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Minogue, Craig --- "Prisoners Rights: Human rights and excursions from the flat lands" [2000] AltLawJl 53; (2000) 25(3) Alternative Law Journal 145


Prisoner’s Rights
Human rights and excursions from the flat lands

CRAIG WJ MINOGUE discusses his experiences as a prisoner running human rights actions and reflects on some of the realities of prison life.

In November 1996 I wrote to the Human Rights and Equal Opportunity Commission (HREOC) claiming that I was being denied the basic human rights of having unimpeded access to the courts, being allowed to possess documentary evidence in a case against me and being able to consult with a lawyer at Barwon Prison. I worded these rights in the terms of Article 14 of the International Covenant on Civil and Political Rights.[1] HREOC refused to hear my complaint claiming that it did not have jurisdiction. I personally litigated the issue in the Federal Court of Australia and mounted a constitutional challenge to the validity of HREOC' s interpretation of the Human Rights and Equal Opportunity Commission Act 1986.[2] This was reported under the heading of 'Human Rights: Craig Minogue v Human Rights and Equal Opportunity Commission' by Dr Jude McCulloch in the October issue of this journal, (1998) 23(5) Alt.LJ 244.

After that report went to press the Commonwealth Attorney-General intervened to oppose my application. Professor Spencer Zifcak, the Chairman of the International Commission of Jurists (ICJ) Victoria Branch was given leave to intervene as amicus curiae. The ICJ made the following submissions:

1. That 'the Commission always had jurisdiction to consider [Minogue's] complaints pursuant to those of its functions ... which are not tied or limited to Common­ wealth ... acts or practices' .[3]

2. That the HREOC erred in its duty when it 'gave no consideration to which of its functions it should perform in respect of [Minogue's] complaints other than'[4] to 'decline to entertain [Minogue's] complaint on the basis that it does not have jurisdiction' .[5]

3. That 'there was ample indication in the material provided to the Commission by [Minogue] that the human rights of [Minogue], as defined under the Act, may be or are being contravened, and that the actions of authorities at HM Prison Barwon in relation to [Minogue] may be or are in­ consistent with Australia's obligations under the Covenant.'[6]

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 [Minogue] ... 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 ... that statute

... are wholly inadequate ... and, indeed, permit action against prisoners in contravention of their human rights, contrary to the requirements of the Covenant.'[7]

I lost my application, and I appealed the decision, but ultimately the matter was lost and human rights law was not advanced from its comatose state.[8]

Before I took the action against HREOC, I was involved in assisting a fellow inmate to litigate human rights issues against Barwon Prison and Correctional authorities.[9] The same complaints were made and the same rights were claimed in that matter, Rich v Groningen and Others, as I agitated in the HREOC matter.

The Court in Rich delivered an equivocating judgment that can be read equally for and against the rights that Mr Rich was claiming. The first half of the judgment deals with the history of the suit and the facts as claimed by the parties. The second half deals with the Court's findings, and some of these were strong criticisms of correctional authorities. However, the findings and criticisms were made under the cover of obiter dicta comments, and therefore they are worthless.[10] Obiter dicta comments are made outside of the purview of a case and do not form part of the common law.

It is interesting to note that the case of Rich was used by counsel for the Commonwealth Attorney-General, in the appeal hearing in Minogue v HREOC, to oppose my claims for human rights by saying that the issues could be dealt with at State level. However, counsel was embarrassed when I pointed out the obiter dicta nature of the comments he was relying on.

Some light was thrown on the situation of human rights for people in custody of the States by the case of Collins v The State of South Australia [1999] SASC 257. In this case, a prisoner, Robert Collins, acting on his own behalf, brought an action against the State claiming violations of his human rights at the Adelaide Remand Centre. In his judgment in Collins, Millhouse J found that he was satisfied on the evidence that Collins' human rights had been violated and that he thought it strongly arguable that the scheduling of a treaty to an enactment incorporated it into domestic law. However, he ultimately said: 'Much as I regret it, as a single judge I am not able to give force to the basic human rights set out in these conventions'.

Having started a new action in the High Court, Minogue v Williams,[11] I relied upon the decision in Collins to support my cause of action. The primary judge in Minogue v Williams did not accept the dicta in Collins and found that there was no jurisdiction in the High Court or the Federal Court to hear a human rights suit brought by an individual claiming violations by a State agency. By order of the Court the costs of the respondent (the prison manager) were awarded against me.[12] A lawyer supporting me as a media spokesperson-the prison authorities had banned me from contact with the media in relation to 'human rights issues'­ remarked after this judgment: 'So, not only can the State violate your human rights, but now you have to pay them for the privilege!' I appealed that decision and the Court disapproved the dicta in Collins and said that the scheduling of a treaty to an Act does not incorporate it into domestic law.[13]

The Court chronology over, I am compelled to ask where I am left personally by my experiences. My Court action have allowed me to appreciate the structures and underlying philosophies of a civilised society, and for a moment or two, I was heartened to be a part of that. The intellectual environments of the Federal and High Courts are certainly different from the exercise of brute power that I have felt at the State level.

