A S v Secretary to the Department of Justice and Regulation

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW

S CI 2016 4891

A S	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION	Defendant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2017
DATE OF JUDGMENT:	5 June 2017
CASE MAY BE CITED AS:	A S v Secretary to the Department of Justice and Regulation
MEDIUM NEUTRAL CITATION:	[2017] VSC 310 First Revision 1 February 2018

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Judicial review — Whether defendant required to accord procedural fairness in determining whether to impose a 12 month ban on prisoner’s wife from visiting all prisons — Ban imposed under s 43(1A) Corrections Act 1986 — Whether decision made in absence of reasonable grounds — Whether grant of relief futile whether extension of time warranted — Supreme Court (General Civil Procedure) Rules 2005 O 56 — Declaration granted — Extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Carr	Theo Magazis and Associates
For the Defendant	Ms S Fitzgerald	Victorian Government Solicitor’s Office

HER HONOUR:

Relief Sought

The plaintiff, A S, is the wife of a prisoner. The prisoner at the time of this proceeding was imprisoned at Barwon Prison. The plaintiff and her husband have a two-year-old son. On 8 July 2016 the plaintiff was banned from visiting any and all Victorian prisons for a period of 12 months until 8 July 2017. It is this decision that is the subject of the application for review.

The plaintiff, by her originating motion pursuant to the Supreme Court (General Civil Procedure) Rules 2015 originally sought:[1]

1.An order for an extension of time to commence the proceeding pursuant to Order 56.02(3);
2.An order pursuant to Order 56.01 in the nature of certiorari, setting aside the decision made by the Defendant on 8 July 2016 to ban the plaintiff from visiting all Victorian prisons for a period of 12 months;
3.An order pursuant to Order 56.01 in the the nature of mandamus requiring the defendant to reconsider whether the plaintiff should be banned from visiting all Victorian prisons.

[1]Originating Motion, filed 25 November 2016, [1]-[3].

At the hearing, Mr Carr appearing for the plaintiff, indicated that the plaintiff would be content with relief in the form of a declaration as distinct from an order in the nature of certiorari. Indeed, he applied for a declaration as primary relief and contended that the plaintiff did not need an extension of time to apply for a declaration. He abandoned the claim for an order in the nature of mandamus.

The grounds originally relied on in support of the relief claimed in the originating motions were as follows:

1.A breach of natural justice occurred in the making of the decision by the defendant.
2.The person that purported to make the decision pursuant to s 43(1A) of the Corrections Act 1986 (Vic) did not have the jurisdiction to make the decision pursuant to that statutory power.
3.The making of the decision was an improper exercise of the power conferred on the defendant by s 43(1A) of the Corrections Act 1986 (Vic) insofar as:
a.The defendant failed to take into account a relevant consideration, namely that the plaintiff was not responsible for trafficking unauthorised articles contrary to s 32 of the Corrections Act 1986 (Vic); and
b.The purported exercise of power by the defendant was so unreasonable that no reasonable person could have so exercised the power.

Mr Carr, indicated that grounds 2 and 3a would not be pursued.

Ground 3b, although not formally abandoned, was only lightly pressed by Mr Carr who relied wholly on his written outline as addressing argument on that ground. Emphasis was placed by Mr Carr on ground 1 as the basis for declaratory relief and/or certiorari.

Mr Carr submitted that there was a strong case for declaring the decision to impose a ban on the plaintiff invalid pursuant to ground 1 for a want of procedural fairness, and that a declaration was an available and appropriate form of relief in that regard.[2] As already mentioned, he submitted that no extension of time was needed in order for the plaintiff to obtain declaratory relief, but that if relief were to be given in the nature of certiorari then there were special circumstances justifying an extension of time under r 56.02(3).
[2]Relying on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [51].

The Central Issues in Dispute

The focal point of the dispute between the parties in their oral argument turned on whether Ms Melissa Westin, General Manager of the Metropolitan Remand Centre,[3] when exercising of powers of the Secretary to the Department of Justice and Regulation under the Corrections Act1986 (‘the Act’) before making the decision which she made on 8 July 2016 under s 43(1A) was bound to accord natural justice to the plaintiff. The effect of the decision made by Ms Westin was to prohibit the plaintiff from visiting all or any Victorian prisons for 12 months from that date (‘the Prison Visit Ban Decision’).
[3]A position equivalent to the position referred to administratively in the Corrections Act1986 as that of the Governor of the Prison. The Defendant advised that the term Governor is no longer used by Corrections Victoria and has been replaced by the term General Manager.

Section 39 of the Act permits the Governor of a prison to exclude relatives or friends from visiting a prisoner for security reasons, and s 43(1) gives certain powers to the Governor to prohibit persons from entering a prison and to order a visitor to leave a prison. However, it was common ground that the Prison Visit Ban Decision imposed in this case was the result of the exercise of a broader, more extensive power vested in the Secretary under s 43(1A) to prohibit a person from entering all or any prisons in Victoria as a visitor. As mentioned, Ms Westin was exercising the powers of the Secretary under s 43(1A) pursuant to an act of delegation by the Secretary.

Section 43 of the Act provides:

Section 43. Governor may refuse or terminate visits for security reasons
(1)If the Governor of a prison believes on reasonable grounds that the security of the prison or the safety of a visitor is threatened, the Governor may—
(a)by order prohibit a person from entering the prison as a visitor; or

(b) order the visitor to leave the prison immediately.
(1A)Without limiting any other power of the Secretary under this Act, if the Secretary believes on reasonable grounds that the good order or security of prisons or the safety of prisoners or visitors to prisons is threatened, the Secretary may by order prohibit a person from entering all or any prisons in Victoria as a visitor.
(1B)An order under subsection (1A) in relation to a matter prevails over any order under subsection (1) or section 39 in relation to that matter.
(2)A person who disobeys an order under this section is guilty of an offence.
Penalty: 5 penalty units
(3)If a person disobeys a Governor’s order to leave a prison , a prison officer may, if necessary use reasonable force to compel the person to leave the prison.

By way of comparison s 39 of the Act includes the following relevant provisions relating to prison bans.

Section 39 Exclusion of visitors for security reasons
(1)The Governor of a prison may by order prohibit a relative or friend wishing to visit a prisoner under sections 37 and 38 from entering or remaining in the prison if the Governor believes on reasonable grounds that the person’s entry into the prison or visit to the prisoner might endanger the good order or security of the prison or the safety of the prisoners.
(2)The Governor of a prison may order a person visiting the prison under sections 37 or 38 to leave the prison if the Governor believes on reasonable grounds that-
(a) the person has committed an offence under s 32; or
(b) the person has contravened the regulations; or
(c)the person has disobeyed an order of the Governor given under this Division

…

It was not in dispute that Ms Westin was authorised to exercise the powers of the Secretary under s 43(1A) of the Act to impose a prison visit ban on a person in circumstances which attracted the operation of the subsection. However, the plaintiff contended that there was an obligation to afford her natural justice as a person affected by the Prison Visit Ban Decision.

The defendant submitted that the decision did not warrant relief by way of judicial review, in that the decision-maker was not obliged to accord natural justice in deciding to impose the Prison Visit Ban Decision.

The defendant submitted that s 43(1A) was not a provision that permitted the implication of natural justice to be accorded to persons affected by the operation of the provision. If natural justice was required to be accorded to the plaintiff the defendant conceded that this requirement had been breached. It was further argued that if certiorari were granted setting aside the decision and if the defendant were to re-determine the matter, the same decision would be made in respect of the plaintiff, so that it was futile to grant the relief sought.

The defendant also argued that an extension of time for bringing the proceeding should be refused as there was no warrant for finding special circumstances justifying an extension of time under r 56.02(3).

Background to the Proceeding

On 23 July 2016, the plaintiff attended Barwon Prison to visit her husband who was held there on remand charged with drug related and other offences. She deposed in her affidavit that she was prohibited from entry to Barwon Prison and was told she had been banned from visiting her husband as a result of an incident on or about 8 July 2016 at Metropolitan Remand Prison.

On 29 July 2016 the plaintiff instructed her solicitor, Mr Theo Magazis, to write to Corrections Victoria seeking clarification of the reason for the refusal of entry to the prison. Accordingly, a letter was prepared by the plaintiff’s solicitor and sent by email to the Deputy Commissioner of Operations, Corrections Victoria, that same day. The letter inquired as to whether any visit ban was in place pertaining to the plaintiff and, if so, as to the basis and grounds for the ban and why the plaintiff had not been given any notice (written or otherwise) of the ban.

