Clarkson v Commonwealth of Australia
[2006] FCA 1766
•7 DECEMBER 2006
FEDERAL COURT OF AUSTRALIA
Clarkson v Commonwealth of Australia [2006] FCA 1766
MARK ALFRED CLARKSON v COMMONWEALTH OF AUSTRALIA, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, COMMONWEALTH OMBUDSMAN, STATE NSW OMBUDSMAN, STATE NSW DEPARTMENT OF CORRECTIVE SERVICES AND GEO GROUP AUSTRALIA PTY LTD
ACD 30 OF 2006MADGWICK J
7 DECEMBER 2006
CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
ACD 30 OF 2006
BETWEEN:
MARK ALFRED CLARKSON
ApplicantAND:
COMMONWEALTH OF AUSTRALIA
First RespondentHUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second RespondentCOMMONWEALTH OMBUDSMAN
Third RespondentSTATE NSW OMBUDSMAN
Fourth RespondentSTATE NSW DEPARTMENT OF CORRECTIVE SERVICES
Fifth RespondentGEO GROUP AUSTRALIA PTY LTD
Sixth Respondent
JUDGE:
MADGWICK J
DATE OF ORDER:
7 DECEMBER 2006
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The time in which to file an application for leave to appeal be extended to 7 December 2006.
2.The applicant be granted leave to appeal in relation to the costs of the first respondent, including as to any ‘Bullock’ or like order.
3.Leave to appeal is otherwise dismissed.
4.The applicant is to pay the fourth, fifth and sixth respondents’ costs of this motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
ACD 30 OF 2006
BETWEEN:
MARK ALFRED CLARKSON
ApplicantAND:
COMMONWEALTH OF AUSTRALIA
First RespondentHUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Second RespondentCOMMONWEALTH OMBUDSMAN
Third RespondentSTATE NSW OMBUDSMAN
Fourth RespondentSTATE NSW DEPARTMENT OF CORRECTIVE SERVICES
Fifth RespondentGEO GROUP AUSTRALIA PTY LTD
Sixth Respondent
JUDGE:
MADGWICK J
DATE:
7 DECEMBER 2006
PLACE:
CANBERRA
REASONS FOR JUDGMENT
HIS HONOUR:
This is an application for leave to appeal from a decision of Finn J, given on 13 October 2006. The application was made late but I extended the time for making it until today because unfortunate circumstances that I am about to relate would have encouraged any lay person to the view that he ought to try to appeal.
The applicant was accused of a number of indictable federal offences and after a trial in the District Court of New South Wales, a jury convicted him and he was sentenced to a term of imprisonment. At the same time he was convicted of some offences under State law. His present, exact, legal status is not clear, but it seems to me that he probably is in the category of simply being a person accused of a federal offence. This is because he asked for the reservation of a question of law before the Full Court of the New South Wales Supreme Court, and s 72 of the Judiciary Act1903 (Cth) obliged the trial Judge to so refer the question. The net effect of what seems to have occurred and not occurred is that in the District Court there is no valid judgment on the conviction which can be executed.
At all events, after he was incarcerated in New South Wales State prisons, Mr Clarkson became dissatisfied with a number of matters, including the data available, and prohibition on his access, to a laptop computer, and the destruction of certain computer files that he needed for the purposes of preparation of his appeals in relation to his convictions. He commenced proceedings in this Court on the faith of information which officers of the Commonwealth gave him, telling him that there were formal arrangements in effect between the Governor-General of the Commonwealth and the Governor of New South Wales in relation to the carrying out or enforcement of orders made under s 3B of the Crimes Act 1914 (Cth) (‘Crimes Act’).
There are no such arrangements at all of any formal kind in relation to actual imprisonment, or incarceration pending trial or final disposition of a case, as distinct from punishments of a lesser kind than imprisonment, imposed on Federal offenders. Finn J, was likewise informed, as I understand, on affidavits from Commonwealth officers and by a solicitor from the Australian Government Solicitor’s Office. Other parties, including the New South Wales Department of Corrective Services, likewise laboured under that misapprehension.