In trying to sum up my experiences for this article I reflected back to an early directions hearing in the Federal Court. The issues to be dealt with on the day fizzled out and the Judge apologised to the parties. I jokingly replied, 'At least I've had a day out'. It was not much of a joke and more for the amusement of the judge; I was playing on the ignorance of those who don't know the reality of a day out from prison. A lawyer who was acting as my media spokesperson wrote a few days later and said that it must be '...a different experience for you zipping along at I 00 km and seeing the horizon as opposed to the flat world of prison'. I wrote back:

There are no windows, it is pitch black in the back of a prison van. And I get motion sickness, and the exhaust fumes that belch into the caged compartment in which I am locked, make me ill. Each time I go and come back from court I very nearly throw up. I get a one step glimpse as I get off the van and step through the back door of the Federal Court, and that's only of the media pack. If I am 'lucky' I can occasionally get a glimpse of people on the street if a scratch has been made in the layers of black paint on the windows. And I am sorry to say, but I don't yearn to be out there with you, frankly, resentment is all I feel. What comes to my mind are the echos of inmates screaming at night as they are being bashed by prison guards, the polite turning away of lawyers and judges, and the fact that if a prisoner wants to run a Court action against his or her gaolers, they have to do it themselves.

This is no day out, prefaced and concluded as it is by the borderline sexual assault of the strip search; the prison guard instructing me to 'Lift your ball bag!' and 'Bend over and spread 'em!' so he can peer up my anus.

Yes the prison environment is a very flat place, but that is not just limited to the topography, it also includes the philosophy and thinking, what there is of it, and the general lack of any real purpose. Engaging in the intellectual arena of the Federal Court is a nice change and I almost feel like a real person again, but ultimately they all turn away from me and shuffle out back to chambers and I'm sent back to the flat lands.

Should I feel justified in my resentment, who can tell. After all I have tertiary level study by correspondence, colour TV, my computer and books, and three meals a day­ better than most nursing home residents if you believe the media, and anyway there are plenty of other people to ask. Perhaps those who are being sent to prison for stealing biscuits and orange cordial could add their voice to mine - but then again, who would hear us?

Craig Minogue is currently a prisoner in Port Phillip Prison.

My thanks to the community lawyers Amanda George and Dr Jude McCulloch (now of Deakin University). If anyone will hear, they will.

[1] Article 14.1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or ofhis rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ... Article 14.3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equity: (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. Article 14.5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

[2] Minogue v Human Rights and Equal Opportunity Commission, Marshal J , unreported, 12 October 1998.

[3] Outline of Submissions of the International Commission of Jurists, at pp.4-5, para 8 in Minogue v Human Rights and Equal Opportunity Commission, VG 744 of 1997.

[4] Outline of Submissions, above, p.4, para 8.

[5] Outline of Submissions, above, para 2.

[6] Outline of Submissions, above, p.6, para I 0 (the 'Covenant' being the ICCPR).

[7] Outline of Submissions, above, p.l4, para 22.

[8] Minogue v Human Rights and Equal Opportunity Commission (1999) FCR438.

[9] Rich v Groningen and Others [1997] VSC 35; (1997) 95 A Crim R 272.

[10] Rich v Groningen and Others, above, p.284 under the heading 'Matters raised'.

[11] Minogue v Williams [1999] FCA 1589 was a suit brought by me against the General Manager of Barwon Prison in the High Court of Australia claiming human rights violations and personal injury - different circumstances from those which gave rise to Minogue v HREOC. The matter was remitted to the Federal Court for the jurisdictional question to be decided. I failed to convince the Court that I had enlivened the jurisdiction of the High Court pursuant to s.75(i) of the Constitution. See Minogue v Williams (Weinberg J, unreported) [1999] FCA 1589.

[12] The order for costs against me was later made a moot point after I appealed the decision, and after bar table negotiations the public prison system agreed to drop its claim for costs and never to ask for costs if I were to litigate against them in the future. See Minogue v Williams [2000] FCA 125. Judgment delivered in Melbourne on 17 February 2000 by Ryan, Merkel and Goldberg11 which details the capitulation of prison authorities on the costs issue.

[13] Minogue v Williams [2000] FCA 125.

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