A response was emailed from the Operations Directorate, Corrections Victoria[4] to the plaintiff’s solicitor on 1 August 2016. The email stated that the ban was imposed on 8 July 2016, expiring 8 July 2017, and that intelligence had been received that the plaintiff was suspected of trafficking unauthorised articles into prison. The plaintiff was considered to be a risk to the good order and security of the prison. The email attached a copy of a letter signed by Melissa Westin, General Manager, Metropolitan Remand Centre and dated 18 July 2016 (‘the Westin Prison Visit Ban advice letter’).
[4]Affidavit of A S, sworn on 25 November 2016.

The Westin Prison Visit Ban advice letter contained notification of the 12 month ban and stated that the ban was imposed under s 43(1A) Corrections Act 1986 because of an incident on 8th July 2016 in which the plaintiff was suspected of trafficking unauthorised articles constituting a breach of security under s 32 of the Act. The letter indicated that the ban was due to expire on 8 July 2017 and that:

On expiry of the visit ban period, unless another ban is imposed, you will be eligible to request a review of your visit status. If you request a review of your visit status, please fill in the attached form and sent (sic) it to (provide General Manager details).
Permission from a General Manager for you to enter a prison in the future may require that you be restricted to non-contact (box) visits only.
If you have any questions relating to the above information please contact (provide contact details).

The plaintiff deposed that she never received the original Westin Prison Visit Ban advice letter[5] and this fact was not challenged by the defendant.
[5]Affidavit of A S, sworn on 25 November 2016, [7].

On 10 August 2016, the plaintiff’s solicitor again wrote to the Deputy Commissioner of Operations, Corrections Victoria, stating that the plaintiff denied trafficking unauthorised articles into the Metropolitan Remand Centre and complaining that she had been denied natural justice.[6]
[6]Ibid, [8].

Mr Rod Wise, Deputy Commissioner of Corrections Victoria,[7] sent a response letter by email on 15 August 2016 to the plaintiff’s solicitor confirming that a Prison Visit Ban had been imposed on the plaintiff on 8 July 2016 and that it was due to expire ‪on 8 July 2017.[8] The emailed letter noted that the ban had been imposed because of intelligence that indicated that the plaintiff had attempted to traffic unauthorised parcels into the prison. The email referred to Ms Westin having sent the Westin Prison Visit Ban advice letter advising the reasons for the ban, but acknowledged that the letter had been wrongly addressed and may not have been received by the plaintiff. The Deputy Commissioner noted that:

Visit bans are determined following consideration of each case on its merits. Due to the seriousness of this matter which could bring with it criminal charges, Ms Melissa Westin, General Manager, Metropolitan Remand Centre issued [A S] with a 12 month ban. From the information available to me, I support Ms Westin’s decision. [A S] may request a review of her visit ban on 8 July 2017.

[7]Operations Department of Justice and Regulation.

[8]Affidavit of A S, sworn on 25 November 2016, document marked ‘AS-5’.

It was accepted by the defendant that no notice or hearing had been given to the plaintiff prior to the making of the Prison Visit Ban Decision imposed on the plaintiff.

The Prison Visit Ban Decision was said by the defendant to have been made by Ms Westin in compliance with protocols in place for regulating prison visits. Those protocols were purportedly derived from the ‘Commissioner's Requirements’.[9]
[9]Issued December 2015.

There was no issue raised by the parties as to whether Ms Westin, in exercising the powers of the Secretary, was obliged to apply the Commissioner’s Requirements.

A document was tendered in the proceeding forming part of the Commissioner's Requirements headed ‘Management of Visits to Prisoners’. The Commissioner’s Requirements, which were in place at the time of the decision, incorporate reference to the Corrections Act 1986 and the Corrections Regulations 2009, and are signed by the Commissioner.[10]
[10]They are purportedly made pursuant to section 8A of the Act.

The Commissioner’s Requirements provide for written notice to be given to a visitor affected by a Prison Visit Ban, along with a form allowing the prohibited person to seek review of the Prison Visit Ban (a Visit Ban Review Request).[11]
[11]The court was informed that the Visit Ban Review Request form was not enclosed with the letter but the letter was wrongly addressed and not received by the plaintiff in any event.

In the hearing before me it was accepted by the plaintiff that she had in fact posted unauthorised articles to two prisoners at the Metropolitan Remand Centre on 8 July 2016. By affidavit she stated that she had been asked to post the items on behalf of her brother-in-law who was new to Australia, and that she was not aware at the time of posting that the parcels contained boxer shorts lined with buprenorphine. She believed the parcels merely contained clothing. On 2 November 2016, she attended Caroline Springs Police Station and told them what had happened. An affidavit deposed by Mr Magazis annexed a statement made by the plaintiff to police on 12 November 2016, that facilitated the charging of her brother-in-law in respect of the attempt to introduce contraband into the prison.[12] It appears from the affidavit material before the court that the plaintiff was not charged with any offence, but her brother-in-law confessed to asking the plaintiff to post the parcels to two prisoners in the Metropolitan Remand Centre, without telling her they contained contraband. The brother-in-law was then charged with two charges of possession of a drug of dependence[13] and two charges in respect of arranging to have a parcel sent to a prison.[14]
[12]Affidavit of Theo Magazis, sworn 16 December 2016, included in document marked ‘TM-2’.
[13] Contrary to Drugs Poisons and Controlled Substances Act 1981, s 73.
[14]Contrary to Corrections Act 1986, s 32(1)(c).

When the Prison Visit Ban Decision was made by Ms Westin, she did not have the information as to how and why the plaintiff came to send the contraband into the prison. She acted on intelligence which established that the plaintiff was the person who posted the parcels containing the contraband to prisoners at the Metropolitan Remand Centre.

The defendant produced an affidavit from Ms Westin which set out the reasons for the Prison Visit Ban Decision being made on 8 July 2016 and made reference to the Commissioner’s Requirement for the management of visits to prisoners.[15] She deposed that in light of the information now provided in the plaintiff’s affidavit and the affidavit of Theo Magazis the same decision would still be made since the plaintiff in her affidavit takes no responsibility to ensure the items she sends to a prison contain what she believes them to be. The ban would be imposed whether the plaintiff intended to post contraband or was not sufficiently cautious and it was considered that the visit ban was correct and should be maintained. Ms Westin adverted to the risk that the plaintiff would be influenced by her husband or brother-in-law to comply with their requests in the future.
[15]Affidavit of Melissa Sueanne Westin, sworn on 17 January 2017.

The basis for judicial review of the decision to ban the plaintiff

The plaintiff submitted that the following issues needed to be decided relevant to to the complaint that the defendant was obliged to accord natural justice and failed to do so.

Firstly, whether there was an obligation on the Secretary to accord the plaintiff natural justice in relation to the making of the decision to impose the Prison Visit Ban. Secondly, whether relief should be granted or whether it should be refused on the basis that to grant relief would be futile.

The resolution of the issues in this proceeding requires construction of s 43(1A) and identification of the nature of the power being exercised and the interests of the person(s) affected by the exercise of that power.

Mr Carr directed attention to the principles laid down in Annetts v McCann[16] which were affirmed in the Offshore Processing case M61/2010E v Commonwealth:[17]

It can now be taken as settled that when a statute confers power upon a public official to destroy defeat or prejudice a person's rights, interests or legitimate expectations the rules of natural justice regulate the exercise of that power unless excluded by plain words of necessary intendment.[18]

Was the Prison Visit Ban a decision which required the application of principles of procedural fairness?

[16]Annetts v McCann (1990) 170 CLR 596.

[17]Plaintiff M61/2010E v Cth & Ors (2010) 243 CLR 319.

[18]Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ), as cited in Plaintiff M61/2010E v Cth & Ors (2010) 243 CLR 319, [74].

The plaintiff did not seek to assert that her right or interest in visiting her husband in prison was a legal right. It was conceded that there was no legal right to enter a prison. Rather the interest at stake was couched as an important social interest in securing the privilege of entry to a Victorian prison under a legislative scheme that included provision for the welfare of prisoners and for visits to prisoners by friends and family.

Placing reliance on Annetts v McCann, Mr Carr argued that a statutory power of the kind exercised by the defendant under s 43(1A) gives rise to the presumption that the person affected by the operation of the power has a right to natural justice unless there is a clear manifestation of contrary statutory intention, either by the use of express language or necessary implication. He argued that the power exercised by Ms Westin on behalf of the Secretary was conditioned on the presumption that procedural fairness was required because the relevant provisions in the Corrections Act 1986 did not expressly oust the requirement for the decision maker to act fairly and accord natural justice.

