Human Rights Cases Personally Litigated by Craig W.J. Minogue and other prison Litigation

Minogue v Human Rights and Equal Opportunity Commission [1998] Vol. 54 Administrative Law Decisions, p.389; and at [1998] Vol 84 Federal Court Reports, p.438.

Professor Spencer Zifcak, the Chairman of the International Commission of Jurists, Victoria Branch (“ICJ-VB”) was given leave to intervene in the Minogue v HREOC matter as amicus curiae. Council acting for Prof. Zifcak, Tony Pagone Q.C. (Vice President of the ICJ-VB), Wendy Harris (Barrister) and Debra Coombs (Barrister and Council Member of the ICJ-VB) submitted a written outline of submission which put the following matters to the Federal Court:

  1. That the Commission always had jurisdiction to consider Craig Minogue’s complaints pursuant to those of its functions…which are not tied or limited to Commonwealth… acts or practices
  2. That Commission erred in its duty when it gave no consideration to which of its functions it should perform in respect of Craig Minogue’s complaints other than to decline to entertain the complaint on the basis that it does not have jurisdiction.
  3. That there was ample indication in the material provided to the Commission by Craig Minogue that his human rights, as defined under the Act, may or are being contravened, and that the actions of authorities at HM Prison Barwon in relation to Craig Minogue may be or are inconsistent with Australia’s obligations under the Covenant.
  4. That there would be no breach of any constitutional principle or mandate if the Commonwealth were to take action to secure the human rights of Craig Minogue and those in his position – it being clear that the combination of the wide powers vested in prison authorities under the Corrections Act and the limited protections for prisoners embodied in section 47 of that statute… are wholly inadequate for this purpose and, indeed, permit action against prisoners in contravention of their human rights, contrary to the requirements of the Covenant.
  5. Mr Pagone QC went on to say in his oral submission that “There is on the face of things a dramatic problem about the administration of justice.”

Minogue v Human Rights and Equal Opportunity Commission (1998) Vol. 166 Australian Law Reports, p.29; and at (1999) Vol. 57Administrative Law Decisions, p.23.

There are the Judgments on appeal.

Minogue v Williams (unreported Fed. Ct., Melbourne, 18 November 1999, Weinberg J.) [1999] FCA 1589.

  • In Minogue v Williams  , Craig was attempting to enliven a human rights jurisdiction in the High Court in relation to claimed human rights abuses in a State prison. In this matter the issue of Prisoners rights in the Corrections Act was canvassed in some detail.
  • Section 47 of the Corrections Act 1986 (Victoria) is headed ‘Prisoners Rights’, and the provisions in that section are specifically referred to as ‘rights’, ie., 47(1) ‘Every prisoner has the following rights – ‘. Of course these rights are additional to any rights at common law, see 47(2).
  • The presiding judge in Minogue v Williams, posed a rhetorical question, asking if these were not ‘hortatory rights’.1 When Craig later looked up the word ‘hortatory’ in the dictionary, he posed a question, at first to himself then to the Appeal Court in (2000) Vol. 60 Administrative Law Decisions,p. 366, the question was: “Is the idea of “hortatory rights” not a self-evident oxymoron?” In discussing the status of rights in the Corrections Act, the following exchange between the primary judge and counsel for corrections illustrates the thinking:

Judge: ‘Is a contravention of section 47 an offence against the Act?’
Counsel: ‘I don’t believe there is a provision which explicitly provides to that effect.’
Judge: ‘Yes, so that prisoner could not institute the proceedings for an offence…’
Counsel: ‘That would appear to be the case, your Honour, yes.2

It was Craig’s submission both at the first instance and on Appeal that ubi ibi remedium (where there is a right there is a remedy), but the issue of the rights which there is no remedy was not resolved. The reality is that without the considerable indulgence of a common law court at the State level, a violation of a prisoner’s rights under the Corrections Act ‘couldn’t be run in any court’.3 Counsel for Craig’s jailers said: ‘Section 47 is a very clear legislative command about prisoners’ entitlements… [but]…there’s certainly no express conferral of a private right of action by the Act.’4 In Corrections Law, rights for which there are no remedies and the oxymorons remain.

