Davidson v Director-General, Justice and Community Safety Directorate

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Davidson v Director-General, Justice and Community Safety Directorate
Citation:	[2022] ACTSC 83
Hearing Dates:	5 May 2021, 6 May 2021 and 3 June 2021
Decision Date:	17 June 2021
Reasons Date:	21 April 2022
Before:	Loukas-Karlsson J
Decision:	See [439]
Catchwords:	HUMAN RIGHTS – prison facilities – separate confinement – access to open air and exercise when in separate confinement – Human Rights Act 2004 (ACT) – right to humane treatment while deprived of liberty – right to protection from cruel, inhuman or degrading treatment – right to protection from arbitrary detention
– s 45 Corrections Management Act 2007 (ACT) – Mandela Rules
Legislation Cited:	Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7, 22, 32, 38, 39
Corrections (Management of Segregation and Separate
Confinement) Policy 2020 (ACT) (NI2020-791)
Corrections Management (Management of Segregation and
Separate Confinement) Policy 2019 (ACT) (NI2019-381)
Corrections Management (Management Unit) Policy 2011
(NI2011-48)
Corrections Management (Separate Confinement) Operating
Procedure 2019 (ACT) (NI2019-384) cl 4.3 Corrections Management Act 2007 (ACT) pt 9.2, ch 10, ss 7, 8, 9, 12, 14, 45, 57, 152, 154, 183, 184, 188 Court Procedures Rules 2006 (ACT) r 1509 Crimes (Sentencing) Act 2005 (ACT) s 63
European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment, opened for signature 26 November 1987, ETS 126 (entered into force 1 February 1989)
European Convention for the Protection of Human Rights and
Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) arts 3, 8 Evidence Act 2011 (ACT) ss 4, 63, 136, 191 Human Rights Act 2004 (ACT) sch 1, ss 7, 8, 9, 10, 12, 18, 19, 24, 28, 30, 31, 32, 36, 40, 40A, 40B, 40C Human Rights Act 2019 (Qld) s 58 Human Rights Amendment Act 2008 (ACT) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 7, 9, 10 Legislation Act 2001 (ACT) ss 132, 139, 140 Official Visitor Act 2012 (ACT)
Cases Cited:	AB v The Queen [1999] HCA 46; 198 CLR 111 Ananyev and Others v Russia (European Court of Human Rights, Application Nos. 42525/07 and 60800/08, 10 January 2012) Andrews v Thomson [2018] ACTCA 53; 340 FLR 439 Application for Bail by HL (No 2) [2017] VSC 1
Australian Leisure and Hospitality Group v Director of Liquor
Licensing [2012] WASC 463
Avondale Motors (Parts) Pty Ltd v Federal Commissioner of
Taxation (1971) 45 ALJR 280 Baker v Director of Public Prosecutions (Vic) [2017] VSCA 58; 270 A Crim R 318 Baker v The Queen [2004] HCA 45; 223 CLR 513 Bare v IBAC [2015] VSCA 197; 326 ALR 198 Callanan v Attendee Z [2013] QSC 342; [2014] 2 Qd R 11 Castles v Secretary, Department of Justice [2010] VSC 310; 28 VR 141 Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 Certain Children v Minister for Families and Children [2016] VSC 796; 51 VR 473 CNK v The Queen [2011] VSCA 228; 32 VR 641
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of
Taxation (1981) 147 CLR 297 De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111; 48 VR 647 Director of Public Prosecutions (ACT) v Close [2015] ACTSC 10; 293 FLR 133 Director of Public Prosecutions (ACT) v Graham [2018] ACTCA 23; 13 ACTLR 280 Director of Public Prosecutions (ACT) v Nikro [2017] ACTSC 15; 265 A Crim R 158 Director of Public Prosecutions (Vic) v Faure [2005] VSCA 91; 12 VR 115 Director of Public Prosecutions v Ali (No 2) [2010] VSC 503 Director of Public Prosecutions v Kaba [2014] VSC 52; 44 VR 526 Director of Public Prosecutions v Leys [2012] VSCA 304; 44 VR 1
Eastman v Chief Executive of the Department of Justice and
Community Safety [2011] ACTSC 33
Eastman v Chief Executive Officer of the Department of Justice
and Community Safety [2010] ACTSC 4; 4 ACTLR 161 Geddes v The Queen [2012] NSWCCA 94 Haigh v Ryan [2018] VSC 474 Hakimi v Legal Aid Commission [2009] ACTSC 48; 3 ACTLR 127 Hoare v The Queen (1989) 167 CLR 348
Islam v Director-General of the Justice and Community Safety
Directorate [2015] ACTSC 20
Islam v Director-General, Justice and Community Safety
Directorate [2021] ACTSC 33
Islam v Director-General, Justice and Community Safety
Directorate (No 3) [2016] ACTSC 27 Kalashnikov v Russia [2002] ECHR 596; 36 EHRR 34 KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 Kracke v Mental Health Review Board [2009] VCAT 646; 29 VAR
1
Kudla v Poland (2002) 35 EHRR 11 Manga v Attorney-General [2000] 2 NZLR 65
Miles v Director-General of the Justice and Community Safety
Directorate [2016] ACTSC 70 Minogue v Dougherty [2017] VSC 724 Minogue v Thompson [2021] VSC 56 Moiseyev v Russia (European Court of Human Rights, Application No 62936/00, 9 October 2008) Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 Monaghan v ACT (No 2) [2016] ACTSC 352; 315 FLR 305 Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78
Muršić v Croatia (European Court of Human Rights, Application
No 62936/00, 6 April 2009) Neilsen v Attorney-General [2001] 3 NZLR 433
Nicolae Virgiliu Tănase v Romania [2019] ECHR 491
Nigro v Secretary to the Department of Justice [2013] VSCA 213; 41 VR 359
Noone, Director of Consumer Affairs Victoria v Operation Smile
(Australia) Inc [2012] VSCA 91; 38 VR 569 Olsson v Sweden (No 1) (European Court of Human Rights, Application No 10465/83, 24 March 1988) Owen v Crown House Engineering Ltd [1973] 3 All ER 618 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254
PJB v Melbourne Health (Patrick’s Case) [2011] VSC 327; 39 VR
373 Poltoratskiy v Ukraine (European Court of Human Rights, Application No 38812/97, 29 April 2003) Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 R (Gillan) v Commissioner of Police for the Metropolis [2006] 2 WLR 537 R (Limbuela) v Home Security [2006] 1 AC 396 R v Binse [2014] VSC 253 R v Davidson [2018] ACTSC 227 R v Forsyth [2013] ACTSC 179; 281 FLR 62 R v Oakes [1986] 1 SCR 103 R v QX (No 2) [2021] ACTSC 244 R v Smith (Edward Dewey) [1987] 1 SCR 1045 Re Application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235
Re Application under Major Crimes (Investigative Powers) Act
2004 [2009] VSC 381; 24 VR 415 Slaveski v Smith [2012] VSCA 25; 34 VR 206 Sleiman v Commissioner of Corrective Services [2009] NSWSC 304 Taunoa v Attorney-General (2004) 7 HRNZ 379 Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 Tognolini v The Queen [2012] VSCA 311 Victoria Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 Wainwright v United Kingdom (2007) EHRR 40 WBM v Chief Commissioner of Police [2012] VSCA 159; 43 VR
446
Whelan v Governor of Mountjoy Prison [2015] IEHC 273
Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50
Texts Cited:	Andrew Coyle and Helen Fair, A Human Rights Approach to Prison Management: Handbook for Prison Staff (International Centre for Prison Studies, 3rd ed, 2018)
Council of Europe, Report to the Swedish Government on the visit
to Sweden carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) from 15 to 25 February 1998, CPT/Inf (2009) 34 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Second General Report [CPT/Inf (92) 3] Explanatory Statement, Corrections Management Bill 2006 (ACT) Explanatory Statement, Human Rights Amendment Act 2008 (ACT) Explanatory Statement, Human Rights Amendment Bill 2007 (ACT)
Mirko Bagaric, Richard Edney and Theo Alexander, ‘(Particularly) Burdensome Prison Time Should Reduce Imprisonment Length – and Not Merely in Theory’ (2014) 38 Melbourne University Law
Review 409 Sharon Shalev, A Sourcebook on Solitary Confinement (Mannheim Centre for Criminology, London School of Economics, 2008) Standard Guidelines for Corrections in Australia (revised 2012) United Nations Human Rights Committee, General Comment No
20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or
Degrading Treatment or Punishment), 40th sess, HRC (10 March 1992) United Nations Human Rights Committee, General Comment No 35: Article 9 (Liberty and Security of Person), HRC (16 December 2014) United Nations Office for Project Services, Technical Guidance
for Prison Planning: Technical and Operational Considerations
Based on the Nelson Mandela Rules (2016) United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Parties:	Nathan James Davidson (Plaintiff) Director-General, Justice and Community Safety Directorate (Defendant) ACT Human Rights Commissioner (Intervenor)
Representation:	Counsel
S Brenker (Plaintiff) H Younan SC with J Dempster (Defendant)
S Fitzgerald (Intervenor)
Solicitors
Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant) ACT Human Rights Commission (Intervenor)
File Number:	SC 328 of 2020
LOUKAS-KARLSSON J:

CONTENTS

Introduction	6
Agreed Facts	6
Issues for Determination	9
Orders Sought	9
Relevant Legislation	10
Evidence	15
Issue One: What is the proper construction of s 45 of the Corrections	36
*Management Act*?
Issue Two: What is the proper construction of cl 4.3 of the Corrections	54
*Management (Separate Confinement) Operating Procedure 2019*?
Issue Three: By providing the plaintiff with access to the Rear Courtyard, in	55
accordance with cl 4.3 or otherwise, has the defendant acted consistently with s 45 of the Corrections Management Act?
Issue Four: On the proper construction of s 45 of the Corrections	63
*Management Act* and cl 4.3 of the Corrections Management (Separate **Confinement) Operating Procedure 2019, is cl 4.3 valid?**
Issue Five: Has the defendant acted consistently with the Human Rights	64
*Act*?
Issue Six: If the plaintiff is entitled to relief, what is the appropriate form of	79
relief?
Orders	83
Introduction

1. Nathan James Davidson (the plaintiff) was a sentenced detainee at the Alexander Maconochie Centre (AMC), after being sentenced to full-time imprisonment for six years and nine months, with a non-parole period of three years and eight months: R v Davidson [2018] ACTSC 227 (R v Davidson). During his time at the AMC as a sentenced detainee, the plaintiff was held in solitary or separate confinement and placed in the Management Unit for a total of 63 days. When placed in the Management Unit, the plaintiff was granted access to a small adjoining area connected to his cell enclosed by four walls and a mesh ceiling (rear courtyard). The plaintiff was not permitted to use a larger purpose-built exercise yard located outdoors (general exercise yard). The plaintiff brought proceedings against the Director-General of the Justice and Community Safety Directorate (the defendant) complaining that the
defendant’s practice of using the rear courtyard does not comply with its obligations
under the Corrections Management Act 2007 (ACT) (Corrections Management Act) and is unlawful under the Human Rights Act 2004 (ACT) (Human Rights Act). The
plaintiff sought a variety of declarations as to the validity of the defendant’s practice of
using the rear courtyard and a novel form of relief, namely, that the plaintiff’s sentence
be backdated by 63 days.
2. On 27 November 2020, the Human Rights Commissioner was granted leave by McWilliam AsJ to intervene in the proceedings pursuant to s 36 of the Human Rights Act. The hearing proceeded before me on 5 May, 6 May, and 3 June 2021. On 17 June 2021, I made the following declarations:

(a) A declaration that access to the rear courtyard of the Management Unit of the AMC does not comply with s 45 of the Corrections Management Act;
(b) A declaration that cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) (NI2019-384) is invalid as it is inconsistent with s 45 of the Corrections Management Act.