Mr Carr relied on M61/2010E v Commonwealth (‘M61/2010E’) and the subsequent migration case S10/2011 v Commonwealth[19] (‘S10/2011’) as providing illumination of the kinds of claims that may give rise to an interest falling short of a legal entitlement. The plaintiffs in M61/2010E were directly affected by the refusal of the Minister to exercise his discretion in their favour because their deprivation of liberty was prolonged when the Minister failed to do so.
[19]Plaintiff S10/2011 v Minister of Immigration and Citizenship & Or (2012) 246 CLR 636.

In S10/2011, the High Court held that the question to be asked was whether the failure by the Minister to consider the exercise of the dispensing powers, and the Minister’s consequent failure actually to exercise the powers in question, was apt to adversely affect a sufficient interest of a party seeking the exercise of those powers in favour of that party. The court referred to and adopted Brennan J's description in Kioa v West[20] of the kinds of interests which may be affected:[21]
[20]Kioa v West (1985) 159 CLR 550.
[21]Plaintiff S10/2011 v Minister of Immigration and Citizenship & Or (2012) 246 CLR 636, [66].

The presumption that the principle of natural justice conditions the exercise of statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation.

and

There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests – licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials – intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.

Mr Carr submitted that the nature of the power being exercised by Ms Westin, who was exercising the powers of the Secretary to the Department of Justice and Regulation, was an interest governed by a statutory scheme that provided for discretionary privileges and benefits. As such, it was an interest of a nature captured by the test elaborated in Kioa.

Mr Carr argued that s 37 of the Corrections Act 1986 permits family or friends of a prisoner to enter a prison and visit a prisoner at the discretion of the local Governor. The plaintiff had been permitted visits, and had been conducting visits, until the Prison Visit Ban Decision was imposed. Mr Carr drew a comparison with the migration cases M61 and S10. In those cases, the relevant provisions in the Migration Act 1958 (Cth) were referable to an interest that could be characterised as an interest to obtain the favourable exercise of the Minister’s discretion. Mr Carr submitted that the interest in the present case was also an interest to obtain the favourable exercise of the decision-maker’s discretion.

Mr Carr further relied on the New South Wales decisions of Nicopoulos v Commissioner for Corrective Services[22] (‘Nicopolous’) and Reed v Commissioner for Corrective Services[23] (‘Reed’). The Commissioner for Corrective Services in New South Wales had a process in place for affording a degree of natural justice through a show cause notice. However it was alleged in each case that there had been a denial of procedural fairness in respect of prison visit bans imposed on the legal practitioners who were the plaintiffs in each case.
[22][2004] NSWSC 562.
[23][2008] NSWSC 161.

Referring to Nicopoulos, Mr Carr submitted that Smart AJ in obiter accepted that the Commissioner's decision to ban the plaintiff attracted the principles of procedural fairness but decided on the particular facts of that case, that it was one of those rare cases where the content of the rules of procedural fairness had been elided to nothing. His Honour accepted that the interest at stake was of importance because it affected the legal practitioner’s livelihood[24] and that judicial review was available to the plaintiff in respect of the exercise by the Commissioner of his powers under the relevant regulations.[25] Indeed the Commissioner had conceded that if the rules of procedural fairness had not been elided to nothing then the plaintiff was entitled to succeed on the basis of absence of procedural fairness.[26] However, Smart AJ had regard to confidential affidavits which indicated that the incident giving rise to the ban was not an isolated incident involving the plaintiff, and that the decision had not been made for an improper purpose or in bad faith and was not unreasonable, and moreover, that any disclosure of the basis for the decision would have required the provision of highly sensitive information that was protected from disclosure by public interest immunity.
[24][2004] NSWSC 562, [111]-[112].
[25]Ibid [113].
[26]Ibid [116].

The plaintiff in Reed also sought judicial review of a decision of the Commissioner for Corrective Services to ban her from visiting prisons in New South Wales. The plaintiff succeeded in demonstrating that the decision was not validly made, and Fullerton J quashed the Commissioner’s decision.

In Reed, Fullerton J decided that, despite the need to give full scope to the Commissioner’s managerial powers, it remained the fact that the exercise of power to ban Ms Reed, a legal practitioner, from prison visits must be viewed as having serious consequences for the plaintiff in her professional life.[27] Her Honour considered Barac v Mood,[28] a case in which the Commissioner for Corrective Services had excluded a family visitor from making visits due to her repeated breaches of the regulations relating to bringing contraband into the prison. His Honour Ipp JA, presiding in that case, did not conclude that the decision under consideration could not give rise to judicial review, but found that the Commissioner’s decision was properly made.
[27]Reed v Commissioner for Corrective Services [2008] NSWSC 161, [39].
[28][2006] NSWSC 738.

Anticipating an argument that Nicopoulos and Reed might be sought to be distinguished because each of the plaintiffs in those cases was a legal practitioner, Mr Carr argued that the spousal relationship of the plaintiff meant that the interest she held was clearer and stronger than for a professional visitor. He argued that the interest of a spouse wanting to visit her husband was of even greater importance than that of a solicitor and that the relevant range of interests was not confined to mere pecuniary or professional interests. The plaintiff’s interest was a relevant interest because it went to the heart of the welfare of the prisoner and his family.

Mr Carr pointed out that s 47(1)(k) of the Act provides each prisoner with an enforceable statutory right to receive at least one visit, which is to last at least half an hour in each week, under s 37 of the Act. This was an indication of the important public interest adhering to the treatment of prisoners and their welfare, in connection with visits by family or friends. This interest would be especially significant if the visitor was the prisoner's spouse. The public interest and security of prisons would not be jeopardised by providing natural justice to a person for whom a 12 month Victoria-wide ban is under contemplation, and would more likely assist in the maintenance of security and good order by providing a process for information to be but put forward relevant to the subject matter of the ban.

Mr Carr submitted that whilst there may be cases where a dispute will arise as to the content and extent of the obligation to afford procedural fairness, if there is sensitive material under consideration, or in cases requiring swift and immediate action, this consideration was not relevant to the current case. Instead the defendant’s argument was simply that procedural fairness was not required to be accorded in any form for decisions under s 43(1A) of the Act.

So, Mr Carr argued, whilst it might be successfully argued that a decision to exclude a person in the course of a single visit might not be the kind of decision that is reviewable for a want of procedural fairness, because it might fall to be characterised as a routine managerial decision, a decision to ban a person from entering all Victorian prisons for a period of 12 months requires the decision maker to afford procedural fairness because of the social welfare impacts and broader public interest connected to decisions of that character.

In reference to the structure of the Act and the absence of any review procedure in the provisions dealing with the the power of the Secretary or their delegate to prohibit prison visits, Mr Carr argued that, given the wide range of matters covered in the Act, it was not useful to interpret silence within s 43(1A) as a basis for ousting the presumption of a right to procedural fairness, even if other parts of the Act which relate specifically to prisoners expressly require procedural fairness. Governor’s hearings for prisoners who are alleged to have committed breaches of prison discipline were cited as an example of an express requirement for procedural fairness in another part of the Act.

Mr Carr also sought to meet the defendant’s argument based on futility, namely that Ms Westin would only make the same decision again, if required to provide natural justice to the plaintiff. Mr Carr noted that the defendant in making the futility argument sought to rely on the information contained in the plaintiff’s own supporting affidavit accompanying her application for judicial review, whereas when Ms Westin made the Prison Visit Ban Decision, she did not have that information. Mr Carr pointed out that that information showed the steps taken by the plaintiff to report her brother-in-law’s crime to police. This behaviour demonstrated the plaintiff’s willingness to cooperate with the authorities. It could not be assumed that Ms Westin would have made, or would make the same decision if armed with that information or that the plaintiff’s explanation for posting the articles to the prison was of no value to the decision-making process.

The Defendant’s Arguments against Judicial Review of the Prison Visit Ban Decision

Ms Fitzgerald argued that the power that was exercised under s 43(1A) was not a power that was conditioned by a requirement to afford procedural fairness to persons affected by a prison visit ban and specifically that the plaintiff was not required to be afforded natural justice when the Prison Visit Ban Decision was made. The Prison Visit Ban Decision was made in accordance with the Commissioner's Requirements[29] which set out the policy to be followed in relation to the imposition of entry bans under s 43(1A) of the Act.[30]
[29]Commissioner’s Requirement “3.2.1: Management of Visits to Prisons”, December 2015.
[30]Ibid, Part 5.4.