Minogue v Williams (2000) Vol. 60 Administrative Law Decisions, p.366 is the appeal judgement in this case.

Minogue v Australia (2004) UNHCR 52 (11 November 2004) see http://www.worldlii.org/int/cases/UNHCR/2004/52.html

Craig summarises the Minogue v Australia case in an essay titled The End of a Long and Winding Road: A Summary to and the Background of the Judgement in Minogue v Australia.

These cases were Craigs attempts to enliven a human rights jurisdiction at Australian law in relation to the actions of State as opposed to Federal agencies, and to protect himself and others from human rights violations. These cases starkly highlighted the shortfalls of human rights law in Australia. Of the Minogue v Humans Rights and Equal Opportunity Commission matters, The Australian Legal Monthly Digest reported in August 1999 that:

‘The HREOC does not have jurisdiction under the HREOC Act…to determine a complaint  involving the acts or practices of a State or private authority done or engaged in a State. Although the Act was enacted to secure the fulfilment of Australia’s obligations under the ICCPR, the Act does not make the provisions of the Covenant directly enforceable in Australian courts.’

Of the Minogue v Williams matter, The Australian Legal Monthly Digest reported on 27 January 2001 that:

‘The rights and obligations specified in International Covenant on Civil and Political Rights (“ICCPR”) are not incorporated into Australian domestic law, and cannot be enforced directly in Australian courts. The fact that the treaty has been ratified and included in the HREOC Act... does not mean that an individual may obtain legal redress in relation to an alleged contravention of that treaty. … The High Court did not have the jurisdiction under the Constitution, s75(i), to entertain an action based upon a breach of Act 10(1) of the Covenant, where the provision is relied upon as the direct source of the right which the applicant claims to have been infringed.’

Craig has also been the driving force behind prison litigation by lawyers on his behalf and by other prisoners. We asked Craig about the effectiveness of resorting to litigation to resolve prison issues, he said:

‘Litigation is always the last resort. Because of how difficult it is, no prisoner that I have ever known, resorts to litigation in the first instance. And when a prisoner gets to Court, there is little chance of him or her receiving a fair hearing. A persons ‘rights’ are equivalent to their power to enforce them, and just try being a prisoner and taking your jailor to Court and you will find in Australia as a matter of practice that State Courts and Tribunals defer to the expertise of prison authorities because theirs is thought to be such an esoteric field of knowledge that no Court could possibly hope to understand the complexities of the prison (Edney 2001).

Or fallacious reasoning is used to play the man and not the ball, as Chief VACT Judge Morris did in Minogue v Department of Justice [2004] VCAT 1194 (25 June 2004). In this case I was refused access under Freedom of Information laws to a copy of the Prison Rules. The reasons given by Justice Morris for refusing my access contained references to folkloric ideas about the ‘prison grapevine’ and how it was ‘rumoured’ that dozens of applications for the position of the Chief Justice of the Supreme Court were made by prisoners soon after it was advertised – what biased nonsense. The rationale and relevance of these examples to my FOI Application were that if I, hypothetically that is, were to have access to a copy of the Prison Rules then the very next day hundreds, if not thousands of other prisoners would want their own copy, and as the Rules are amended every few days, the Department could not keep up with providing updated copies to hundreds of prisoners every few days. The Department of Justice now uses the nonsensical hypothetical “Morris reasoning” to refuse prisoners access to copies of the documents. The decision Minogue v. Department of Justice has been widely criticized by academics and lawyers as promoting a lack of administrative transparency in the prison system and creating a situation where the rules that prisoners are supposed to abide by are changed every few days and the changes concealed from them (Edney 2005).

As for litigating in the Federal Courts, they find that prisoners are excluded from human rights protection as a matter of Australian law (Minogue v HREOC 1998; Minogue 2002 pp.196-212) In other words, the rule of law in Australia applies equally to all, but some people are much less equal than others. The Australian hypocrisy has a very long history. From the First Fleet Invasion and the genocide of the Indigenous people of this land, to prisoners, to those people unfortunate enough to land here without a visa and claiming asylum as a refugee.’

Craig’s actions and his help of others to bring matters to the Courts have never lead to the allegation that the matter raised was in anyway whatsoever vexatious. Despite his well known criticism of the system and the state of human law in Australia, Craig Minogue is well respected as a litgant in person in the State and Federal Courts.