On that occasion, I also refused to make an order that the plaintiff’s sentence of
imprisonment be taken to have started on 19 October 2017, that is, taking into account the 63 days in the Management Unit, pursuant to s 40C(4) of the Human Rights Act and or s 63(1) of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act). I reserved reasons as to the declarations made and the refusal to grant the novel relief, as well as reserving my decision in respect of the declarations sought concerning the Human Rights Act. Reasons and the decisions concerning the Human Rights Act declarations now follow.

Agreed Facts

4. Pursuant to s 191 of the Evidence Act 2011 (ACT) (Evidence Act), the Court received an agreed statement of facts that the parties confirmed were not in dispute. Those matters are as follows.
5. The defendant is a public authority for the purposes of s 40 of the Human Rights Act.
6.       The plaintiff was detained at the Alexander Maconochie Centre (the AMC) from 21 December 2017. On 25 May 2018, the plaintiff was sentenced to full-time imprisonment for drug trafficking offences and receiving stolen property: R v Davidson. The aggregate
sentence imposed on the plaintiff was six years and nine months’ imprisonment

commencing on 20 December 2017 and expiring on 19 September 2024. A non-parole
period of three years and eight months expiring on 19 August 2021 was fixed.
7.       The Management Unit of the AMC has 14 cells of identical dimension. There are 9 cells
on the “hard side” and 5 cells on the “soft side”.
8.       Each cell in the Management Unit can house one detainee and has an adjoining rear courtyard which is accessible through an internal door of the cell (rear courtyard).
9.       A rear courtyard:

(a) Is 2330mm (2.33m) wide by 3600mm (3.6) long, with a total area of 8.39m²;
(b) Is of a similar area and dimension to a cell in the Management Unit;
(c) Has four block walls, concrete flooring, and is covered overhead by a metal mesh;
(d) Contains an access door with a built-in window looking outwards.
10.     The Management Unit also has two general exercise yards which are annexed to the Management Unit building complex on either side of the building (general exercise yard):

(a) One general exercise yard attached to the “hard side” of the Management
Unit; and

(b) One general exercise yard attached to the “soft side” of the Management
Unit.

11. The general exercise yard:

(a) On the “hard side” is 4840mm (4.84m) wide by 7250mm (7.25m) long, with
a total area of 35.09m²;

(b) Has two concrete brick walls, concrete flooring, and two walls and the celling are made of metal mesh, which is wider than the mesh cover overhead of the rear courtyard;
(c) Has two sets of metal exercise bars (a chin up bar and a dip bar) which allow detainees to perform body weight exercises.

The plaintiff was held in segregation or separate confinement in the “hard side” of the
Management Unit (confinement period) as follows:

(a)

Separate confinement from 14 October 2018 to 14 October 2018 in Cell M.11A;

(b)

Separate confinement from 14 October 2018 to 20 October 2018 in Cell M.02A;
(c) Segregation from 31 December 2018 to 31 December 2018 in Cell M.01A;
(d) Segregation from 31 December 2018 to 7 January 2019 in Cell M.14A;

(e)

Investigative segregation from 12 March 2019 to 15 March 2019; separate confinement from 15 March 2019 to 19 March 2019; segregation from 19 March 2019 and 9 April 2019 (amounting to a total confinement period of 12 March 2019 to 9 April 2019 in Cell M.02A);

(f)

Investigative segregation from 13 April 2019 to 16 April 2019, and separate confinement from 16 April 2019 to 20 April 2019 (amounting to a total confinement period of 13 April 2019 to 20 April 2019 in Cell M.02A);
(g) Segregation from 20 April 2019 to 29 April 2019 in Cell M.02A;

(h)

Separate confinement from 9 September 2019 to 9 September 2019 in Cell M.03A;
(i) Separate confinement from 9 September 2019 to 11 September 2019 in Cell M.02A; and

(j) Separate confinement from 11 September 2019 to 16 September 2019 in Cell M.09A.
13. By reason of the matters in the preceding paragraph:

(a) The plaintiff was held in the “hard side” of the Management Unit:

i.

For six consecutive nights from 14 October 2018 to 20 October 2018;

ii.

For seven consecutive nights from 31 December 2018 to 7 January 2018;
iii. For 28 consecutive nights from 12 March 2019 to 9 April 2019;
iv. For seven consecutive nights from 13 April 2019 to 20 April 2019;

v.

For eight consecutive nights from 21 April 2019 to 29 April 2019. The original segregation order was for the period 20 April 2019 to 27 April 2019, however, the plaintiff was transferred to the Crisis Support Unit on 20 April 2019 before being returned to the
Management Unit on 21 April 2019. On 27 April 2019, the plaintiff’s
segregation order was extended for three days to 29 April 2019;
and
vi. For seven consecutive nights from 9 September 2019 to 16 September 2019.

(b) The confinement period was a total of 63 days.
14. During the confinement period:

(a) When the internal door to the rear courtyard was remotely locked, the plaintiff was required to request access to the rear courtyard in order to remotely unlock the door and thereby access the rear courtyard;
(b) The internal door to the rear courtyard was required to be remotely locked
and physically shut by the detainee during the “lunch lock-in”, which
occurred each day between approximately 11:30AM and 1:30PM for a duration of 60-90 minutes and prior to the evening muster at 6:00PM each day. The internal door to the rear courtyard was also required to be locked in the event that corrections officers were required to respond to incidents or emergency situations within the AMC;

(c) The plaintiff was not given access to the general exercise yard.
15. The Corrections Management (Management Unit) Policy 2011 (ACT) (NI2011-48) was in force between 15 February 2011 and 12 June 2019 (the 2011 Operating Policy).
16. The Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) (NI2019-384) has been in force since 13 June 2019 and continues to operate (the 2019 Operating Procedure).