Ms Fitzgerald sought to characterise the decision to ban the plaintiff from visiting all or any Victorian prisons for a period of 12 months as a decision of an administrative or managerial nature of the kind referred to in Vezitis v McGeechan.[31] In that case, Taylor J addressed the complaint of a prisoner claiming that the Commissioner of Corrective Services was in breach of the regulations in making a decision to administer more stringent security measures in managing the plaintiff’s internal prison movements. The complaint was that the measures taken were in breach the regulations. The decision was made, however, on the basis that the prisoner was one of a number of prisoners involved in a prison riot and therefore more stringent security measures were required in managing the plaintiff’s movements. His Honour held that powers granted and duties imposed under the Prisons Act 1952 (NSW) were drafted in very wide terms, and that the manner in which the Commissioner carried out his duties ought not be examined by a court, unless there was a clear infringement of the Act or the regulations. He found that additional security measures taken against the prisoners involved in the riot did not constitute a breach of the regulations. Rather, the Commissioner’s foremost obligation under the Act was to ensure the security of the prison. Therefore, measures taken in pursuit of that goal were within the Commissioner’s discretion and not examinable by the court. The defendant mentioned other cases where relief through judicial review was denied to prisoners in Victoria and elsewhere.[32]
[31][1974] 1 NSWLR 718, 721.
[32]Citing Rich v Groningen (1997) 95 A Crim R 272; Bromley v Dawes (1983) 34 SASR 73; R v Classification Committee , Ex parte Finnerty (1980) VR 561.

Ms Fitzgerald referred to Anderson v Pavic,[33] in which the Court of Appeal confirmed that the jurisdiction of courts to supervise the administration of a prison is a narrow one. Nettle JA (as he then was) said, at [32]:

Prison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue interference from the courts.

[33][2005] VSCA 244.

Ms Fitzgerald also relied on a statement by McInerney J of the Supreme Court of New South Wales, in Kelleher v Commissioner, Department of Corrective Services:[34]

The exercise of powers relating to prisoner classification and separation, the transfer from one part of a prison to another, transfers between prisons, conditions on visits or access to certain conditions or facilities such as education, recreation and supply of condoms have all been characterised as administrative and managerial in nature rather than punitive and judicial. Consequently they have been held not to give rise to any right, interest or legitimate expectation enforceable by judicial review in the ordinary courts.

[34][1999] NSWSC 86, [10].

Ms Fitzgerald submitted that these principles were recently affirmed by McDonald J in Moran v Secretary of the Department of Justice and Regulation.[35] She argued that the Corrections Act1986 is not to be interpreted as contemplating a significant degree of judicial supervision over the business of the control and management of a prison or of who was allowed entry to a prison.
[35][2015] VSC 593, [26].

Ms Fitzgerald submitted that interpretation of the Corrections Act1986 as a whole led to the conclusion that the power exercisable by the Secretary under s 43(1A) was not subject to a requirement to accord natural justice to persons affected.

She said the plaintiff was not someone who had a legal right to visit Victorian prisons and that s 32 of the Act makes it an offence for a person to enter a prison without authority. Section 37 of the Act empowers the prison Governor to permit a prisoner’s friends or relatives to visit the prisoner, whilst s 47(1)(k) of the Act bestows on prisoners the entitlement to receive at least one half hour visit per week pursuant to s 37.

The Secretary’s powers to impose entry bans under s 43(1A) were to be viewed, Ms Fitzgerald submitted, in light of s 7 of the Act, which stipulates the functions of the Secretary, and which provides that the Secretary is responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders.

Ms Fitzgerald also referred to the duties of prison officers and of the Governors of prisons under ss 20 and 21.

In addition she submitted that there is no duty owed to a prisoner's relatives or friends, and that those people do not have any interests or rights attracting the need for procedural fairness.[36]
[36]Defendant’s Submissions, [25]-[26].

She placed emphasis on the inclusion of the phrase, ‘conditions on visits’ in Kelleher in the list of matters described as being of an administrative or managerial character, not subject to judicial review.[37]
[37]Kelleher v CommissionerDepartment of Corrective Services [1999] NSWSC 86, [10]-[11].

Ms Fitzgerald contrasted the provisions dealing with access to prisoners with other parts of the Act, allowing for Governor’s hearings for prisoners for internal disciplinary matters. She submitted that since those provisions expressly imposed a requirement of procedural fairness, the absence of any such express provision in s 43(1A) should be seen as purposeful.[38] She submitted that the nature and subject matter of the provisions regulating prison access compelled the conclusion that natural justice has been displaced by this provision.
[38]Defendant’s Submissions, [29].

Ms Fitzgerald sought to distinguish Nicopoulos and Reed as being based on a different type of visitor—a legal practitioner—and therefore having a stronger public policy basis for upholding a right to judicial review than a person in the position of the spouse of an inmate.

She therefore argued that s 43(1A) should be interpreted as being inconsistent with a requirement to accord natural justice.

Analysis as to whether the defendant was obliged to afford the plaintiff natural justice in making the Prison Visit Ban Decision

As it was perceived in 1949, the rationale behind distinguishing between a mere managerial and/or administrative decision of a prison official and one that enlivens judicial review, was articulated by Dixon J in Flynn v R:

If prisoners could resort to legal remedies to enforce gaol regulations, responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice.[39]

[39](1949) 79 CLR 1, 8.

In many of the cases concerning prisons and prisoners in which judicial review has been denied, the courts have focused on the risk of detriment to the efficiency and authority of day-to-day prison management and to the safe and secure operation of the prison.

It is important to consider the nature and character of the power reposed in the defendant under s 43(1A) and the consequences of imposing the 12 month ban without affording natural justice to the plaintiff.

It is also appropriate to consider the purposes of the Corrections Act 1986, and the legislative intention gleaned from s 43(1A) within the context of the Act as a whole, including those provisions that deal with the opportunity for visits to be conducted with prisoners and the rights of prisoners to receive visits.

The purposes of the Act are set out in section 1:

to provide for the establishment management and security of prisons and the welfare of prisoners; and
to provide for the administration of services related to community-based corrections and for the welfare of offenders; and
to provide for other correctional services.

In pursuit of these broad ranging objectives, the Act covers an array of subjects ranging from matters as diverse as correctional services agreements, interstate transfer of prisoners, prison industries and parole. However, within this wide-ranging framework, Pt 6 deals with management and administration of prisons and includes Division 2—Access to prisons. This Part deals with prison visitors. Prisoner’s rights are dealt with in s 47 of the Act. Many matters relating to prisoner welfare and human rights are listed, including matters related to physical and mental health, education, clothing, religious observance, the right to expeditious classification, the right to make complaints to outside agencies, to access legal advice, and, as observed by the plaintiff, a right pursuant to s 47(1)(k) to one half hour visit each week under s 37.

Sections 37 and 38 relate to visits by relatives, friends (s 37) and family (s 38).

Section 37 provides:

(1)With the permission of the Governor, a prisoner’s relatives or friends may enter a prison and visit the prisoner.
(2) A relative or friend who visits a prisoner may see and speak with the prisoner but is not permitted to touch the prisoner , unless the visit is part of a contact visiting programme or residential visiting programme.
(3) The Governor may give to a visitor under this section such orders as are necessary for the management and good order and security of the prison.

(4) A visitor who disobeys a Governor’s order is guilty of an offence
Penalty: 5 penalty units

Sections 38(1) and (2) empowers the Secretary to approve contact visiting programmes for a prisoner’s family and friends and to approve residential visiting programmes for a prisoner’s family.

Section 38(3) provides that the Governor of a prison must, in accordance with the regulations, bring to the attention of all prisoners eligible to take part in a contact visiting programme or residential visiting programme the privileges offered by the programme.

Section 38(4) defines family member to include a near relative of the prisoner and any other person who has a long standing close personal relationship with the prisoner.

Section 47(1)(k) includes the following wording:

S 47 Prisoner Rights
(1) Every prisoner has the following rights.
…
(k)the right to receive at least one visit which is to last at least half an hour in each week under section 37.

…

The right referred to under s 47(1)(k) appears therefore to be a right to a weekly visit, but not necessarily a right to a weekly contact or residential visit.

The link between the statutory right of prisoners to receive visits under s 47(1)(k) and the facilitation of visits by relatives or friends of a prisoner under s 37 is consistent with the stated purposes of the Act to not only provide for the management and security of prisoners, but also to provide for their welfare. The fact that Parliament enshrined a minimum standard for the allowance of visits to individual prisoners as a statutory right under s 47(1)(k) demonstrates recognition of the importance attached to the maintenance of links between prisoners and a particular class of prison visitors. These minimum requirements are to be met for every prisoner whether on remand (and entitled to the presumption of innocence) or under sentence.

The purpose behind s 47(1)(k) and s 37 which operate together to facilitate visits by a prisoner’s relatives and friends is protective and supportive of the welfare of individual prisoners, but it is also indirectly recognises the interest of persons seeking access to an imprisoned relative or friend.

