What has Dietrich been up to?
Tuesday, September 26, 2017
Justinian in Charter of Rights, Human rights, Peach Melba

A dip into September's cases brought under Victoria's Charter of Human Rights and Responsibilities ... Human rights of prisoners and Sikhs at school ... So far the world hasn't collapsed ... Peach Melba on the front line 

VICTORIA is the only Australian state with legislation that codifies human rights. The Charter of Human Rights and Responsibilities Act 2006 sets out twenty human rights which all public authorities must act consistently with. 

On September 22, the Court of Appeal handed down its judgment in Minogue v Shuard. The applicant, Dr Craig Minogue, sought judicial review of a decision made by the Commissioner of Corrections Victoria. 

This decision was a letter telling Minogue to cease a distance education diploma of counselling with the Australian Institute of Professional Counsellors. 

Amongst other grounds, Minogue submitted that the decision that he cease correspondence with his education provider was contrary to his right to freedom of expression in breach of s.15(2) of the Charter

Minogue has been incarcerated since 1986 for carrying out a bomb attack on Russell Street which killed Constable Angela Taylor and injured 22 people. 

Two years later, he murdered an inmate. Incidentally, the "Dr" apparently comes from a PhD in applied ethics and human and social services undertaken while Minogue was in jail. 

He became eligible for parole in 2016. To ensure his continued incarceration, the Andrews government inserted s.74AAA into the Corrections Act 1986 stipulating that the Parole Board must not make a parole order for a person serving a prison sentence for the murder of a prison officer. 

Its retrospective application means that Minogue will not ever be granted parole unless he is "in imminent danger of dying". 

Corrections Victoria felt that Minogue should cease studying the counselling course because "the nature of such studies was not suitable when considering [Minogue's] offending history". The respondent informed the prisoner that he would also not be permitted to complete the practical components of the course, which would involve him counselling other prisoners. 

By the time the trial came around, no restrictions had been placed on Minogue's mail to and from his education provider. 

Among Minogue's written submissions was the statement: 

"To say: 'We said we were going to limit the operation of his rights, but we didn't get around to it, so no harm was done' is nonsense, and the court should not accept such nonsense." 

Justice Michael McDonald of the Supreme Court disagreed. The application for judicial review was dismissed at first instance with the judge finding that the effect of the impugned decision was only a hypothetical one as there was no live controversy. 

In practice, Minogue was still able to continue the counselling course and receive mail from AIPC. Minogue appealed. 

The C of A agreed with the trial judge that there was no real controversy to be tried as Corrections Victoria had ultimately resiled from the decision that was to be the subject of judicial review. Minogue's right to freedom of expression under the Charter remains intact. 

On September 14, the Supreme Court of Victoria heard an application from Hugo Rich seeking judicial review of a decision made by the general manager of Barwon Prison to deny him supervised internet access. 

Rich had requested use of the internet in order to research case law to assist in court preparations. 

Rich has been in prison since 2009 for shooting dead a security guard during an armed robbery. This landed him a life sentence after decades of criminal activity, including drug trafficking. 

Hugo Rich is not his birth name: prior to 1990, he was Olaf Dietrich. He appealed his conviction for importing heroin into Australia in 1986 up to the High Court. Dietrich v R remains one of the most important constitutional law cases in Australia.  

Under rule 4.14.1 of the Commissioner's Requirements, prisoners are not permitted to access the internet. The court heard evidence from an IT specialist called Mr Justice, from the Department of Justice & Regulation. He said that it would be too difficult to monitor a prisoner's external communications over the internet if access were permitted.

The question before the court was whether this meant that Rich's Charter rights to a fair hearing and to have adequate time and facilities to prepare a defence had been breached.

Justice Maree Kennedy held that these provisions of the Charter do not confer a general obligation to provide access to the internet in order to provide for a fair trial. 

Rather, the applicant had to demonstrate that being denied access to the internet meant that he was being denied the right to a fair hearing. The judge found that Rich was not prevented from lodging a special leave application to the High Court even if he could not access the internet. 

Her Honour did not think that Rich would benefit from access to more legal materials, as the documents he submitted to the court already contained "extensive reference to legislation, case law and other materials including bench notes from the Victorian Criminal Charge Book". 

She held that restricting prisoner access to the internet is necessary for security reasons, and is therefore a reasonable limitation to the right to a fair hearing under s.7(2) of the Charter.  

As well as imposing obligations on public authorities, the Charter sets out one of the five established approaches to statutory interpretation. 

Provisions are to be interpreted in a way that is compatible with human rights so far as it is possible to do so consistently with the purpose of the statute. 

Applying this to s.38(1) of the Equal Opportunity Act, VCAT held that Melton Christian College had discriminated against a person when it told the family of a five-year-old child that he would have to comply with the school's uniform policy and would therefore not be permitted to wear the uncut hair and head covering of his Sikh faith. 

From Elif Sekercioglu 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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