Issues for Determination

17. The agreed issues to be determined in this matter are as follows:

(a) What is the proper construction of s 45 of the Corrections Management Act?

(b)

What is the proper construction of cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019?

(c)

By providing the plaintiff with access to the Rear Courtyard, in accordance with cl 4.3 or otherwise, has the defendant acted consistently with s 45 of the Corrections Management Act?

(d)

On the proper construction of s 45 of the Corrections Management Act and cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019, is cl 4.3 valid?
(e) Has the defendant acted consistently with the Human Rights Act?
(f) If the plaintiff is entitled to relief, what is the appropriate form of relief?

Orders Sought

18. By way of the further amended originating application filed 13 May 2021, the plaintiff seeks the following orders:

(a) A declaration that access to the rear courtyard of the Management Unit at the AMC does not comply with s 45 of the Corrections Management Act.
(b) A declaration that cl 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with s 45 of the Corrections Management Act.
(c) A declaration pursuant to s 40C of the Human Rights Act that the defendant
has breached the plaintiff’s human rights under ss 10(1)(b), 18(1) and (2)
and 19(1) of the Human Rights Act.

(d) A declaration pursuant to s 32 of the Human Rights Act that cl 4.3 of the
2019 Operating Procedure is incompatible with the plaintiff’s human rights:

i. Not to be treated or punished in a cruel, inhuman or degrading way pursuant to s 10(1)(b) of the Human Rights Act; and/ or
ii. To liberty and security of person and to not be arbitrarily detained pursuant to s 18(1) of the Human Rights Act; and/or
iii. To not be deprived of liberty except on the grounds and in accordance with the procedures established by law pursuant to s 18(2) of the Human Rights Act; and/ or
iv. To be treated with humanity and with respect for the inherent dignity of the human person while deprived of liberty pursuant to s 19(1) of the Human Rights Act.
(e) An order that the plaintiff’s sentence of imprisonment made by the Supreme
Court of the ACT on 25 May 2018 be taken to have commenced on 19 October 2017 pursuant to s 40C(4) of the Human Rights Act and/ or s 63(1) of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act) with the effect that:

i. The plaintiff’s sentence of imprisonment is taken to expire on 18
July 2024; and
ii. The plaintiff’s non-parole period is taken to expire on 17 June
2021.

Relevant Legislation

19. This matter involves consideration of provisions in the Corrections Management Act, the Human Rights Act, the Crimes (Sentencing) Act, as well as notifiable instruments. It is appropriate that the relevant provisions are first set out here. Where relevant, sections are extracted later in the judgment.

Corrections Management Act

20. The sections of the Corrections Management Act that are referred to in this judgment are ss 7, 8, 9, 12, 14 and 45. It is appropriate to first set out s 45 and then s 12, before ss 7, 8, 9 and 14.

21. Section 45 states:

45 Access to open air and exercise

(1) The director-general must ensure, as far as practicable, that detainees—

(a) have access to the open air for at least 1 hour each day; and
(b) can exercise for at least 1 hour each day.
(2) The standards under subsection (1) may both be satisfied during the same hour on any
day.
(3) For chapter 10 (Discipline), this section is taken to provide an entitlement for each detainee
in relation to access to the open air and exercise.
22. Section 12 relevantly provides:
12 Correctional centres—minimum living conditions

(1)

To protect the human rights of detainees at correctional centres, the director-general must ensure, as far as practicable, that conditions at correctional centres meet at least the following minimum standards:
…

(e) detainees must have reasonable access to the open air and exercise;
…
23. Section 7 of the Corrections Management Act details the objects of the Act:
7 Main objects of Act

The main objects of this Act are to promote public safety and the maintenance of a just
society, particularly by—

(a) ensuring the secure detention of detainees at correctional centres; and
(b) ensuring justice, security and good order at correctional centres; and
(c) ensuring that detainees are treated in a decent, humane and just way; and
(d) promoting the rehabilitation of offenders and their reintegration into society.

24. Section 8 establishes how correctional services must operate to achieve the main objects in s 7:
8 Management of correctional services

Correctional services must be managed so as to achieve the main objects of this Act,
particularly by—

(a) ensuring that public safety is the paramount consideration in decision-making about the management of detainees; and
(b) ensuring respect for the humanity of everyone involved in correctional services, including detainees, corrections officers and other people who work at or visit correctional centres; and
(c) ensuring behaviour by corrections officers that recognises and respects the inherent dignity of detainees as individuals; and
(d) ensuring that harm suffered by victims, and their need for protection, are considered appropriately in decision-making about the management of detainees.

25. Section 9 sets out how detainees in correctional centres in the ACT are to be treated:
9 Treatment of detainees generally

Functions under this Act in relation to a detainee must be exercised as follows:

(a) to respect and protect the detainee’s human rights;
(b) to ensure the detainee’s decent, humane and just treatment;
(c) to preclude torture or cruel, inhuman or degrading treatment;
(d) to ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;
(e) to ensure the detainee’s conditions in detention comply with section 12 (Correctional
centres—minimum living conditions);

(f) if the detainee is an offender—to promote, as far as practicable, the detainee’s
rehabilitation and reintegration into society.

26. Section 14 sets out the procedure for the defendant to make policies consistent with the Corrections Management Act. The 2011 Operating Policy and the 2019 Operating Procedure were enacted pursuant to s 14. Section 14 states:
14 Corrections policies and operating procedures

(1) The director-general may make corrections policies and operating procedures, consistent
with this Act, to facilitate the effective and efficient management of correctional services.
(2) Each corrections policy or operating procedure is a notifiable instrument.

Note 1 A notifiable instrument must be notified under the Legislation Act.