The case that Mr Clarkson really wished to run, in its essence, is that however the arrangements have been made, the State instrumentalities and officers, in dealing with a person accused of federal offences and with federal offenders, must be and are ultimately acting under federal law.
Section 120 of the Constitution provides that the States are to make provision for the detention in their prisons of persons accused or convicted of Commonwealth offences, and that the Commonwealth Parliament may make laws to give effect to that provision. Section 19A of the Crimes Act provides:
‘A federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State or Territory, may be detained in any prison in that State or Territory and may be removed from one prison to another prison in that State or Territory as if the person were detained as a State offender or Territory offender.’
Mr Clarkson’s application for orders of review, purportedly under the Administrative Decisions (Judicial Review) Act 1977 (Cth), asked first to have reviewed a number of decisions of the Commonwealth, three of them related to decisions said to have been made not to amend the irrelevant agreement, giving rise to the formal arrangements which I mentioned. It is now clear, and Mr Clarkson acknowledges, that that claim was entirely misconceived and there was no prospect of success at all in relation to that matter. But Mr Clarkson also challenged decisions in effect not to intervene either generally to ensure that Federal offenders incarcerated in New South Wales prisons are not treated arbitrarily or with unnecessary indignity, and also, as I understand, not to intervene in response to his request to Commonwealth agencies to intervene about the computer and like disputes that he had with his local gaolers. The Attorney General’s officers told Mr Clarkson in the latter regard that they regarded the disputes as entirely appropriate to be resolved by New South Wales authorities.
Finn J held that, in relation to the second category of Commonwealth decisions, there was no enactment identified and no decision under it identified, so that as his Honour put it, ‘No tenable basis at all has been advanced to found’ the assumptions that there were such decisions. So far as I can see, there is no prospect whatever of success on appeal against such a conclusion.
The next set of orders sought to be reviewed were decisions of the Human Rights and Equal Opportunity Commission not to investigate complaints made by Mr Clarkson. Those matters were reserved by Finn J and dealt with in a separate judgment and do not arise before me.
The third group of decisions were decisions said to have been taken by the Commonwealth Ombudsman not to investigate the actions taken by the local prison officers of which Mr Clarkson complained. As to those matters also, they rely on the proposition that the decisions of State officials are, under the legal framework which I have outlined, really decisions of Commonwealth officers, such that they should be investigated federally. His Honour dismissed that claim on the basis that the officers were acting entirely under State laws. Again, I see no reasonable prospect of success with an appeal against such a contention.
The positions of the State Ombudsman and New South Wales Department of Corrective Services have likewise, in my opinion, been misconceived by Mr Clarkson, as his Honour found. I do not think the contrary is reasonably arguable.
The final respondent is a company that operates Junee Correctional Centre under contract to the New South Wales Government, and its case is that any decisions its officers take are made under a contract and/or under State laws entirely, and not under a Federal enactment. Again, I think that the contrary of that position, upheld by his Honour, is not reasonably arguable.
The applicant is granted leave to appeal in relation to the costs of the first respondent, including as to any ‘Bullock’ or like order. Leave to appeal is otherwise dismissed. The applicant is to pay the fourth, fifth and sixth respondents’ costs of this motion.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate:
Dated: 8 January 2007
Counsel for the Applicant: The Applicant appeared in person Counsel for the First, Second and Third Respondents: C Dowsett Solicitor for the First, Second and Third Respondents: Australian Government Solicitor Counsel for the Fourth Respondent: H L Donohoe Solicitor for the Fourth Respondent: NSW Ombudsman Solicitor for the Fifth Respondent: Crown Solicitor’s Office (NSW) Counsel for the Sixth Respondent: L Walker Solicitors for the Sixth Respondent: Deacons Date of Hearing: 7 December 2006 Date of Judgment: 7 December 2006
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