22 March 2019

Religious Freedom and Prisoners

Haigh v Ryan [2018] VSC 474 involved a prisoner in Barwon Prison seeking judicial review of a decision of the defendant to refuse him access to cards in a deck of Tarot cards.

Haigh sought orders to compel the defendant (the Prison General Manager) to remake the decision according to law, relying on provisions of the Corrections Act 1986 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). Haigh is serving life sentences for committing a number of murders, discussed in R v Haigh [2009] VSC 185.

 The judgment states
 A dispute about Tarot cards might hardly seem worth a Supreme Court case. But it is the underlying issues that are important. The Parliament has given prisoners, even those convicted of the most terrible crimes, rights they can seek to exercise while in prison, one of which is the right to practise their religion. Section 47 of the Corrections Act contains 15 paragraphs listing prisoners’ rights and s 47(2) states that those rights are additional to, and do not affect, any other rights which a prisoner has under another Act or at common law. The rights in the Charter also apply to prisoners. The Court must resolve this dispute as no other Court or Tribunal in Victoria has jurisdiction to do so. 
Corrections Victoria accepts and states in documents used to govern the operation of prisons that, in accordance with the laws passed by the Parliament: Prisoner’s human rights are limited only to the extent that it is reasonably and demonstrably justified. All staff must act compatibly with human rights and consider human rights when making decisions. 
Because of the range of questions that prisoners’ rights can raise and the number of written prison policy statements that need to be considered, many legal arguments were raised in this case.
It continues
The plaintiff practices what he describes as the Pagan religion and claims that his religious observance involves the use of Tarot cards. The defendant does not dispute that the plaintiff’s religious belief can be described as Paganism, that Paganism is to be regarded as a religion and that the use of Tarot cards can be an element of that religious observance. 
 The plaintiff did not attempt a simple definition of Paganism. The term is used to describe a wide variety of beliefs. Many Pagan religions recognise the Divine in nature. That is why Corrections Victoria considers Paganism to be a Nature Religion. For instance, the plaintiff says that, as a Pagan, he does not try to divorce himself from any part of his fundamental physical processes, or his inseparable relationship with nature, the planet and the universe. 
Corrections Victoria recognises the right of prisoners to practise the religion of their choice, subject to the good order and security of the prison. It has particular procedures for prisoners who practise various religions. For instance Islam, Buddhism, Sikhism, Judaism and Christianity. Nature Religions are also recognised, of which Paganism is one. 
Victorian prisons use policy documents, called Deputy Commissioner’s Instructions (‘DCIs’), which describe prisoners’ rights concerning religious practice. 
These policy documents, including the DCIs, do not have the force of law. They are more in the nature of guidelines which are permissible as long as they do not fetter the administrator’s exercise of discretionary powers. 
The plaintiff argued that the defendant had applied DCI 1.04 titled ‘Contraband and Controlled Items’ in a way that subordinates the operation of s 47(1)(i) of the Corrections Act and ss 14, 15 and 22 of the Charter. 
DCI 3.07 titled ‘Religion’ states:
OUTCOME Prisoners have the right to practice the religion of their choice, subject to good order and security of the prison. Prisoners’ human rights are limited only to the extent that it is reasonably and demonstrably justifiable. All staff must act compatibly with human rights and consider human rights when making decisions. 
OPERATING PRINCIPLES Corrections Victoria recognises the contribution which the practice of religion and pastoral care make to the individual’s well being and stability in the community and supports the maintenance of such contact in the prison environment. Staff will demonstrate and respect and support and will be mindful of others’ religious beliefs when dealing with prisoners, visitors and service providers. 
1. PROCEDURES 1.1. General Prison General Managers will: establish prison routines, staffing levels and facilities that allow prisoners to attend religious services on a regular basis inclusive of mainstream and minority denominations; ... 
3.12. Religious and Spiritual Items, Hard Cover Religious Books and Publications Religious and spiritual literature, including hard cover publications, may be brought into the prison subject to security requirements. If the prisoner is in management or a high security unit, the chaplain must obtain permission from the General Manager to provide the prisoner with hard cover books (which includes religious materials). ... 
The Schedules to DCI 3.07 provide for religious observances in respect of a number of religions. Schedule 3.07(4) deals with ‘Religious Observance – Nature Religions’ and states: This Schedule serves to provide basic guidance to staff on the general requirements for prisoners who observe Nature Religions. 1. Worship The term ‘Nature Religions’ has been identified by the Australian Bureau of Statistics as a broad category of beliefs including Paganism, Animism, Druidism, Pantheism and Wiccan . E*Justice’s religious categories replicate this identification system. Prayer and meditation are the main methods of worship for prisoners who identify themselves as believers of Nature Religions... Prisoners may request the use of Tarot cards for meditation, however, Tarot cards are not an essential religious tool. Prisoners who request the use of Tarot cards can submit a Special Spend request to the prison General Manager. Staff are required to note that prisoners approved to purchase Tarot cards should be monitored as they are not to involve other prisoners. If it found that Tarot cards are being used for other purposes they can be removed from the possession of the prisoner and returned to the prisoner’s stored property. ... Texts are to be made available to prisoners who observe Nature Religions who request them and they will need to be sourced by the Regional Liaison Chaplains (please note that there is no one ‘sacred scripture’). Advice about specialised texts can be sourced from Pagan Awareness, please contact the Projects Officer, Operations Directorate for details. 