Note 2

The amendment or repeal of a corrections policy or operating procedure is also a notifiable instrument. See the Legislation Act, section 46 (Power to make instrument includes power to amend or repeal).
(3) Each corrections policy or operating procedure—

(a) must be available for inspection by anyone at each correctional centre; and

(b)

may be made available for inspection at any other place decided by the director-general.

2011 Operating Policy

27. The key matters from the 2011 Operating Policy are the following:
Use of handcuffs and restraints
The movement of prisoners using restraints will be at the discretion of the CO3.
The use of restraints for other purposes will be in accordance with the Use of Restraints
Policy and Procedure, and the Use of Force Policy and Procedure.
Access to exercise
Prisoners in the Management Unit will have access to the exercise yard at the rear of their cell. Prisoners may also have access to a larger exercise yard in the unit, subject
to the operational requirements of the unit and the prisoner’s conformity to the unit’s
routine. The CO4/CO3s will determine access to the yard.

2019 Operating Procedure

28. Clause 4.3 of the 2019 Operating Procedure reads:

4.3 The open rear cell door will count as the minimum one (1) hour of fresh air and
exercise.

Human Rights Act

29. The plaintiff claims that the defendant did not comply with his human rights under the Human Rights Act. The substantive rights relied upon by the plaintiff are: ss 19(1), 10(1)(b), 18(1) and (2) of the Human Rights Act. Also relevant to this judgment are the following sections: ss 28, 30, 40, 40A, 40B and 40C. The sections mentioned herein will now be set out.
30. Section 19 of the Human Rights Act provides:
19 Humane treatment when deprived of liberty

(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent
dignity of the human person.
(2) An accused person must be segregated from convicted people, except in exceptional
circumstances.

Note An accused child must also be segregated from accused adults (see s 20 (1))

(3) An accused person must be treated in a way that is appropriate for a person who has not
been convicted.
31. Section 10 relevantly states:
10 Protection from torture and cruel, inhuman or degrading treatment etc

(1) No-one may be—
…

(b) treated or punished in a cruel, inhuman or degrading way.
…
32. The relevant subsections from s 18 in this matter are (1) and (2), which provide:
18 Right to liberty and security of person

(1) Everyone has the right to liberty and security of person. In particular, no-one may be
arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the
procedures established by law.
…
33. Section 28 of the Human Rights Act establishes how human rights may be limited:
28 Human rights may be limited

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably
justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including
the following:

(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
34. Section 30 is a rule of interpretation and provides:
30 Interpretation of laws and human rights

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

35. It is an agreed fact that the defendant is a public authority for the purposes of ss 40 and 40A of the Human Rights Act. Section 40 states:
40 Meaning of public authority

(1) Each of the following is a public authority:

(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
(d) a Minister;

(e) a police officer, when exercising a function under a Territory law;
(f) a public employee;

(g)

an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).

Note

A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).
(2) However, public authority does not include—

(a) the Legislative Assembly, except when acting in an administrative capacity; or
(b) a court, except when acting in an administrative capacity.

36. Section 40A provides:

40A Meaning of function of a public nature

(1) In deciding whether a function of an entity is a function of a public nature, the following
matters may be considered:

(a) whether the function is conferred on the entity under a territory law;
(b) whether the function is connected to or generally identified with functions of government;
(c) whether the function is of a regulatory nature;
(d) whether the entity is publicly funded to perform the function;
(e) whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.
(2) Subsection (1) does not limit the matters that may be considered in deciding whether a
function is of a public nature.
(3) Without limiting subsection (1) or (2), the following functions are taken to be of a public
nature:

(a) the operation of detention places and correctional centres;
(b) the provision of any of the following services:
(i) gas, electricity and water supply;

(ii) emergency services;
(iii) public health services;

(iv) public education;
(v) public transport;
(vi) public housing.

37. Section 40B states:

40B Public authorities must act consistently with human rights

(1) It is unlawful for a public authority—

(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the
Territory and—

(a)

the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

(3) In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
38. Section 40C of the Human Rights Act establishes the procedure for legal proceedings in relation to public authority actions:

40C Legal proceedings in relation to public authority actions

(1) This section applies if a person—

(a) claims that a public authority has acted in contravention of section 40B; and
(b) alleges that the person is or would be a victim of the contravention.
(2) The person may—

(a) start a proceeding in the Supreme Court against the public authority; or
(b) rely on the person’s rights under this Act in other legal proceedings.
(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day
(or last day) the act complained of happens, unless the court orders otherwise.
(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers
appropriate except damages.
(5) This section does not affect—

(a)

a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b) a right a person has to damages (apart from this section).

Note See also s 18 (7) and s 23.
(6) In this section:
public authority includes an entity for whom a declaration is in force under section 40D.

Crimes (Sentencing) Act

39. In seeking the novel relief to have his sentence backdated, the plaintiff relied upon s 63 of the Crimes (Sentencing) Act. That section states:
63 Start of sentences—backdated sentences

(1) The court may direct that a sentence of imprisonment is taken to have started on a day
before the day the sentence is imposed.

Evidence

Evidence of the Plaintiff

First Affidavit

The plaintiff prepared an affidavit affirmed on 15 September 2020 (the plaintiff’s first
affidavit) which was tendered in the proceedings. In the plaintiff’s first affidavit, the
plaintiff deposed that he has a longstanding diagnosis of bipolar disorder. The plaintiff stated that during his time in the AMC, he had been ordered to spend time in the Management Unit for disciplinary reasons.
In the plaintiff’s first affidavit, the plaintiff stated that the rear courtyard essentially

formed part of the cell. The plaintiff noted that the rear courtyard provides an area for
detainees in the Management Unit to smoke.

