Bechara v The State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
BECHARA v THE STATE OF SOUTH AUSTRALIA
[2021] SASC 126
Judgment of the Honourable Justice David
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
CRIMINAL LAW - ADMINISTRATION OF PRISONS - SOUTH AUSTRALIA - CONDITIONS AND MANAGEMENT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
In this judicial review, the applicant challenges three assessments and determinations made by the Chief Executive of the Department for Correctional Services (the 'CE') since 29 September 2020. They relate to the exercise of the CE's power pursuant to s 23 of the Correctional Services Act 1982 (SA) (the 'Act') and concern the applicant's security rating and ordered return to Port Augusta Prison from Yatala Labour Prison. The applicant contends that the assessments and determinations were in breach of the rules of natural justice, unlawful, unreasonable, an abuse of power, not supported by any or sufficient evidence, and that the decision-maker took into account irrelevant considerations and failed to take into account relevant considerations.
The applicant seeks various remedies including a writ of certiorari quashing the three decisions, a writ of mandamus compelling the CE to assess the applicant and his circumstances according to law, an injunction restraining the CE from carrying out any assessments or determinations in respect of the applicant until the CE complies with the requirements of s 23, and a writ of habeas corpus.
The respondent contends that the action should be summarily dismissed as there is no reasonable basis for the grounds of judicial review relied upon by the applicant in prosecuting the claim. Further, the respondent contends that even if the applicant can satisfy the Court that there is a reasonable basis for any of the grounds relied upon (which is denied), there is no reasonable basis for the relief sought by the applicant. In the alternative, the respondent seeks that the applicant's amended Originating Application and amended Statement of Facts, Issues and Contentions be struck out in full as they fail to comply with the applicable rules and are frivolous and vexatious within the meaning of the Uniform Civil Rules 2020 (SA).
Held, per David JA, granting the respondent's application and summarily dismissing the applicant's action for judicial review:
1. There is no reasonable basis for any grounds of review relied upon by the applicant.

Correctional Services Act 1982 (SA) ss 22, 23, 24, 25, 37A; Uniform Civil Rules 2020 (SA) rr 144.2 & 256.5, referred to.
Agius v The Parole Board of South Australia [2020] SASC 225; Chief of Navy v Angre (2016) 244 FCR 457; Fyfe v State of South Australia [2000] SASC 84; Fyfe v The State of South Australia [2007] SASC 272; Hart v Parole Board [2017] SASC 184; Kioa v West (1985) 159 CLR 550; Kleentex (Thailand) Co Ltd v Corporate IM Pty Ltd [2012] SASC 71; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; Vansetten v The State of South Australia [2020] SASC 158, considered.

BECHARA v THE STATE OF SOUTH AUSTRALIA
[2021] SASC 126
Supreme Court: Civil

DAVID JA: In this judicial review, the applicant challenges the ‘[a]ssessments and determinations of the Chief Executive of the Department for Correctional Services made since 29 September 2020’ (the ‘CE’).
The applicant specifies the dates of the decisions as 29 September 2020, 23 November 2020, and 17 December 2020. The challenged decisions involve a recommendation on 29 September 2020 to lower the applicant’s security rating; a determination on 23 November 2020 to not lower the applicant’s security rating and that he be returned to Port Augusta Prison (‘PAP’) from his temporary accommodation at Yatala Labour Prison (‘YLP’); and a further assessment and determination made on 17 December 2020 that the applicant would be returned to PAP in early February 2021.
The challenged decisions relate to the exercise of the CE’s power pursuant to s 23 of the Correctional Services Act1982 (SA) (the ‘Act’).
In addition to the three decisions challenged, the applicant also contends that the CE, in exercising their power under s 23 of the Act in relation to those decisions, performed a range of acts or omissions which are the subject of various grounds of judicial review.
As a remedy, the applicant seeks a writ of certiorari quashing the three decisions; a writ of mandamus compelling the CE to ‘assess the applicant and his circumstances according to law’ and to ‘determine the applicant’s security classification according to law’; an injunction restraining the CE from carrying out ‘any assessments or determinations in respect of the applicant until the [CE] complies with the requirements of s 23’; and a writ of habeas corpus.
The State of South Australia (the respondent) contends that the action should be summarily dismissed as there is no reasonable basis for the grounds of judicial review relied upon by the applicant in prosecuting the claim. Further, the respondent contends that even if the applicant can satisfy the Court that there is a reasonable basis for any of the grounds relied upon (which is disputed), there is no reasonable basis for the relief sought by the applicant.