Notes:

  1. Transcript of proceedings (Federal Court) in Minogue v Williams (VG406/99), 28/10/99, p.25, line 33
  2. Transcript of proceedings (Federal Court) in Minogue v Williams (VG406/99), 28/10/99, p. 6, line 1
  3. Transcript of proceedings (Federal Court) in Minogue v Williams (VG406/99), 28/10/99, p.28, line 21
  4. Transcript of proceedings (Federal Court) in Minogye v Williams (VG406/99), p.33, line 41-44.

General Prison Litigation

In addition to the Human Rights tests cases and the Minogue v Department of Justice FOI case which have been detailed above, Craig has taken three other prison related matters to the courts.
Every aspect of a prisoner’s life from the food they eat, the medical care they receive, to the clothing they wear and much more is regulated by the power that is given to the prison and its officers by the law, every action taken in a prison is bound by the rules of law. This means that when disputes arise about the treatment of prisoners this is a matter which is seen through the law. Disputes about how the prison treats prisoners arise  often as the prison has so much power over prisoners. All but one in a thousand of these disputes are resolved locally as part of the law which provides for the prison’s internal management processes.
When a power is given by the law there must be a way that the people exercising the power are made accountable; this is why there are so many avenues of complaint for prisoners in the Corrections Act 1986. Power without accountability is not law, but an abuse of the law. When a matter cannot be resolved locally or externally through a complaint, one avenue of redress for prisoners is the dispute resolution processes of the Courts that deal with disputes at law.
Craig has never been criticised in any way by any Court for bringing a matter to Court. Craig has never had to pay the costs of any proceedings he has brought against Corrections. Every matter Craig has been involved with has raised legitimate legal and factual disputes which he had made significant efforts to resolve beforehand.
In the three cases which will now be detailed, Craig drafted the Court documents and represented himself. All of these cases were fully settled in Craig’s favour before the matter had to go to Court to be decided.
The details of the three cases are as follows:

Minogue v Anderson, Supreme Court Case No.6325 of 2003. In June 2003 Craig initiated proceedings by a Judicial Review against Officers of Port Phillip Prison and others in relation to a decision to remove his computer privileges on the grounds that the decision was so unreasonable that it was unlawful. The case was settled after the first hearing of the matter when an agreement was signed between the parties returning Craig’s computer privileges and undertaking never to make a decision using the impugned reasons that Craig claimed made the decision unlawful. In this case prison staff also faced contempt of court charges over their inappropriate conduct when they interfered with legally privileged communication between Craig and lawyers assisting him in the case. It was widely reported in the media that lawyers for the Prison apologised to the Court and gave an undertaking not to engage in the inappropriate conduct that Craig sought to bring the contempt of court charges over.

Minogue v Spadano, Supreme Court Case No.4235 of 2004. In January 2004 Craig initiated proceedings by a Writ for breach of contract against the General Manager Barwon Prison. Craig claimed that the General Manager breached the conditions of a contract between them in relation to his use of a computer. The case was settled before it was necessary for anyone to appear in the Court when the General Manager honoured the terms of the contract.

Minogue v Norman, Supreme Court Case No.10235 of 2009. In November 2009 Craig initiated proceedings by a Judicial Review against the General Manager of the Marngoneet Correctional Centre claiming that the prison was acting unlawfully in extending the practices of invasive searching beyond that which the law, rules and policies of the prison allowed. The case was settled before it was necessary for anyone to appear in the Court when a General Manager’s Instruction was issued at Marngoneet stopping the particular practices of invasive searching which Craig argued were beyond that which the law, rules and policies of the prison allowed.

In Conclusion About Craig’s General Prison Litigation
The cases Craig has bought to the Courts have received the support from the legal establishment, like  Community Legal Centres, the International Commission of Jurists, and legal academics like Richard Edney who supported the arguments made by Craig in his 2005 article in the Australian Journal of Administrative Law titled ‘Importance of administrative transparency in the correctional context: Knowing the rules’.
That Craig has fully settled in his favour the three cases he has taken against the prison and its officers proves that Craig has used the law and the processes of the Courts in a wholly appropriate way.