Second Affidavit

The plaintiff prepared a second affidavit affirmed on 7 April 2021 (the plaintiff’s second
affidavit). In the plaintiff’s second affidavit, the plaintiff confirmed that he spent a total
of 63 days in the Management Unit.
The plaintiff’s second affidavit responds to affidavits in the proceeding relied on by the
defendant that describe the “hard side” of the Management Unit. The plaintiff confirmed
that he was a detainee that fell within the description of a person detained within the
“hard side” of the Management Unit. The plaintiff deposed that he was never given
access to the general exercise yard for the “hard side” during the confinement period.

44. The plaintiff stated that being in the rear courtyard made him feel that he was still in his cell because of the surrounding four concrete walls and its small size. The plaintiff deposed that there was no air circulation or breeze in the rear courtyard. The plaintiff stated that there was no direct sun and that if sunlight does come through, it is darkened by the mesh roof. The plaintiff opined that the rear courtyard did not give him adequate space to exercise, as he was unable to run or jog inside the space and was not provided with any exercise equipment during his time in the Management Unit.

In the plaintiff’s second affidavit, the plaintiff stated that in order to seek access to the
rear courtyard from his Management Unit cell, he used an intercom to buzz the
correctional officer’s station. If the plaintiff’s request was granted for time out in the rear
courtyard, the correctional officer would remotely open the rear cell door. The plaintiff’s
request was either granted or denied. To the plaintiff’s observation, there was no time
nor routine as to when a correctional officer would remotely unlock the door to the rear courtyard. The plaintiff had to ask permission for the door to the rear courtyard to be opened.

46. The plaintiff deposed that on some days during the confinement period, he was not granted access to the rear courtyard at all and remained in his cell for 24 hours. The plaintiff stated that he never refused to go into the rear courtyard.
47. The plaintiff again referenced that he has a longstanding diagnosis of bipolar disorder and stated that he informed the defendant of this diagnosis when he was first imprisoned in the AMC. The plaintiff noted that one of his general coping techniques for his mental condition is regular, strenuous exercise.

In the plaintiff’s second affidavit, the plaintiff stated that being in a Management Unit
cell for 24 hours a day severely impacted his mental and physical health. The plaintiff stated that he was made to feel anxious and depressed in his time in the Management Unit.

49. On 5 January 2019, the plaintiff completed a “prisoner’s complaint form” and
complained about being in a cell for 24 hours per day. The plaintiff deposed that the next day, a custodial officer responded to his complaint and said words to the effect of
“the current Management Unit regime provides for access to fresh air and sunlight in
yard at the rear of cell for min 1 hour each day”. As the complaint was not resolved, the
complaint was escalated to an officer at CO3 level. The plaintiff stated that the CO3
level officer wrote that the “Management Unit is not as comfortable as other housing

units but is still compliant with human rights legislation”. A copy of the plaintiff’s
complaint form was exhibited to the plaintiff’s second affidavit.
50. The plaintiff was then moved back to regular housing in the AMC because of his mental health concerns. Thereafter, the plaintiff was again put in segregation and separate confinement in March 2019. The plaintiff stated that being confined for 24 hours a day made him feel depressed.

51.     On 14 March 2019, the plaintiff again complained to the AMC about the lack of open air and exercise and the impact it was having on his mental health.
52.     On 20 March 2019, the plaintiff contemplated hurting and killing himself. In the plaintiff’s
second affidavit, the plaintiff detailed an attempt to suicide via hanging. The plaintiff
ceased the attempt and contacted corrections’ staff requesting immediate mental
health assistance.
53.     On 22 March 2019, the plaintiff forwarded his complaints about the lack of open air and exercise to the Ombudsman. Copies of the complaints made in March 2019 were
exhibited to the plaintiff’s second affidavit.
54.     The plaintiff stated that based on his observations, the Management Unit general exercise yard was the same as the general exercise yards in Sentence Unit 1 and 2 and Remand Unit 1 and 2 at the AMC. The plaintiff however noted that the general exercise yards in the sentence and remand units have more exercise equipment.

Oral Evidence

55.     The plaintiff gave oral evidence at the hearing. The plaintiff confirmed that when he was first remanded in custody at the AMC, he was placed in Sentenced Unit 1 as an unplaced prisoner for his first year in custody. The plaintiff stated that he would utilise the exercise equipment that was available in the exercise yard annexed to Sentenced Unit 1. This equipment included a general exercise machine that allows a user to perform various exercises including leg press, bench press, and arm curls.
56.     The plaintiff gave evidence that he was integrated with the remainder of the general prison population and there were 38 detainees in Sentenced Unit 1. The plaintiff noted
that it became a “pretty hostile and violent yard”. The plaintiff confirmed that he had
assaulted several people during his time in custody at the AMC and that he had been
involved in “physical contests”. The plaintiff stated that certain detainees were at risk
by being assaulted by him.
57.     When asked in examination-in-chief why he had been placed in the Management Unit, the plaintiff confirmed that the first occasion was on account of him lighting a fire in his cell. The plaintiff gave evidence that the remaining times he was placed in the Management Unit was due to him participating in fighting. The plaintiff stated he had never threatened a Corrections Officer, nor had he been violent to AMC staff. The plaintiff gave evidence that he is not a smoker and that he never smoked during his time in the AMC.
58.     The plaintiff was asked about the process of being moved to the Management Unit from the general accommodation. The plaintiff gave evidence that AMC staff would arrive at his cell in general accommodation, direct him to put his hands through the hatch or direct him to stand at the back of the cell and place his hands behind his head. Thereafter, he would be restrained and escorted to the Management Unit. Once inside a Management Unit cell, the plaintiff stated that the AMC staff then proceed to remove the handcuffs, perform a strip search and then close the door.
59.     The plaintiff stated that initially, the process of seeking access to the rear courtyard was not explained to him. The plaintiff recalled AMC staff saying there was no smoking in the cell and that if detainees wanted to smoke, they would have to do so out the back of the cell. The plaintiff stated he remembered predominantly asking to access the
general exercise yard and then over time, he learnt to “buzz up” and request access to
the rear courtyard. The plaintiff gave evidence that “buzz up” referred to utilising the