In the alternative, the respondent seeks that the applicant’s amended Originating Application[1] and amended Statement of Facts, Issues and Contentions[2] be struck out in full as they fail to comply with the applicable rules and are frivolous and vexatious within the meaning of the Uniform Civil Rules 2020 (SA) (the ‘UCR’).
[1] Amended Originating Application for Review (FDN 20).
[2] Amended Statement of Facts, Issues and Contentions (FDN 21).
Procedural history
This application has had a somewhat vexed history.
The action commenced by way of an Originating Application and Statement of Facts, Issues and Contentions filed on 1 December 2020 which sought judicial review of a decision of the CE made on 29 September 2020. By way of an interlocutory application filed on 8 January 2021, the respondent sought summary dismissal of the action, or in the alternative, that the applicant’s originating documents be struck out for non-compliance with the UCR.
On 26 May 2021, during the hearing of the abovementioned interlocutory application, the applicant sought to amend his grounds of review for which leave was granted by this Court.
The applicant subsequently filed an amended Originating Application for Review and amended Statement of Facts, Issues and Contentions on 9 June 2021 (the ‘Applicant’s Statement’).
An amended interlocutory application was filed by the respondent on 16 June 2021. In support of the respondent’s amended interlocutory application, the respondent relies on the affidavit of Ms Hayley Melissa Mills affirmed and filed on 16 June 2021 (the ‘Mills Affidavit’).
The matter proceeded to a hearing on 25 June 2021. At that time (and at all earlier times) Mr Mancini appeared as counsel for the applicant. During the hearing, the applicant terminated his instructions of Mr Mancini and his solicitors, who sought and were granted leave to withdraw from the matter. The applicant represented himself for the remainder of the proceedings.
The Court’s power to grant summary judgment
As mentioned earlier, the respondent contends that the action should be summarily dismissed as there is no reasonable basis for the grounds of judicial review relied upon by the applicant in prosecuting the claim.
Under r 256.5(a) of the UCR, the Court must dismiss the applicant’s action for judicial review ‘unless the Court is satisfied that there is a reasonable basis for the action’. Rule 144.2(2)(a) empowers the Court to dismiss the action summarily on the application of the respondent ‘if there is no reasonable basis for prosecuting the claim’. The applicant bears the onus of establishing a reasonable basis for his claim.[3]
[3] Hart v Parole Board [2017] SASC 184 at [8] per Stanley J.
In determining whether there is a reasonable basis, the Court is not required to be satisfied that the action is hopeless or bound to fail.[4] The test (which applies to both rules) requires a practical enquiry or assessment of whether there is a reasonable or real prospect of prosecuting the action successfully. The inquiry may require consideration of the underlying merits of the action, the form of relief sought, or a combination of both.[5] That the relief sought is discretionary in nature is no bar on summary judgment; if the Court is satisfied there is no reasonable prospect that a trial Judge would exercise the discretion to grant the relief, it must dismiss the action.[6] However, the power to summarily determine an action should not be exercised lightly.[7]
[4] Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [17] per French CJ and Gummow J, at [52]-[53], [56] per Hayne, Crennan, Kiefel and Bell JJ.
[5] Kleentex (Thailand) Co Ltd v Corporate IM Pty Ltd [2012] SASC 71 at [19] per White J.
[6] Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [51]-[52], [56]-[58] per Hayne, Crennan, Kiefel and Bell JJ.
[7] Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at [24]-[26] per French CJ and Gummow J, at [52]-[60] per Hayne, Crennan, Kiefel and Bell JJ.
Background
On 22 March 2013, following a trial by judge alone, the applicant was convicted of two counts of trafficking in a controlled drug, namely methylamphetamine, and two counts of trafficking in a commercial quantity of a controlled drug, namely cocaine.
On 25 June 2013, the applicant was sentenced to a head sentence of 22 years and 6 months imprisonment, cumulative on a balance of unexpired parole of 7 months and 5 days, resulting in a head sentence of 23 years, 1 month, and 5 days imprisonment. A non-parole period of 18 years was fixed. The applicant appealed his sentence. On appeal, the head sentence was affirmed and a new non-parole period of 17 years and 3 months was imposed, which was ordered to commence on 2 February 2011, the date the applicant was first remanded in custody. The applicant’s head sentence ends on 6 March 2034.[8] His non-parole period expires on 1 May 2028.[9]
[8] Exhibit HMM-6 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
[9] Exhibit HMM-6 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
The legislative framework – s 23 of the Act
Before turning to consider the grounds of review, it is first necessary to briefly describe the function of s 23 and its operation in the context of the Act as a whole.