The discretion reposed in the Secretary to make regulations for a contact visiting programme for the family, and friends of a prisoner and a residential visiting programme for the family of a prisoner, demonstrates the importance the legislature has placed on opportunities for those who share a bond with a prisoner to be granted access to the prisoner. Although not directly relevant to the case before me it is worth noting that the most extensive level of access which may be provided for by the Secretary in approving visiting programmes under ss 37 and 38 is that which may be provided under s 38(2), limited only to family of a prisoner.

Hence the statutory scheme for permitting visits to prisoners recognises the significance of relatives or family of prisoners, consistently with those objects of the Act that relate to the welfare of prisoners.

It is also significant that s 38(3) casts a mandatory obligation on the Governor of a prison, to (in accordance with the regulations) bring to the attention of all prisoners eligible to take part in a contact or residential visiting programme the privileges offered by the programme. This shows a legislative purpose that places importance on the facilitation of visits to prisoners by relatives and friends.

The discretion reposed in the Secretary under s 43(1A) is aimed at addressing threats to the good order or security of prisons generally, and not just in relation to a specific prison and threats to the safety of prisoners and prison visitors generally, and not in respect of a specific prison. It is a power given to the Secretary and not to the Governor of a prison (in that capacity), and it is capable of being exercised in relation to a wider range of circumstances than the powers given to a Governor under s 39 and s 43(1). The power to be exercised under s 43(1A) is prospective and addresses itself to prohibition from entry to all or any prisons. In this regard, the discretion is quite different from that which may be exercised by a prison Governor under s 39 whereby a relative or friend wishing to visit a prisoner may be prohibited from entering or remaining in a particular prison on a particular occasion.

Section 43(1A) also differs from the power which may be exercised by a prison Governor under s 43(1) which allows the Governor of a prison to order that a person be prohibited from entering the prison as a visitor or allows the Governor to require a person to leave the prison, again applying in relation to a particular prison. The power under s 43(1) appears to be more appropriate for circumstances when the visitor is already present within the prison or is at the entry point. The power under s 43(1) may be capable of being applied by the Governor to a range of circumstances, some of which might have nothing to do with the prison visitor or the prisoner that person intends to visit. An example might include a prison lockdown or bomb threat. However it might also include circumstances referable to a particular prison visitor or prisoner at a prison.

Section 39 is more closely aligned with s 37. Just as s 37 gives the Governor power to permit visits by a prisoner’s relatives or friends, s 39(1) empowers the Governor to prohibit a prisoner’s relatives or friends from entering a prison or remaining in a prison to visit a prisoner. Again, it is a more localised power reposed in the Governor of the relevant prison. It directs itself to the nature of the visitor and the nature of the visit as it is believed to impact on the safety of prisoners in, or the good order or security of the particular prison. Subsection (2) also empowers the Governor to order a visitor who is visiting pursuant to ss 37 or 38 to leave the prison based on a belief on reasonable grounds as to particular matters. This power appears directed to the circumstances of a particular visit or visitor and may arise as a result of the conduct of the visitor during the visit. However, it may also fall to be exercised if the Governor were to become aware of the visitor’s presence within the prison and the conditions precedent to the exercise of power by the Governor were to arise at that time.

Although s 43(1A) may not interfere with any common law right, it does in my view interfere with the statutory right conferred by s 37(1) of the Act, namely the right of a friend of relative of a prisoner to visit that prisoner, subject only to the permission of the Governor of the particular prison in which the prisoner is housed. That right may be described a conditional right. Whether or not it amounts to a “legal right” within the meaning of the principles discussed in Kioa need not be decided, but the conditional right amounts to a sufficient “interest” for present purposes. The plaintiff did not argue that she had a common law right to be in the company or presence of her husband.

It is apparent from reviewing the provisions which relate to visits by friends and relatives contained within ss 37, 38, 39 and 43 of the Act that access to prison visits by family and friends of prisoners is subject to the discretion of the Governor or the Secretary, and that parliament has seen fit to enact a range of specific provisions on this subject. Section 43(1A) should be interpreted in the circumstance of this case within the context of the statutory scheme as it relates to visits, and the interrelationship between the provisions enabling the granting of privileges to visit or enabling prohibitions to be imposed.

The Plaintiff placed emphasis on the decisions in Nicopoulos and Reed in urging that the interest residing in the plaintiff is one that is implicitly recognised as a relevant interest under the Act. It is accepted that the nature of the prison visit bans in Nicopoulos and Reed raised some factors which are not common to the case before me, and that there are some features of the regime relating to visits by legal practitioners, under the New South Wales legislation that differ from the provisions in the Victorian Corrections Act 1986. However, the power exercisable under s 43(1A) is founded on similar conditions for its exercise to that which was exercised by the Commissioner for Corrective Services in Nicopoulos and Reed under the relevant regulations considered in those cases.[40] In both jurisdictions, the basis for exercising the discretion to impose the prohibitions referred to the maintenance of the good order and security of a prison or prisons. In the present case, s 43(1A) also directs itself to the safety of prisoners and visitors.
[40]Crimes (Administration of Sentences ) Regulation 2001 (NSW), reg 105.

Whilst Nicopoulos and Reed referred to jurisprudence suggesting that there are limitations on judicial review of decisions relating to the discipline, administration and internal management of prisons, a less restrictive approach was noted to have arisen in more recent cases. Acting Justice Smart in Nicopoulos referred to Leech v Deputy Governor of Parkhurst Prison[41] as an example of a case in which the House of Lords decided that judicial review was available for certain decisions made by a prison governor, for example if a prisoner’s term of imprisonment could be extended for a prison disciplinary offence. The House of Lords in Leech looked beyond the broad label of ‘administration’ or ‘management’ and sought to focus on the decision under challenge and the quality and attributes of the decision.
[41]Leech v Deputy Governor of Parkhurst Prison [1988] AC 533.

Acting Justice Smart noted that in the case before him, the quality and attributes of the acts of the Commissioner exercising his power to ban the plaintiff from prison visits were particularly serious for the plaintiff’s practice and for the inmate client who would have to seek legal representation elsewhere. His Honour also referred to the public interest in the accused being adequately represented.[42]
[42]Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562, [111]-[112].

Whilst in Nicopoulos and Reed the courts recognised the importance of the interest held by each of the plaintiffs as a result of the adverse effect on the practice of their profession, I am persuaded that the exercise of the Secretary’s power under s 43(1A) is also capable of having significant consequences for the welfare of family members in the case of a ban imposed on a family member, especially a marital partner. In this case the plaintiff routinely took their small child to prison visits with her husband and, according to material in her affidavit, this could not feasibly be done by someone else.[43]
[43]Affidavit of A S, sworn on 25 November 2016, [15].

In addition to being a decision apt to affect a significant social interest of the prisoner’s family (in this case his spouse and child), the decision under consideration is likely to have a significant effect on the welfare of the prisoner. I am not persuaded that the case before me entails a less important interest than in Nicopoulos or Reed or that judicial review is not enlivened in the present case.

It is instructive to consider Kelleher more closely. In that case McInerney J was dealing with the interests of a prisoner who sought permission to leave prison on a number of occasions for tattoo removal procedures. His Honour focused his examination of the authorities on the status of the plaintiff as a prisoner, and noted that although the cases showed a reduced scope for judicial review of decisions relating to prisons, the authorities on the question were not uniform. He observed that the courts tended to determine the right of a prisoner to seek judicial review in line with ordinary principles of statutory interpretation.[44]
[44]Kelleher v CommissionerDepartment of Corrective Services [1999] NSWSC 86, [7].

Whilst referring to such cases as Flynn v R, Bromley v Dawes and Vezitis v McGeechan which tended to read down the rights of prisoners unless expressly given under legislation, his Honour noted that the approach of courts has since become more interventionist and that decisions such as Vezitis may now need to be treated with some reserve.[45]
[45]Ibid [13]. In McEvoyv Lobban [1990] 2 QdR 235, Macrossan LJ had observed an increased tendency of the courts to undertake judicial review of orders made by prison authorities. For recent Victorian authority on this point, see Knight v Money [2015] VSC 105, [20].

Justice McInerney examined the provisions of the Correctional Centres Act1952 (NSW), and referred to the detailed rights of prisoners enshrined in that Act regarding exercise, clothing, diet, separation of inmates and medical treatment.[46] His Honour noted that the tattoo removal procedure was a novel request, and was not for the purpose of medical treatment as permitted under s 16(1), so therefore the decision of the Commissioner in those circumstances fell to be regarded as a discretionary administrative decision in which the court was not empowered to intervene.
[46]Kelleher v CommissionerDepartment of Corrective Services [1999] NSWSC 86, [19].