intercom panel in the cell to contact the AMC staff that are responsible for the
Management Unit.
60.     The plaintiff gave evidence that to get access to the rear courtyard, he learnt that he
had to “buzz” and “then pretty much beg for [AMC staff] to open the back door”. The
plaintiff stated that there were occasions where he was refused access to the rear
courtyard because he “didn’t ask politely”. The plaintiff gave evidence that AMC staff
denied his request for access to the rear courtyard on several occasions and that he was not provided with a reason for a denial. The plaintiff further stated that he had been
told on occasion “maybe later” or “I’m busy” by AMC staff. The plaintiff stated that he
was granted access to the rear courtyard on other occasions.
61.     The plaintiff noted that it was hard to determine the proportion of times he was told
“yes”, “no”, “maybe later” by AMC staff. The plaintiff also stated that there were days
he was in the Management Unit where he did not ask to be granted access to the rear courtyard. The plaintiff noted that there were occasions that he did not want to ask in light of been refused access at time and feeling defeated. The plaintiff stated he felt it was a sign of weakness to ask.

The plaintiff stated that his impression of the “hard side” of the Management Unit was
that AMC staff intentionally made his time in the Management Unit hard on him. The

plaintiff stated that the “hard side” was designed to be hard on the detainee. The plaintiff
described it as “physically hard and mentally hard”.
63.     When asked about the occasions he was granted access to the rear courtyard, the plaintiff confirmed that the door is manual and he physically had to push it open after it was unlocked electronically. The plaintiff was asked how long he would stay in the rear
courtyard when it was accessible and he responded that the “general understanding”

was for access for one hour. The plaintiff noted that it could be more than one hour or
could be less than one hour depending on what was occurring in the AMC.
64.     The plaintiff stated that during the day if the door to the rear courtyard had been opened in the morning, detainees would be directed to close the door to facilitate the lunch lock- in or any security response that the Management Unit staff needed to attend to. When asked what the process would be if he wanted to have further access into the rear courtyard after being directed to close the door for lunch lock-in, the plaintiff gave
evidence that he would have to use the intercom to “buzz up” and request access again.
The plaintiff stated that on some occasions he would be granted further access and on
others, he was told, “you’ve already had your hour” or “maybe later”.
65.     The plaintiff gave evidence that the intercom was able to be turned off by Management Unit staff and stated that he experienced the intercom being turned off on multiple occasions. The plaintiff stated that when the intercom was switched off, he was unable to contact the Management Unit staff and his only option of communicating with staff was to kick the cell door or yell. The plaintiff stated he presumed Management Unit staff would turn off an intercom if he was bothering them.
66.     The plaintiff was asked about his bipolar affective disorder. The plaintiff gave evidence that the symptoms he experiences includes periods of heightened activity, which are then followed by long periods of severe depression. In a period of heightened activity, the plaintiff described being in a manic phase, getting less sleep with heightened senses and extreme beliefs. The plaintiff stated that when he was first remanded in AMC, he experienced periods of being low, where he had little energy and felt negative and unmotivated.
67.     The plaintiff confirmed that he was treating the depression when he was first remanded in the AMC with an antidepressant. The plaintiff stated that he also found that exercise and a healthy lifestyle help to manage his symptoms. Before being remanded in the AMC, the plaintiff exercised every day, as much as he could. When in Sentenced Unit 1, the plaintiff would attempt to perform weight exercises for at least two hours each morning and then would remain active throughout the day, such as by jogging or walking. The plaintiff stated that when he could not do two hours of weights and
walking, he would feel like “shit” as he relied upon exercise significantly as a coping
technique.
68.     The plaintiff stated that while he was in the Management Unit, he felt that he was at the lowest point of his entire life. The plaintiff gave evidence about an attempted suicide that occurred while he was in the Management Unit and noted it was due to being aware he was spending a long time in the AMC and the way he was going, he was likely to spend a large proportion of this time in the Management Unit.
69.     The plaintiff was referred to the list which contained particulars of when he was in the Management Unit, including the duration of time he spent and the reason he was in there. In reference to the occasion where the plaintiff spent 28 days in the Management Unit, the plaintiff said it made him feel like he was never getting out and that he was going to be in the cell forever.
70.     The plaintiff confirmed he did not take issue with being placed in the Management Unit and accepted that if he misbehaved in the AMC, there were to be consequences for that conduct. The plaintiff stated that his issue was with the treatment that came with being in the Management Unit. The plaintiff stated he wanted to utilise the general exercise yard and that he was not permitted to do so.
71.     When asked why the plaintiff wanted access to the general exercise yard, the plaintiff stated that the general exercise yard was open to air, provided adequate space for him to exercise and equipment for him to train with. Of the rear courtyard, the plaintiff stated,
“I suppose I’ve always seen the rear courtyard as part of the cell”. The plaintiff stated
that he did not see the rear courtyard as encapsulating time out of his cell. The plaintiff gave evidence that he felt the general exercise yard provided open air because he would be able to see the surrounding landscape, as well as be able to feel the sun and wind on his skin. In respect of adequate space, the plaintiff noted that if he were to lie
down in the rear courtyard, he would be “touching end to end” which was inadequate.
72.     The plaintiff was shown photographs of the general exercise yard and confirmed that he had never been in that area of the Management Unit. The plaintiff noted that he was able to see the general exercise yard from when he was using the telephone in the Management Unit.
73.     In cross-examination the plaintiff confirmed that there were occasions that he was denied further access to the rear courtyard in circumstances where he had already accessed the rear courtyard for one hour that day. The plaintiff further confirmed there were occasions where he was denied access in circumstances where he had not been granted access to the rear courtyard at all on the relevant day. The plaintiff was asked about occasions where he initially requested access and was denied, and whether the plaintiff would subsequently request access to the rear courtyard at a later time that day. The plaintiff gave evidence that he generally would not ask again because he was
too ashamed and did not want to utilise the intercom to “beg”.