Section 23 of the Act provides for the initial and periodic assessment of prisoners. It states:
23 —Initial and periodic assessment of prisoners
(1)   The CE must, as soon as practicable after the initial admission to a prison of a person who has been sentenced to a term of imprisonment exceeding six months, to life imprisonment or to a sentence of indeterminate duration, and thereafter at regular intervals of not more than one year, assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.
(2)    The Minister may, for the purpose of assisting the CE in carrying out assessments under this section, establish such committees as the Minister thinks fit.
(3)    In carrying out an assessment under this section, the CE must have regard to—
(a)    the age, gender, gender identity, sexuality or sexual identity, and the social, medical, psychological and vocational background and history, of the prisoner; and
(b)    the needs of the prisoner in respect of education or training or medical or psychiatric treatment; and
(c)    the aptitude or suitability of the prisoner for any particular form of training or work; and
(d)    the nature of the offence, or offences, in respect of which the prisoner is imprisoned and the length of sentence; and
(e)    the information contained in any file held by a court in respect of the prisoner; and
(f)     the behaviour of the prisoner while in prison; and
(g)    the security of, and availability of accommodation in, any prison under consideration; and
(h)    the question of maintaining the prisoner's family ties; and
(i)     where relevant, any proposed plans in respect of the release of the prisoner and his or her social rehabilitation; and
(j)     such other matters as the CE thinks relevant.
(4)    The CE must notify the prisoner before commencing an assessment, and must, if the prisoner so requests, grant the prisoner an opportunity to make representations in person to the CE or to a committee established pursuant to subsection (2), including a request that, if practicable, the assessment be made by a person of the same sex or gender identity as the prisoner.
(5)    The prisoner may make written representations in respect of his or her assessment to the CE or to a committee established pursuant to subsection (2).
(6)    After the first assessment of a prisoner has been completed, the CE must prepare a programme in relation to the prisoner that contains particulars of any proposals for the education or training or medical or psychiatric treatment of the prisoner, and may, after any subsequent assessment, add to or vary that programme.
Thus, s 23 requires that the CE assess the prisoner and his or her circumstances to determine whether the prisoner should be transferred to another correctional institution. The section requires that after an initial assessment and determination, there are subsequent assessments and determinations at regular intervals of not more than one year.
The section also provides for the establishment of committees to assist the CE in carrying out the assessments in s 23(2) and sets out the matters to which the CE must have regard in s 23(3). It also requires in s 23(4) that the prisoner be notified before commencing an assessment and be given an opportunity to make representations to the CE or to a committee.
It is important to also consider the operation of s 23 in the context of the Act as a whole. Part 4 of the Act is concerned with the management of prisoners. Section 22(2) confers power on the CE to determine the correctional institution in which a prisoner is to be placed. Under div 4 s 24, the CE is conferred with an absolute discretion as to a prisoner’s location within the correctional institution and the regime in respect of their day-to-day life. Under div 5 s 25, the CE may by written order direct that a prisoner be transferred to any other correctional institution. Divisions 6A and 7 concern the release of prisoners, either on home detention or otherwise.
Under the Act, the CE has absolute discretion regarding prisoner placement in any institution pursuant to s 22(2), prisoner placement within an institution pursuant to s 24(2), and the transfer of prisoners between institutions pursuant to s 25. The CE’s absolute discretion in that regard is not otherwise limited by the Act. Thus, the statutory scheme provides a broad discretion to the decision-maker (the CE or their delegate) in relation to the management of prisoners.
Legal consequence of a decision under s 23 of the Act
As to the legal consequences of a decision under s 23 of the Act, the respondent emphasised the limited legal consequence of an assessment and determination under the Act when considered in the context of the Act as a whole. Section 23(1) confers on the CE the sole function of making an assessment and determination as to whether a prisoner should be transferred to another prison. However, there is no requirement under the Act that the CE (or their delegate) give effect to that determination. Rather, under s 25 of the Act, the CE is conferred with a separate and distinct discretionary power to direct that a prisoner be transferred to another correctional institution. A determination under s 23 does not dictate the outcome of a separate decision under s 25; it is a separate and distinct discretionary power conferred on the CE.