This Schedule dealing with Nature Religions also deals with ‘Food/Diet’, ‘Dress’, ‘Work’ and ‘Festivals’. The plaintiff’s evidence about his use of Tarot cards 
The plaintiff made many lengthy affidavits, which included details of his practice of Paganism and the importance of his use of Tarot cards. In essence, he states that Tarot cards are like a religious text or a ‘spiritual tool’. The defendant did not suggest that this evidence was a sham, or that it did not contain the plaintiff’s genuine beliefs, or that the Court should be sceptical about it. He was not cross-examined on his affidavits. 
The plaintiff gave evidence that Paganism is a religion and that the use of Tarot cards is a recognised and well-established practice of that religion. According to his evidence, they are a contemplative doorway to access his inner-self and assist him in finding a deeper meaning. They are quite different from a deck of ordinary playing cards. 
The images in the Tarot cards are deliberately put together to stimulate contemplation on their surface and deeper element. He uses them to contemplate on fundamental problems of life and his beliefs. They play an important part in the furthering of the plaintiff’s spiritual and religious pursuits and developments. An outsider should not be the judge of the relevance of the Tarot imagery to an individual’s spiritual and religious practice. The surreal imagery in the cards concerned was intended to hook the mind and pull it in certain directions. Believers in Paganism use a number of differently designed Tarot decks to consider different points of view. There are hundreds of versions of Tarot cards. He said that the relevant pack was ‘deliberately designed to stimulate the darker parts of the mind’. But he also described them as ‘benign’ stating that: The crones etc., in the Deviant Moon Tarot are beneficent platforms from which to safely dive into the deep and dark end of the mind. They are intended as an opportunity to better understand the regions of the mind that generate personal woes, and contemplation of their unique forms enables a glide into, and out of, the fringe areas of the mind and life that are neglected to my detriment. The surreal imagery of the crones etc., is not a malevolent aberration designed to corrupt innocent minds. Rather, it extends a welcoming hand in friendship, offering insights that refine us intellectually and morally. The images are rescuers, selflessly offering themselves for explorations that can lead to one’s extrication from ignorance, folly and evil. The cards are far from perversions, as in themselves they are harmless benefactors. They are designed to expand considerations, analysations, and meditations beyond the borders of traditional Tarot imagery. 
The plaintiff argued that, by withholding the four cards in issue from a particular Tarot pack, the defendant removed its value and integrity as a spiritual and religious tool. Conventional Tarot packs contain 78 cards, with each card being an inseparable part of its functions. Removing cards from a pack could be likened to taking parts from an engine. A pack of Tarot cards is divided into two groups, one a group called the ‘Minor Arcana’ comprised of 56 cards, which are in turn divided into four sub-groups. The smaller of the two groups is called the ‘Major Arcana’, comprised of 22 cards. They are the more profound, important and instructional cards and are of primary interest to the plaintiff, who uses them for contemplation in conjunction with the letters of the Hebrew alphabet. The defendant withheld from the plaintiff both Major and Minor Arcana cards in the set, prevented him from using the set as a whole, and from using the now incomplete Major Arcana separately. 
In late 2016, the plaintiff requested access to Tarot cards for his use as a ‘spiritual tool’. As the decks of cards were not available through ‘internal prison processes’, he had to submit a written request. In it, he specified three decks, in order of preference, that were available for purchase online and that he sought to acquire. His third choice was the Deviant Moon deck. 
An Operations Manager at Barwon Prison received the plaintiff’s written request for the three sets of Tarot cards and sought advice from the Prison’s multi-faith chaplaincy officer with respect to Correction Victoria’s policy on Tarot cards. The Operations Manager referred the plaintiff’s request to the General Manager of Barwon, Mr B Ryan (the defendant). 
Mr Ryan refused the plaintiff’s request in January 2017. He later stated that: I refused Mr Haigh’s request because I considered he could use the Tarot cards in a way that could undermine the security and good order of the prison, such as conducting readings for other prisoners. This could undermine the security and good order of the prison because, in my experience, Tarot readings could be used to prey on or manipulate vulnerable prisoners (such as those with mental illness), could unsettle prisoners or could encourage or cause unrest in prisoners. Ensuring that security and good order of the prison and the safety and welfare of prisoners, staff and visitors underpins all my decision-making as Barwon General Manager. 
In February 2017, the plaintiff complained to the Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) about Mr Ryan’s refusal to allow him access to Tarot cards. Mr R Wise, Deputy Commissioner of Operations, Corrections Victoria, advised Mr Ryan that the plaintiff should have access to the Tarot cards on the basis that they were necessary for the practice of his religion. ... ... 
Mr Ryan told the Barwon Prison Operations Manager, Mr L Doherty, that the plaintiff could be issued with one deck of Tarot cards, and the other two were to be placed in his stored property. But, for unexplained reasons, the plaintiff received two decks of Tarot cards and one was placed in his stored property. 
