention of s 27A of the Act is not

substantiated, and the above reasoning applies in respect of s 19 of the Act, insofar as

the same conduct was relied upon as contravening that section.

Orders

155. The orders of the Court are as follows:

(1) Proceedings no. SC 248 of 2017 and no. 249 of 2017 are dismissed.

156. I will hear the parties as to costs.

I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: 23 November 2018