As Doyle J said in Vansetten v The State of South Australia:[10]
The State emphasises, and I accept, that it follows from the separate and distinct nature of the powers that the outcome of a determination under s 23 does not dictate the outcome of whether a prisoner is ultimately transferred under s 25. As is apparent from the list of matters in s 23(3) to which the CE is required to have regard when carrying out an assessment, the focus of the assessment and determination under s 23(1) is upon the circumstances of the particular prisoner. When making a decision to direct the transfer of a prisoner under s 25, on the other hand, it is to be expected that the CE may be significantly informed by broader management and operational considerations having regard to the needs and circumstances of the various correctional institutions and other prisoners. While there will often be some overlap in the matters considered under both ss 23 and 25, they are ultimately different powers, to be exercised by reference to different considerations. As such, the terms of a determination under s 23 may well be influential in whether a transfer is directed, but it does not dictate or require that this occur. The CE is not bound to implement any aspect of the determination, or indeed any recommendation made during a case assessment. Conversely, a transfer might be directed under s 25 quite independently from any assessment and determination under s 23.
[10] [2020] SASC 158 at [19].
Irrespective of the outcome of an assessment under s 23, under the Act, the CE nonetheless retains a discretion as to whether to act upon any such assessment or determination made under s 23. I accept the respondent’s submission that there is no express right under the Act for a prisoner to be transferred to any correctional institution which may arise from an assessment or determination to that effect made under s 23 of the Act.
Assessment and determination process - Case reviews
The assessment of prisoners under s 23 of the Act is referred to as a ‘case review’ internally within the Department of Correctional Services (‘DCS’). The general process for case reviews conducted under s 23 of the Act is set out in the Mills Affidavit. It is as follows:[11]
Each prisoner is assigned a Case Review Committee (CRC). A CRC is chaired by the prisoner’s relevant Case Management Coordinator (CMC) and is attended by the prisoner and any other relevant officers or professionals, including those requested by the prisoner. Each prison will have several CRCs, according to the management and size of the particular prison.
The CRC was established by the Minister for Correctional Services, pursuant to section 23(2) of the Act, for the purpose of assisting the Chief Executive (CE) of DCS in carrying out section 23 assessments. Now shown to me and marked HMM-1 is a copy of the signed instrument from the Minister to this effect, dated 19 September 2016.
(emphasis in original)
[11] Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22) at [6]-[7].
The applicant, as a prisoner serving a sentence of 10 years or more, is categorised as a ‘serious offender’ for the purposes of a case review. The Serious Offender Committee (the ‘SOC’) conducts annual or biannual case reviews for serious offenders. The SOC may also conduct special case reviews on an ad hoc basis if requested by a prisoner, or by virtue of the receipt of further material or information.

The general process for case reviews for serious offenders was set out in the Mills Affidavit as follows:[12]
[12] Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22) at [9]-[10] (emphasis in original).
.
9.Case Reviews for Serious Offenders generally proceed in the following manner:
9.1.the prisoner is advised in writing of an upcoming Case Review;
9.2.a meeting of the CRC is convened and chaired by the prisoner’s CMC;
9.3.   the prisoner is generally requested to attend the CRC meeting in person; they also have the opportunity to make written submissions to the CRC and/or the SOC;
9.4.   upon conclusion of the CRC meeting, minutes of the CRC meeting (including any views expressed by the prisoner and recommendations of the CRC) are recorded by the CMC within the prisoner’s Offender Plan on the DCS electronic record system, which is called the Justice Information System (JIS);
9.5.   the relevant General Manager of the particular prison in which the prisoner is held reviews the Case Review document, and endorses it, marking it ‘ready for approval’;
9.6. the SOC then considers the Case Review document on JIS, together with the general SOC file held for the prisoner, at the SOC’s next regular meeting and conduct an assessment for the purposes of section 23, which includes an assessment of the circumstances of a prisoner having regard to all the matters in section 23(3) of the [Act] (which might include as to a prisoner’s security rating where relevant) and the making of a determination as to whether or not the prisoner should be transferred to some other prison;
9.7. pursuant to s 7(2) of the Act, the chairs of SOC (including Executive Director, Community Corrections and Specialist Prisons and Executive Director, Offender Development) hold delegated authority of the Chief Executive to undertake assessments and determinations pursuant to section 23 of the Act. Now shown to me and marked HMM-2 is an extract of the current relevant instrument of delegation in respect of s 23 assessments;
9.8. the section 23 assessment and determination of the CE’s delegate (SOC chair) is recorded in the SOC Meeting Minutes.
Documentary material held by DCS relating to prisoners
10.DCS holds a variety of documentary materials that relate to the custody and management of prisoners. These documents include case notes in JIS about prisoner conduct and interactions, drug and alcohol testing, custody records, and other internal documents. Documents held by DCS may also include intelligence reports relating to the conduct and management of prisoners, these documents are not ordinarily provided to prisoners in order to preserve the operational integrity for which they were produced. SOC may consider any of these documents in respect of a Case Review, given the broad parameters of section 23(3).