Although the defendant in the case before me placed emphasis on the phrase ‘conditions on visits’ referred to by McInerney J as being among the matters that may be regarded as of an administrative or managerial character, it should be observed that all prison visits will be subject to some kind of conditions by the very nature of what is entailed when an inmate interacts with a visitor from outside the prison. Conditions are likely to apply to both the inmate and the visitor. But that is a different proposition from characterising a decision to ban a family member from visitation at any Victorian prison for 12 months, as a mere administrative or managerial decision that can be made without any procedural fairness towards the party affected.

The fact that Kelleher was focused on the rights of an individual prisoner and on a novel request for a procedure to be conducted outside of the prison makes it readily distinguishable from the present case.

In the extract from the judgment of Nettle JA in Anderson v Pavic referred to by the defendant, his Honour was considering the exercise of power by the prison authority to treat certain days of disruption at the prison as emergency management days to the benefit of the plaintiff prisoner. His Honour also said:

The questions of whether the lockdown and the change in classification were an emergency or other circumstances of an unforeseen and special nature was plainly a question of fact and degree. … Once it is seen to be so it is, in my view, clear from the evidence, particularly the evidence given by Mr Anderson, that it was open to the Commissioner to decide that neither the lockdown, nor the reclassification, was an emergency or other circumstance of an unforeseen and special nature.[47]

[47]Anderson v Pavic [2005] VSCA 244, [32].

Elaborating his views about the reduced scope for judicial review of internal management decisions his Honour said:

As at present advised and, of course, without having reached a concluded view on the subject, it strikes me as unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible.[48]

[48] Ibid [33].

Again the focus there was on the rights of an individual prisoner, and the case concerned an administrative decision about a factual question reached by the prison manager. As such, it is distinguishable from the case before me.

The case of R v Classification Committee; Ex Parte Finnerty[49] involved the applicant seeking certiorari and/or mandamus against a prison classification committee in respect of a decision to transfer him from Beechworth Prison to Pentridge Prison. The decision involved a higher classification being accorded to the applicant in part due to the committee being made aware that New South Wales extradition proceedings would be brought against the applicant to face multiple outstanding charges there. The applicant complained he had been denied natural justice. This case was heard and determined in 1980. Justice Kaye examined the statutory scheme in existence at the time and found that the functions of the classification committee were administrative in character and that it was clear that the regulations relating to classification had not been made with the intention of requiring the committee to apply the rules of natural justice. His Honour also found that an examination of the regulations and the purpose for which they were made did not permit the conclusion that the prisoner obtained any legal right as a result of a classification decision or that his status as a prisoner was altered by the decision. Therefore natural justice was not required. Justice Kaye’s decision placed significant focus on the applicant’s status as a prisoner and the purposes of the regulatory framework in ensuring the safe custody of prisoners in circumstances where a lower classification enabled prisoners greater access to employment and programmes which were conducted outside the prison.
[49] [1980] VR 561.

McDonald J in Moran considered an application by the plaintiff for judicial review of a decision to move her from the Margaret Unit at the Dame Phyllis Frost Centre where she had more autonomy, to another unit within the same prison, against her wishes. The legal basis for the decision to transfer her had as its proper foundation ss 20 and 21 of the Corrections Act1986. Section 20 inter alia imposes a duty on prison officers to take all reasonable steps for the security of the prison and for the safe custody and welfare of the prisoners. Section 21 allocates overall responsibility to the Governor of a prison for management, security and good order of the prison and the safe custody and welfare of prisoners. His Honour noted that although s 47 of the Act set out a number of rights held by prisoners, none of the prescribed rights dealt with the issue of accommodation within a prison or the regulation of transfer within a prison. Ms Moran had no legal right to be accommodated in the Margaret Unit, and that had to be considered in determining the existence or parameters of any obligation to accord her procedural fairness.[50] The decision to transfer the plaintiff had been made in light of significant disruption to the security and good order of the prison that had been occasioned by her placement in the Margaret Unit.
[50]Moran v Secretary of the Department of Justice and Regulation [2015] VSC 593, [24], referring also to R v Classification Committee; Ex Parte Finnerty (1980) VR 561.

His Honour decided that the Governor’s decision did not enliven judicial review and that the nature of the decision was of a type routinely made in the course of the management and administration of a prison. As such, it did not require procedural fairness to be accorded to the plaintiff. In giving his reasons, his Honour’s focus was on consideration of the rights of the individual prisoner under the Act and on the statutory functions of those officers, including the Governor who had statutory responsibility for the management, security and good order of the prison, and the safe custody and welfare of prisoners.

The absence of any specific legislative provisions within the Act dealing with transferring the accommodation of prisoners within a prison is to be contrasted with the current case where there are numerous specific provisions relevant to the subject matter of prison visits. The interest considered by McDonald J was the interest of an individual prisoner, and thereby a person whose liberty has been restricted by order of law and was in the safe custody of the prison authorities. In the case at hand, the interest is that of a visitor. A visitor is a person at liberty who only comes under the jurisdiction of the Corrections Act 1986 in certain defined circumstances.

The case of ID, PF and DV v Director General, Department of Juvenile Justice[51] was one in which Johnson J considered the validity of decisions made to transfer the three plaintiffs from juvenile justice centres to adult prison. It was submitted on behalf of the plaintiffs that the decisions to transfer the plaintiffs potentially destroyed or impaired a right, interest or legitimate expectation of each of the plaintiffs and that the relevant authority was being exercised to the plaintiff’s individual disadvantage.[52] There was serious disadvantage by use of the power under s 28 of the Children (Detention Centres) Act 1987 (‘the CDC Act’) in that each plaintiff might have expected from the terms of the sentence imposed on them that they would serve the entire non-parole period in juvenile detention.
[51][2008] NSWSC 966.
[52]Ibid [176].

The plaintiffs relied on the objects of the CDC Act as strengthening the argument for procedural fairness to be applied to decisions under that Act. The objects of that statute included paramount consideration to the welfare and interests of the person on remand or subject to control. Various provisions were aimed at consideration of the rehabilitation needs of detainees, together with preservation of satisfactory relationships between detainees and their families. It was also argued that the CDC Act did not manifest a clear intention to exclude the operation of the rules of procedural fairness simply because it gave a broad statutory power under s 28 of the CDC Act to transfer a detainee.

Justice Johnson held that procedural fairness ought to have been accorded to each plaintiff before deciding whether the transfer decision should take place under s 28 of the CDC Act.[53] He relied on the statutory scheme created by the CDC Act and decided that the decision was not equivalent to transfer from one classification to another within an adult prison. An order pursuant to s 28 was not a prison management decision. He observed that a juvenile may suffer ‘obvious and identifiable detriments’ if they are transferred to an adult prison;[54] and such a transfer involved ‘a fundamental change to the nature and quality of detention to which the detainee would be subject, with the likelihood […] that a longer period of custody would result.’[55]
[53]Ibid [187], [289].
[54]Ibid [191].
[55]Ibid [192].

Justice Johnson also noted that academic authors have observed that it is not easy to reconcile the prison cases with the High Court’s approach to procedural fairness in Kioa v West, other than being based on a concern about impairment of important statutory powers.[56]
[56]Ibid [195].

From a review of the authorities and a consideration of the legislative scheme in the Corrections Act 1986 I am persuaded that the discretion exercised by the Ms Westin acting under delegated authority of the Secretary under s 43(1A) was of a kind enlivening judicial review and attracting the principles of procedural fairness.

The statutory attention paid to visits and visitors supports the conclusion that whilst permission for visits may be routinely granted, a decision to prohibit visits is not a routine day to day decision. The wording of s 43(1A) is suggestive of a different nature of power being exercised than that which was exercised under the provisions referred to in Moran or in the other cases referred to by the parties where judicial review was not available.

The argument that the court should infer a parliamentary intention to oust natural justice in s 43(1A) because a right of review was not expressly included, whereas other parts of the Act allow natural justice, is unpersuasive. The defendant referred to Part 7 of the Act—Prison discipline, which permits Governor’s hearings. The nature of the power being exercised under that part of the Act is qualitatively different from the powers being exercised by the Secretary under s 43(1A) with respect to prison visitors. The wide range of subject matter dealt with in the Act does not support the defendant’s argument in this regard.

In Commissioner of Police v Ryan,[57] the New South Wales Court of Appeal said that the expression of an obligation to give disclosure in relation to one part of a statutory scheme is unlikely to give rise to a significant inference that its omission in another part of the scheme was deliberate in the sense that it indicated an intention that, in the latter case, the implied obligation to accord procedural fairness did not operate or was diminished.[58]
[57][2007] NSWCA 196.
[58]Ibid [28], citing Minister for Immigration and Multicultural Affairs; Ex parte Miah(2001) 206 CLR 57 at [126] and [139].