Next, Mr Doherty showed Mr Ryan four Tarot cards from the ‘Deviant Moon’ deck which he considered were ‘objectionable material’ within DCI 1.04. The four cards each bear an abstract, mystical illustration of an other-worldly female character displaying breasts, sometimes more than two. The plaintiff rejected any suggestion that they had anything to do with family violence and disrespect for women and argued they were incapable of offending a reasonable person. 
The images on the cards are titled: Temperance, Empress, Queen of Wands and 5 of Pentacles. The plaintiff described them as ‘benign’ images. He stated that the Deviant Moon Tarot: resonated with my sense of spiritual Self in relation to my Pagan thought, conscience, religion and belief at this point in time. I believe that I may learn a lot from the Deviant Moon Tarot, and my being restrained from accessing it harms my inner spiritual and religious life. ... 
Mr Ryan made his decision to withhold the four cards because he believed they contained objectionable material. He explained: I agreed with Mr Doherty that, by reference to DCI 4.08A, the subject cards were objectionable and there was no reason to depart from the policy established by Regulation 33 and DCIs 1.04 and 4.08A. Apart from my concern about Mr Haigh having ‘objectionable material’ in his prison cell and what Mr Haigh might do with the cards, I was also concerned about workplace health and safety concerns for my staff that might arise, for example, if prison staff members came across the subject cards when searching Mr Haigh’s cell. Some staff members could be offended by the subject cards. I considered that the cards should be withheld in accordance with Regulation 33 and DCI No. 1.04. I therefore told Mr Doherty not to issue Mr Haigh with the subject cards.
The Court concluded
The plaintiff’s case is principally based on allegations of breaches of human rights conferred by the Charter (see grounds 16, 17 and 21 to 25 and 27) and by s 47(1)(i) of the Corrections Act (see grounds 14 -16, 18, 25-27). I shall deal with each in turn. 
The Charter rights 
As a preliminary point, the plaintiff argued that Paganism should be accepted as a religion. This characterisation was not disputed by the defendant and I accept the argument for the purposes of this case. 
The plaintiff argues that because of the withholding of the four cards, the Tarot pack is incomplete and cannot be used and that this is an unlawful limitation on his right to freedom of thought, conscience, religion and belief contained in s 14 of the Charter; his right to freedom of expression contained in s 15 of the Charter; and his right to humane treatment during imprisonment contained in s 22 of the Charter. 
While the Corrections Act and the Corrections Regulations provide the legislative basis for prison governance and management in Victoria, s 38(1) of the Charter makes it unlawful for a public authority to act in a way that is incompatible with human rights or to fail to give proper consideration to a relevant human right. The defendant has conceded that he is a ‘public authority’ within the meaning of the section. ...
The third Charter right on which the plaintiff relies is the right recognised by s 22. He alleges that his dignity was affected by the removal of the subject cards in breach of the human right contained in s 22. He states that: The dignity right very much protects my right to have a reasonable space in my own mind, and to engage in behaviours to give effect to a spiritual and religious inner life. My dignity as a person is only respected if I am allowed a reasonable avenue of finding self-worth, and my spirituality allows me to maintain a more positive state of mental health than would otherwise be the case. 
I do not consider that the plaintiff has established that his dignity right has been curtailed by the withholding of the cards.
The defendant was entitled to adopt guidelines in the form of DCIs, to facilitate the everyday running of the Prison. The DCIs are only guidelines. I do not see them in their terms or in their application as restricting the discretions or powers of the defendant. 
The defendant submitted that there was no duty imposed on Mr Ryan to allow a prisoner access to any particular item of property, or even to consider whether to do so, and as a result there was no justification for issuing an order in the nature of mandamus. He also submitted that certiorari could not be granted because his decision has no continuing legal effect as it did not stop him from making a different decision. 
However, when a decision is unlawful for a failure to give proper consideration to human rights, the Court may make an appropriate declaration and set aside the decision when an error appears on the face of the record. The Court may also order the decision-maker to remake the decision. I consider those orders appropriate in this case. 
The plaintiff claimed a wide range of declarations and other judicial review remedies to reflect any claims upon which he might succeed. A number of the proposed declarations state matters which are not in dispute, e.g. whether Paganism is a religion, and about which declaration should therefore not be made. 
In my opinion, the plaintiff is only entitled to a declaration that the defendant’s decision to withhold the four Tarot cards from him was unlawful for failure to comply with s 38(1) of the Charter, as well as an order in the nature of certiorari issuing for error of law on the face of the record setting aside the defendant’s decision contained in his letter of 22 June 2017. The plaintiff’s application for access to the four withheld Tarot cards must be reconsidered in accordance with law. 
Finally, I note that my decision requires implementation of the legal obligations that Corrections Victoria acknowledges in its printed Deputy Commissioner’s Instructions, that in making decisions, prisoners’ human rights are to be limited only to the extent that is reasonably and demonstrably justifiable. 
I do not decide that the plaintiff is entitled to all Tarot cards that he requests, but that when he requests them for religious practice, his rights acknowledged by the Charter must be given proper consideration in the making of the decision about the request.