Decisions in relation to the applicant by the CRC and SOC
The Case Review Committee (the ‘CRC’) and SOC have made the following decisions in relation to the applicant since 29 September 2020.
29 September 2020
On 29 September 2020, the applicant was advised in writing of a meeting of his CRC for the purposes of his case review.[13] The applicant’s case review was conducted on 29 September 2020. An internal recommendation was made to lower the applicant’s security rating. It was noted that it would be beneficial to permanently move the applicant to YLP.
[13] Exhibit HMM-4 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
The applicant was placed at YLP from 29 October 2020 as a compassionate short-term arrangement for the purpose of visits with his family whilst his wife was suffering from illness.
23 November 2020
On 23 November 2020, the SOC undertook an assessment of the applicant and made a determination under s 23 of the Act. In doing so, the SOC reviewed the recommendations of the CRC of 29 September 2020 and other information on the applicant’s general SOC file. The SOC endorsed that the applicant’s security rating should remain at ‘SR HIGH 2 (60)’ and that it did not support a reduction in security rating. The SOC also noted that the applicant was temporarily accommodated at YLP for visits with his family and would return to PAP as soon as practicable.[14]
[14] Exhibit HMM-8 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
In her affidavit, Ms Mills said that the SOC had departed from the recommendation by the applicant’s Case Management Coordinator (‘CMC’) due to two factors: the length of the applicant’s sentence; and concerns regarding the applicant’s conduct during his term of imprisonment, including his conduct in engaging with members of the community through mail and telephone calls.[15] That conduct involved an allegation that the applicant had engaged in a money lending business from custody. Ms Mills said that the applicant was made aware of the allegations and that such matters were to be considered by the SOC in conducting a s 23 assessment and determination.[16]
[15] Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22) at [22].
[16] Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22) at [24]-[25]; Exhibits HMM-9-14 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
17 December 2020
On 17 December 2020, the SOC made a further assessment and determination in line with their earlier determination that the applicant would remain at YLP, with a return to PAP in early February 2021.
On 27 November 2020, the SOC received undated written submissions from the applicant as to the decisions made on 23 November 2020 about which he said he had been informed by his CMC.[17] On 8 December 2020, the Manager of the Sentence Management Unit (the ‘SMU’) replied to the applicant’s letter and indicated that it would be tabled at the next SOC meeting scheduled for 17 December 2020.[18] The applicant provided further written submissions to the SMU on 13 December 2020.[19]
[17] Exhibit HMM-15 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
[18] Exhibit HMM-16 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
[19] Exhibit HMM-17 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
A written response on behalf of the SOC regarding the s 23 determination of 23 November 2020, as confirmed on 17 December 2020, was provided to the applicant by letter dated 27 January 2021.[20]
[20] Exhibit HMM-20 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
Ms Mills noted that the applicant’s next annual s 23 assessment is scheduled for 27 November 2021.
Grounds of review
The grounds of review are difficult to distil from the Applicant’s Statement or his written and oral submissions. They appear to relate to the decisions of the CE (or their delegate, the SOC) on 23 November 2020 and 17 December 2020 to not lower the applicant’s security rating and to transfer the applicant from YLP back to PAP as soon as practicable, and the ‘[o]mission or refusal’ of the CE to permit the applicant to apply for home detention.[21] The applicant contends the decisions were:[22]
·in breach of the rules of natural justice, in that the CE did not disclose to the applicant the information and materials to be relied upon for the purposes of the determinations and assessments, did not provide the applicant with their criteria for determinations and assessments to be made in respect of the applicant, and did not provide the applicant with reasons for their determinations and assessments;
·unlawful, in that the CE failed or refused to afford the applicant the opportunity to make representations in person or in writing as required by ss 23(4) and (5) of the Act;
·unreasonable in light of the recommendations, information and materials concerning the applicant and having regard to the policies of the DCS and the State of South Australia for the rehabilitation of prisoners;
·an abuse of power and not authorised;
·not supported by any or sufficient evidence; and
·an improper exercise of power as it involved the decision-maker taking into account irrelevant considerations and failing to take into account relevant considerations.
[21] Amended Statement of Facts, Issues and Contentions (FDN 21) pt 2.
[22] Amended Statement of Facts, Issues and Contentions (FDN 21) pt 3.