In focusing attention on the statutory provision regulating the Secretary’s power to permit or prohibit visits under s 43(1A), I have already referred to the way in which the nature of the interest under consideration in many of the decided cases differs markedly from the interest of the plaintiff in the present case.

The statutory or regulatory basis for the exercise of power also demands attention, and may be different in cases which only turn on the interests of a prisoner. In Moran, the power to transfer the plaintiff was derived from the provisions contained in Pt 5 of the Act, which bears the title ‘Prison officers and other officers working in prisons’. These provisions describing the duties of prison officers and the Governor were construed in Moran as granting certain implied managerial or administrative powers that might count as ‘reasonable steps’ towards the fulfilment of the legislative objectives for the person exercising those roles. In the case before me it was the powers of the Secretary that were employed under s 43(1A) pursuant to specific considerations under that provision.

The defendant in the case before me sought to rely on ss 20, 21 and 22A in Part 5 of the Act relating to the statutory powers and duties of prison officers and the Governor, on the basis that those provisions showed that decisions must be made in accordance with the objectives of managing the security and good order of the prison and the safe custody and welfare of prisoners. However, this involved a degree of conflation between the Governor of a prison exercising the powers under Pt 5 as a Governor , with the exercise by Ms Westin (who is the Governor of a particular prison) of the powers of the Secretary under a specifically worded provision. The powers exercisable under Pt 5 do not assist in construing the obligations imposed on the decision-maker, exercising the powers under s 43(1A), which is in Pt 6 of the Act.

The wording of s 43(1A) is explicitly directed to the Secretary to the Department of Justice and Regulation, not merely an officer of the prison, giving recognition to the significance of the discretion to be exercised, within the management hierarchy, at a position above that of prison Governor. Furthermore the power is one that must be exercised on reasonable grounds, which implies a process of reasoning to be employed that is more considered than that which may be entailed by day to day routine decisions.

The power granted under s 43(1A) is extensive. It enables the Secretary to impose an indefinite ban on a visitor from visiting all or any Victorian prisons. It is not difficult to conceive of circumstances where a spouse of a prisoner serving a life sentence could be subject to an indefinite ban, which would mean that any relationship might only ever be able to be maintained through letter-writing or telephone contact if permitted. Whilst it is not for this Court to comment on whether such circumstances could be justified in a particular case, it is difficult to accept that the intention of Parliament was to displace a requirement to accord procedural fairness for a decision of that nature.

Although the matter has no direct bearing on the correct construction of s 43(1A) in this case, I note in passing that the Commissioner’s Requirements do appear to pay heed to principles of natural justice by setting out a process for informing the intended recipient of a prison visit ban in writing as to the decision, the reasons for the decision, the length of the ban and the person applying the ban; and notifying the recipient of the right to seek a review by forwarding a Visit Ban Review Request. I was informed by the defendant that there is an entitlement to seek immediate review of the decision[59] upon notification of the ban in accordance with 5.6.1 of the Commissioner’s Requirements which state that ‘where a ban is imposed for 12 months or indefinitely, it must be reviewed after 12 months or at the request of the banned person’. If it is the intended process that a banned visitor can request a review upon receipt of a visit ban notice, the Commissioner’s Requirements may be seen to offer a form of procedural fairness.
[59]Transcript, 2 February 2017, 53-4.

The Westin Prison Visit Ban letter[60] implied that an opportunity for review only arose on the expiry of the 12 month ban—which is inconsistent with the defendant’s submissions as to the correct interpretation of the Commissioner’s Requirements. However, I do not need to dwell on this aspect in light of the concession made by the defendant to the effect that if natural justce was required in this case, it was not afforded.
[60]Which was wrongly addressed and not received by the plaintiff, making it technically impossible to exercise a right of review, even if one existed.

It follows that the content of the obligation of procedural fairness need not be precisely determined in this case. In particular, it is unnecessary to decide what exact process of disclosure and allowance for a response by the plaintiff would have sufficed, given the defendant’s concession.

It should, however, be observed that procedural fairness is a flexible requirement which ranges from a ‘from a full-blown trial into nothingness.’[61] Justice Brennan articulated in Kioa that if a statutory power was conditional on observance of the principles of natural justice, this did not prevent the repository of power from modifying the procedure to meet the particular exigencies of the case. If giving notice prior to the exercise of a power would frustrate the purpose of the power, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected. In such a case procedural fairness may not be excluded, but its content may be reduced to nothingness.[62]
[61]Kioa v West (1985) 159 CLR 550, [19] (Brennan J).
[62]Ibid [20].

In considering the discretion to be exercised under s 43(1A), a spectrum of different circumstances can be envisaged. Whilst notification of a prospective ban may ordinarily be required along with notification of a chance to respond, there may be circumstances where there is no practical opportunity to provide those mechanisms in advance of attempted entry to a prison by a visitor. This might be so if to provide such an opportunity would frustrate the objects of s 43(1A) which are aimed at averting a threat to the good order or security of prisons or the safety of prisoners or visitors. The precise requirements of procedural fairness will be determined by the circumstances of the case.[63] In Day v Harness Racing New South Wales (‘Day’),[64] the New South Wales Court of Appeal said:

The duty to accord natural justice may be excluded where urgent action is required. But here it is necessary to distinguish between powers which, by their very nature, are inconsistent with an obligation to accord an opportunity to be heard and powers which may on occasion, but not always, need to be exercised urgently.’[65]

[63]Mobil Oil Australia v Federal Commissioner of Taxation (1963) 113 CLR 475, 504.

[64]Day v Harness Racing New South Wales [2014] NSWCA 423.

[65]Ibid, [105], citing Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241; Commissioner for Police v Ryan [2007] NSWCA 196; 70 NSWLR 73, [29].

The court also said:

The particular facts of a case do, of course, impact the content of any obligation to accord procedural fairness:…But it is necessary to bear in mind what five Justices of the High Court said in Saeed at [47]:
The proposition that natural justice may, in some cases, require less does not lead to the conclusion that none is intended to be provided and that no consideration is to be given to what could and should be provided in an individual case.[66]

[66]Day v Harness Racing New South Wales [2014] NSWCA 423, [107], citing Saeed v Minister of Immigration and Citizenship (2010) 241 CLR 252.

In the case before me it appears that the requirements of procedural fairness were capable of being fulfilled without the risk of frustrating the objects of the legislation.

A process that enables disclosure of the proposed or potential basis for the decision and offers a chance for the recipient of a ban to put forward a response would often be sufficient. Thus, the provision of natural justice under s 43(1A) need not be unduly onerous in circumstances such as those raised in the case before me. The nature of the power being exercised in this regard stands in contrast to the burden on prison management posed by the kind of administrative or managerial decisions relating to the day-to-day management of prisoners that have been found not to require procedural fairness and not to be amenable to judicial review.

Reasonableness

The plaintiff raised an argument in written submissions that the decision of the defendant should be reviewed on grounds of unreasonableness. The submission raised several objections to the process of reasoning that was applied to the Prison Visit Ban Decision, and argued that Ms Westin failed to turn her mind to the real issue, which was whether A S posed a threat if she was permitted to visit gaols in the future. Mr Carr argued that consideration of past conduct was an insufficient basis on which to ground a decision that was directed towards a putative future threat. As such, the decision gave undue prominence to punitive purposes, and insufficient weight to protective considerations.

The defendant’s argument rightly emphasised that the court’s role is not to make a determination of the merits of a decision, but merely to determine whether a statutory power has been exercised according to law. She cited the reasons given by Ms Westin in her affidavit for imposing the ban, and argued that her determination was not ‘lacking in rational or plausible justification.’[67]
[67]Chava v Minister for Immigration and Border Protection [2014] FCA 212, [73].

The joint judgment of the High Court in Minister for Immigration and Citizenship v Li[68] held that:

Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[69]

[68](2013) 249 CLR 332.

[69]Ibid [76] (Hayne, Kiefel, Bell JJ).

It is also the case that the role of a reviewing court is not to substitute its own judgment for that of the decision-maker, but to review the process by which the decision was made.

In the present case, it is undisputed that the plaintiff sent contraband to the prison. In her affidavit, Ms Westin explained how bringing illicit drugs into a prison posed a threat to security.[70]
[70]Affidavit of Melissa Sueanne Westin, sworn on 17 January 2017, [9].