Decision of 29 September 2020
As to the CRC’s ‘decision’ of 29 September 2020, there was no assessment or determination made by the CE or delegate of the CE on this date pursuant to s 23 or any other provision. The CRC’s ‘decision’ on 29 September 2020 was a recommendation made as an intermediary step before a decision was made by the CE (or their delegate) under s 23 of the Act. The members of the CRC hold no delegated authority under the Act and their recommendations are not amenable to judicial review.
Decision to not lower the applicant’s security rating
A decision was made by the CE’s delegate (the SOC) on 23 November 2020 to not lower the applicant’s security rating, contrary to the recommendation of the applicant’s CRC made on 29 September 2020. The decision to not lower the applicant’s security rating is challenged by the applicant. The respondent submits that the decision to not lower the applicant’s security rating is not a statutory decision capable of judicial review. In making that submission, the respondent contends that a security classification is essentially an intermediate decision that is separate to, and distinct from, an assessment or determination under s 23 of the Act. Courts are ordinarily reluctant to entertain judicial review applications where the challenge is to an intermediate determination made in the course of reaching the ultimate determination of a substantive issue. [23] In this case, the substantive issue is the assessment or determination under s 23 of the Act.
[23] Chief of Navy v Angre (2016) 244 FCR 457 at [84] per Mortimer J (with whom Perry and Gleeson JJ agreed).
Section 23 is concerned with an assessment and determination as to whether a prisoner’s circumstances have changed for the purpose of determining whether the prisoner should be transferred to another correctional institution. A prisoner’s security rating may indeed influence a determination under s 23, but a decision as to a prisoner’s security rating is not governed by s 23.
Security ratings are an internal classification tool used for the management of correctional institutions. Section 24 of the Act establishes that the CE has the custody of prisoners. It also establishes that the CE has an absolute discretion to establish in respect of any prisoner, or class of prisoner, a regime for work, recreation, contact with other prisoners, or any other aspect of day-to-day life. It can be garnered from this section that the CE has an absolute discretion as to the regime certain ‘classes’ of prisoners may follow, and as an extension of this reasoning, which prisoners fall into certain classes and the delineation of those classes. Practically, these classes translate in the prison environment to different security ratings.
In Fyfe v State of South Australia, Martin J said:[24]
… There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court’s jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the court surroundings.
[24] [2000] SASC 84 at [18].
In Vansetten v The State of South Australia, Doyle J held that some decisions made in the prison context will be so entwined in the operational and management considerations to which Martin J referred, that there will be little scope for intervention in accordance with ordinary principles.[25] I consider that decisions as to a prisoner’s ‘class’ or security rating reasonably fall within this category.
[25] [2020] SASC 158 at [82].
The Act and the associated Regulations are silent as to how these classes or security ratings are to be determined. The Act does not prescribe a specific process that the CE should follow in exercising their absolute discretion to determine a prisoner’s security rating. As such, a decision as to a prisoner’s security rating is not a statutory decision capable of judicial review.
Further, and in any event, the evidential basis on which the SOC decided to not lower the applicant’s security rating is apparent. That is, because of the length of the applicant’s non-parole period and concerns as to his conduct while imprisoned, namely allegedly running a money lending business from prison, as was set out in the Mills Affidavit. This allegation is supported by recorded telephone calls. I do not accept the applicant’s submission that the decision to not lower the applicant’s security rating was not supported by any or sufficient evidence.
There is no reasonable basis for this ground of review and it is not supportable.
Failure to provide procedural fairness and natural justice
The applicant alleges that he was not afforded procedural fairness or natural justice in respect of the decisions made pursuant to s 23 in that there was a failure to: provide the applicant with the materials relied on by the CE; provide the applicant with the criteria for the determination; afford the applicant an opportunity to make representations in person or in writing; and provide reasons for the decision. The applicant also complains that notice of his ‘regular case review’ was not given to the applicant at a reasonable time before the meeting of the CRC on 29 September 2020.
For the reasons outlined above, the decision to not lower the applicant’s security rating is not an administrative decision that can be the subject of judicial review proceedings. This ground of review (and indeed those which follow) can only relate to the s 23 determinations to transfer the applicant back to PAP as soon as practicable.
The extent of the obligation to afford procedural fairness at common law depends on the context and circumstances of the case, a proper construction of the statutory scheme, and a consideration of the circumstances of the decision in issue.[26] It must be borne in mind that a decision under s 23 is made in the context of a correctional statute and that principles of judicial review must be applied with regard to the complex and sensitive nature of decision-making that concerns the management of prisoners.[27]
[26] Kioa v West (1985) 159 CLR 550 at 584-5 per Mason J, at 611 per Brennan J.
[27] Fyfe v State of South Australia [2000] SASC 84 at [18] per Martin J; Fyfe v The State of South Australia [2007] SASC 272 at [10]-[11] per Kelly J.
I agree with the respondent’s submission that the express incorporation of some of the obligations of procedural fairness in ss 23(4) and (5) of the Act reflects the legislative intention that unless expressly conferred, additional procedural fairness rights in respect of s 23 decisions have been abrogated by the Act. As such, decisions made by the CE under s 23 are subject to a limited statutory obligation to afford procedural fairness, confined to the prescriptions in ss 23(4) and (5). Namely, that a prisoner must be given ‘an opportunity to make representations in person’ and ‘may make written representations in respect of his or her assessment’.
It is well established that it is not necessary that a prisoner is made aware of every detail of the information before the CE or their delegate; it is enough that the prisoner is made aware of those matters likely to be critical or significant to an assessment and determination under s 23.[28] Where a prisoner receives notification of a CRC meeting, the notification of which includes a list of the considerations under s 23(3), that is sufficient to enable the prisoner to make representations to the CRC.[29]
[28] Vansettenv South Australia [2020] SASC 158 at [92] per Doyle J.
[29] Vansetten v South Australia [2020] SASC 158 at [92] per Doyle J.
Further, there may be good reason for not providing prisoners with intelligence reports. An obvious example is where it is necessary to withhold some information to preserve the operational integrity for which they were produced. In this case, there is no basis for the applicant’s contention that the SOC took into account any significant matter of which the applicant was not made aware, or to which he did not otherwise have an opportunity to respond.
Nor is there any basis to support the submission that the applicant was deprived of procedural fairness in respect of the s 23 determination made by the SOC (as required by s 23 of the Act). As set out in the Mills Affidavit, the applicant was:
1.given written notice of the CRC meeting of 29 September 2020;
2.advised of the criteria to be considered at the meeting for the purposes of a s 23(1) assessment;
3.provided the opportunity to ‘prepare a written submission for consideration by the CRC’ and offered the assistance of a social worker to prepare the submission if required;
4.required to (and did) attend the CRC meeting, during which he expressed his views to the CRC in person;
5.advised that after the meeting the CRC would formally record the outcome and its recommendation for the delegate to consider, which they did, as the CRC minutes were before the SOC when making the decision or determination on 23 November 2020;
6.advised that he would be informed of the outcome of the s 23(1) assessment by his CMC; and
7.was further afforded, and took, the opportunity to provide written submissions to the SOC on 27 November 2020 and 13 December 2020. Those submissions were considered by the SOC on 17 December 2020.
As to the applicant’s allegation that he was denied procedural fairness due to the non-provision of reasons, the SOC has no statutory duty to provide reasons, nor is there a common law duty for an administrative decision-maker (such as the SOC) to provide reasons for its decisions.[30]
[30] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
Abuse of power
The applicant also alleges that the challenged decisions were an abuse of power and not authorised. The applicant submits that is so by reason of the same complaints made in contending that there was a breach of natural justice and in alleging procedural unfairness. Again, I am satisfied there is no basis for the applicant’s contention (made without any further particulars) and this ground of review is not independently supportable.
Unreasonableness
The applicant also contends that the decisions under s 23 were unreasonable by reason of the CE’s failure to fairly or reasonably apply a criterion for their decisions and as to the outcome of the decisions. The applicant makes this submission ‘in light of the recommendations, information and materials concerning the applicant’ and having regard to the policies of DCS and the State for the rehabilitation of prisoners.
In considering whether a decision is unreasonable, the issue for determination is whether the decision is such that no reasonable decision-maker could have arrived at it.[31] As Doyle J explained in Agius v The Parole Board of South Australia:[32]
In determining whether a particular decision is unreasonable in this sense, the Court’s task is a supervisory one. It does not involve the Court reviewing the merits of the decision, let alone substituting its own view as to how the decision or discretion ought to have been made or exercised. Rather, it is necessary to bear in mind that within the boundaries of the relevant power, there is generally an area of decisional freedom within which reasonable minds may reach different conclusions about the correct or preferable decision. A decision that falls within this area of decisional freedom is not legally unreasonable.
In order to identify the width and boundaries of this area of decisional freedom, and hence the bounds of legal reasonableness, it is necessary to construe the relevant statute. It is necessary to look to the scope and purpose of the statute conferring the relevant statutory power. …
(footnotes omitted)
[31] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[32] [2020] SASC 225 at [45]-[46].