On the basis of the reasons for imposing the ban at the time it was made, a conclusion that the future security of the prison was threatened by the plaintiff’s behaviour and that a ban was warranted was not unreasonable. It would be unrealistic to ignore the practical realities for prison management in the enforcement of prison regulations such that past behaviour by a visitor may be one of the few sources of information available for the assessment of future threats to prison security. The conclusion and process of reasoning applied by the decision maker at the time of imposing the ban was rational and plausible, with an intelligible justification. The plaintiff cannot succeed on the grounds of unreasonableness.

Would it be futile to grant the relief sought?

Whilst Stead v State Government Insurance Commission[71] is relied on as authority for a court declining relief on the grounds of futility, the High Court said in that case that:

[i]t is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.[72]

[71] (1986) 161 CLR 141.

[72]Ibid, 145-6.

The New South Wales Court of Appeal in Day, dealing with a failure to permit natural justice before imposing a suspension on the appellant trainers said that:

It is no small thing to conclude that a procedurally unfair exercise of power should stand, when the hearing as to factual matters which the law ordinarily insists upon has not taken place.[73]

[73] Day v Harness Racing New South Wales [2014] NSWCA 423, [123].The court also referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 which spoke of a requirement of inevitability attaching to a decision before justifying a discretionary refusal to grant relief.

Similarly in Bahonko v Moorfields Community[74] the Victorian Court of Appeal said:

The authorities are clear that once a breach of procedural fairness is proved, a court should refuse relief only when it is confident that the breach of natural justice could not have made a difference, and that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice could not have had a bearing on the outcome. In effect the onus is on the respondent therefore to demonstrate that whatever the appellant might have wished to submit or adduce in evidence to oppose the reference to VCAT, it would inevitably result in the making of the same order as that made by the primary judge at the first trial.[75]

[74][2008] VSCA 6.

[75]Ibid [30].

In Ucar v Nylex Industrial Products Pty Ltd,[76] Redlich JA stated:

Procedural fairness must be upheld for its own sake as well as for its consequences because the experience of the common law is that out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge.

[76][2007] VSCA 181, [57].

I am not persuaded that it would be futile to grant the relief sought in this case on the basis that the same decision would inevitably be made. It could not be said to be a futile exercise for the plaintiff to be accorded a chance to make direct representations to Ms Westin as to what happened in the past and as to her future intentions. It cannot be assumed that in according the plaintiff that opportunity, the decision-maker would necessarily re-impose the 12 month ban.

Is an extension of time required for the grant of relief?

The plaintiff has sought both a declaration that the decision made by the defendant was invalid, and an order in the nature of certiorari to quash the decision. Mr Carr submitted that either remedy would have the same effect in that the decision would no longer be valid and the plaintiff would be free to again seek permission to enter the prison.

Proceedings for an order in the nature of certiorari under r 56.01 must be commenced within 60 days of when the ‘grounds for the grant of relief or remedy claimed first arose.’[77] Under r 56.02(2), the time period in which proceedings must be initiated begins when the order is first made. In this case, the order was first made on 8 July 2016. However, it was not until 1 August 2016 that the plaintiff’s solicitor was notified, due to the mislabelling of the letter of notification to A S. The originating motion was not filed until 25 November 2016. If the 60 day grace period is counted from the day the notification was received on 1 August, an extension of 56 days would still be required to bring the motion within the statutory time limit.
[77]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56.02(1).

According to r 56.02(3), an extension of time can only be granted under special circumstances. I observe that there are difficulties in reaching a state of satisfaction as to special circumstances justifying an extension of time under r 56.02(3).

In his argument in favour of an extension of time, Mr Carr relied on the following grounds: the strength of the case for judicial review of the decision and for a grant of relief,[78] the relatively limited period of delay in this case, the fact that the plaintiff had raised her complaint directly with the defendant in August 2016, the lack of prejudice to the defendant if the extension of time were granted, the plaintiff’s explanation for the delay set out in her affidavit (that she needed time to save money to bring the action, given that her husband is in gaol and that her barrister of choice was then unavailable for a while), and the delay by the defendant in responding to the originating motion and filing relevant response material. He placed particular emphasis on the merits of the substantive claim and the lack of prejudice to the defendant by reason of the delay.
[78]Mr Carr cited David Glass v The Chief Examiner & Ors [2015] VSCA 127.

Ms Fitzgerald submitted in response that the circumstances referred to above did not meet the requirement under r 56.02(3) of ‘special circumstances’. She placed reliance on the principles summarised by Derham AsJ in Lazarevic v Victoria Police.[79] His Honour held that the relevant principles to be taken into account are the period of delay, the reason for delay, the merits of the plaintiff’s case, justice to both parties, including any prejudice to the defendant incurred by the grant of extension, and public interest in the finality of litigation.[80] In particular, his Honour noted that the fact that a plaintiff’s case may have merit does not automatically result in there being special circumstances, for otherwise there would be no practical point to the time limit contained in the Rule.
[79]Lazarevic v Victoria Police [2015] VSC 13.
[80]This summary of principles was described as unimpeachable by J Forrest J on appeal Lazarevic v Victoria Police [2015] VSC 13.

Although the plaintiff’s case has merit and an extension of time involves no particular prejudice to the defendant, delays due to funding and the availability of lawyers usually do not constitute special circumstances that would warrant an extension of time. There is also a policy consideration with respect to finality of litigation that is to be taken into account. In the situation before me however, finality is less of a concern, in light of the absence of any prejudice to the defendant by the late application.

In the case of Bashour v VCAT and Ors,[81] Mukhtar As J addressed the meaning of ‘special circumstances’, stating that ‘the paramount concern in such an application is to ensure the attainment of justice.’[82] His Honour pointed out in the same passage that the merits of a case is not the sole determining factor to be taken into account in assessing special circumstances.
[81][2016] VSC 527.
[82]Ibid [2].

Overall, in the present proceedings, there has not been a satisfactory explanation of why the plaintiff did not take action at an earlier date. She already had a lawyer engaged, and so was in a position to be advised on the temporal requirements to initiate proceedings. Insufficient funding and unavailability of counsel are not special circumstances. On balance, in light of all the circumstances of the case argued before me, the requirement of special circumstances has not been made out. Hence I will not grant relief in the nature of certiorari.

Mr Carr submitted that if the relief granted by the court is declaratory in nature it is not necessary for the court to grant an extension of time.

In Minister for Youth and Community Services v Kew Cottage and St Nicholas Parents Association Inc[83] the Court of Appeal considered an appeal by the Minister against a decision of Eames J (as he then was). Justice Eames declined to strike out a statement of claim against the Minister for Health and Community Services,[84] even though claims for relief by way of declarations comprised a significant part of the plaintiff’s case, and related to decision made several years earlier. Argument had been put on behalf of the Minister that the plaintiff had adopted the process to avoid the time limits imposed by the operation of r 56.01(2) in proceedings by way of originating motion. Justice Eames noted the court’s jurisdiction to grant a declaration is a very wide jurisdiction which may be utilised even where other relief is available such as by way of prerogative relief.[85]
[83](1996) 10 VAR 293.
[84]Kew Cottage and St Nicholas Parents Association Inc v Minister for Health and Community Services (1995) BC 9503913.
[85]Kew Cottage and St Nicholas Parents Association Inc v Minister for Health and Community Services (1995) BC 9503913, at 18, citing Forster v Jododex Australia (1972) 1227 CLR 421 at 435.

The Court of Appeal found no error in his Honour’s decision not to strike out the pleadings. In relation to the Minister’s argument based on O 56, Phillips JA said that in his view ‘declarations and injunctions are not directly affected by the constraints found in O 56.’[86] His Honour noted that a significant lapse of time might however be a relevant factor in the exercise of discretion as to whether to grant the relief sought.
[86]The Minister for Youth and Community Services v Kew Cottage and St Nicholas Parents Association Inc (1996) 10 VAR 293, 297.

In Maddingley Brown Coal v EPA,[87] Kyrou J followed the reasoning applied in Kew Cottages. His Honour also referred to the High Court’s decision in Ainsworth v Criminal Justice Commission, which held that the inherent power of superior courts to grant declaratory relief is a discretionary power that cannot and ought not be fettered, and is only limited by the limits of judicial power.[88]
[87][2013] VSC 582.
[88]Ibid [367], citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

In my view, the lapse of time in this case is not great. There is no significant prejudice to the defendant causing the court to decline to grant declaratory relief.

Accordingly, I propose to grant relief in the nature of a declaration.

I will declare that the defendant’s decision to ban the plaintiff from visiting any or all Victorian prisons from 8 July 2016 for a period of 12 months, was invalid for breach of the principles of procedural fairness.

[2017] VSC 310

5 June 2017