For the reasons outlined above, the decision to not lower the applicant’s security rating is not a reviewable decision. As to a decision made under s 23 by the CE (or the SOC as the delegated authority), the criterion to be applied is set out in s 23(3) of the Act. As discussed earlier, the statutory scheme provides a broad discretion to the CE in respect of the management of prisoners. It would be inconsistent with that broad discretion for a criterion to be applied to making a decision under s 23, other than that mandated in s 23(3). As to the contention that the outcome of the s 23 decision was unreasonable, the respondent submits that this ground is, in effect, an attempt to attack the merits of the decision because the applicant is displeased with the outcome. Whether that is so or not, there is no factual basis identified or apparent to support the assertion that the decision was not properly made within the legal limits of the CE’s or their delegate’s powers under the Act.
This ground of review is not supportable.
Relevant and irrelevant considerations
The applicant contends that the CE improperly exercised their power under s 23 in making the determination to return the applicant to PAP as soon as practicable. The applicant submits that the CE had regard to irrelevant considerations and failed to take into account relevant considerations.
There is no factual basis identified or apparent to support this assertion.
This ground of review is not supportable.
Other contentions and grievances
Home detention
The applicant asserts that the CE omitted or refused to permit him to apply for home detention.
The applicant has not established a factual basis for this assertion by reason of: first, in the Applicant’s Statement he says to the contrary, that he applied to be released on home detention in November 2019;[33] second, the CRC minutes of the applicant’s case review on 29 September 2020 note the applicant’s request to be placed on home detention and that the CMC supports his request;[34] and third, the SOC minutes taken on 23 November 2020 refer to the CRC minutes.[35]
[33] Amended Statement of Facts, Issues and Contentions (FDN 21) at [75].
[34] Exhibit HMM-6 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
[35] Exhibit HMM-8 of the Affidavit of Ms Mills affirmed 16 June 2021 (FDN 22).
Thus, it can be seen that the applicant was afforded the opportunity to apply for home detention, that he did in fact apply to be placed on home detention, and that the SOC were informed of, and considered, a request by the applicant to be placed on home detention.
In any event, a decision as to home detention involves an exercise of power that is separate and distinct from a decision made under s 23 of the Act. A decision in respect of home detention is made by the CE (or their delegate) under s 37A of the Act. That section confers on the CE absolute discretion to decide whether to order a prisoner to serve a period of their sentence on home detention. A decision under s 23 may well be taken into account, and may even be influential, in the CE’s subsequent consideration of whether a prisoner is suitable for home detention. However, a determination under s 23 does not dictate the outcome of a s 37A decision. A decision as to a prisoner’s release on home detention is made under a separate and distinct power.
No specific decision relating to home detention has been identified by the applicant for the purposes of this judicial review.
This ground of review is not supportable.
Other grievances – Part 3, Contentions 7, 11-13, 16-22, 27-30, 32-34
I accept the respondent’s submission that these contentions do not raise any grounds of judicial review, nor are they supported by any identified factual bases.
As to contention 12, the applicant asserts that the CE ‘failed to carry out any or proper or adequate determination’ as to whether the applicant should be transferred to another prison. Any decision to transfer the applicant to another correctional institution involves an exercise of power under s 25 of the Act. It is a separate and distinct exercise of power from the challenged decisions made under s 23.
The applicant has not identified any specific decision under s 25 which is under challenge, nor any reasonable basis for challenging such a decision.
Part 3, Contention 8
As to contention 8, the applicant asserts an absence of good faith by the CE in the exercise of their power under s 23, without any identification of the matters relied upon to establish this contention.
Part 3, Contentions 9, 10, 14, 15, 23-25
Contentions 9, 10, 14, 15, 23, 24 and 25 assert breaches of purported statutory duties without any identification of the source of the proposed duties or the factual bases to establish those grounds. None of the contentions are supportable.
Contention 31
Contention 31 asserts jurisdictional error without any identification of the matters relied upon to establish that ground of review. For that reason, it is not supportable.
Conclusion
Accordingly, for the reasons set out above, I am not satisfied that there is a reasonable basis for the applicant’s action for judicial review.
Given my conclusion that there is no reasonable basis for the grounds of review relied upon by the applicant, it is not necessary for me to consider the respondent’s submissions as to the applicability of the relief sought.
Orders
I am not satisfied that there is a reasonable basis for the applicant’s action for judicial review. I order that the action be summarily dismissed pursuant to rr 256.5(3) and 144.2(2)(a) of the UCR.

[2021] SASC 126

4 November 2021