The plaintiff was taken to an exhibit of the plaintiff’s second affidavit, the prisoner
complaint form. It was put to the plaintiff that the form did not contain a complaint as to denial of access to the rear courtyard. The plaintiff stated that the denial of access was
“to be implied” from his complaint that he was “locked down 24 hours a day”. The

plaintiff accepted that the complaint form did not explicitly contain a complaint that the
plaintiff had ever been denied access to the rear courtyard.
75.     The plaintiff was taken to a further exhibit of his second affidavit, a handwritten note addressed to the Ombudsman. The plaintiff accepted that the note to the Ombudsman did not contain a complaint as to the denial of access to the rear courtyard. The plaintiff accepted that the note only contained a complaint of being denied access to open air and exercise.
76.    The plaintiff was referred to his evidence given in evidence-in-chief that the
Management Unit staff had the capacity to turn a detainee’s intercom off and that as a
result, there were occasions where the plaintiff was unable to contact staff. The plaintiff
confirmed his evidence that when this arose, he would have to “kick the door” or yell to
get the attention of the staff. The plaintiff was then referred to an exhibit of his second affidavit which set out the Detainee Observations Forms of the plaintiff for the confinement period he spent in the Management Unit. The plaintiff accepted that there were hourly observations of himself while he was in his designated Management Unit
cell. The plaintiff however stated that the staff would merely come past and give “a
cursory look” when conducting observations. It was put to the plaintiff that he could
have requested access to the rear courtyard when the Management Unit staff were
conducting hourly observations. The plaintiff responded that he “suppose[d] I could
have begged and asked. Yes”.
77.    In re-examination, the plaintiff stated that his note to the Ombudsman and other complaints did not reference denial of access to the rear courtyard because his main complaint has always been that he did not consider the rear courtyard as an area that provided open air and exercise.

Evidence of Shannon Pickles

78. Mr Shannon Pickles prepared an affidavit affirmed on 3 February 2021, which was relied on by the plaintiff. Mr Pickles confirmed that since July 2017, he has been appointed as an Official Visitor, Corrections in accordance with s 57 of the Corrections Management Act.
79. As part of his role, Mr Pickles has undertaken inspections of correctional facilities in the ACT and has taken complaints from detainees, pursuant to the Official Visitor Act 2012 (ACT). In this capacity, Mr Pickles also provides regular written reports directly to the Minister for Corrections and Justice Health (the Minister).

In his affidavit, Mr Pickles confirmed he met with the plaintiff to hear the plaintiff’s
concerns about the Management Unit. Mr Pickles further confirmed that as a result of formal complaints received by Official Visitors in respect of the Management Unit, the Official Visitors submitted reports to the Minister. Mr Pickles noted that the reports do not name specific detainees but rather raise systemic issues to be dealt with by the
defendant’s staff and the Minister.

81.     Mr Pickles stated that issues concerning the operation of the Management Unit were also raised in a formal quarterly report for the period January to March 2019. In his
affidavit, Mr Pickles noted that the Minister’s response to the quarterly report for the
period January to March 2019 was received in around June 2019.
82.     Annexed to Mr Pickles’ affidavit was the response from the Minister, which relevantly
provided:
In all instances detainees within the Management Unit have been afforded at least the minimum amount of time out in accordance with the Corrections Management Act. This is in addition to where detainees have been able to access the small courtyards attached to their cells [rear courtyard], not inclusive of.
83.     Mr Pickles stated in his affidavit that he was aware that for a significant period of time, the defendant considered access to the rear courtyard for one hour as being sufficient to meet the required living conditions for detainees at the Management Unit. Mr Pickles deposed that he disagreed with the position of the defendant but the AMC management were firm in their view it was sufficient.
84.     Mr Pickles stated that he is of the view that a detainee in the “hard side” of the
Management Unit can be easily escorted to the general exercise yard to exercise and be in the open air. Mr Pickles confirmed that he has observed a rear courtyard and opined that it is not a space designed for exercise, in contrast to the general exercise yard. Mr Pickles stated that a rear courtyard has four solid walls and is covered. Mr Pickles noted that the level of cover overhead results in the rear courtyard not being exposed to unobstructed sunlight.
85.     Mr Pickles observed that detainees kept in the Management Unit are in conditions
which are “more difficult and intense”. Mr Pickles stated that the conditions of the
Management Unit are more severe than the ordinary circumstances of the AMC. Mr Pickles stated that it is very important that detainees who are in the Management Unit at least get the bare minimum of an hour of exercise in open air. Mr Pickles opined that the defendant ought to make available the general exercise yard, which was purpose built, to detainees in the Management Unit.
86.     Mr Pickles was not required for cross-examination and did not give oral evidence at the hearing.

Evidence of Timothy Rust

87. Mr Timothy Rust prepared an affidavit affirmed on 23 March 2021, which was relied upon by the defendant. Mr Rust subsequently took extended leave and was not able to attend the hearing to give oral evidence. The parties disagreed as to whether Mr Rust was “unavailable” within the meaning of s 4 of the Evidence Act dictionary and the
Court was not ultimately required to decide this question, nor whether s 63 of the Evidence Act had application. I ruled that pursuant to s 136 of the Evidence Act, the affidavit of Mr Timothy Rust could only be used for a limited purpose insofar as its
content was adopted by Mr Gregory Tarlinton. The following summary of Mr Rust’s

affidavit evidence therefore only references content that is adopted by Mr Gregory
Tarlinton, which is also subsequently summarised at [128]-[174].
88.     At the time of deposing his affidavit, Mr Rust was the Senior Director of Operations at the AMC and had been employed in that position since December 2017. Mr Rust confirmed that the Management Unit accommodates detainees who are placed under segregation or separate confinement.
89.     Mr Rust noted that segregation is the removal of a detainee from the regular prison population for one or more of the following reasons, in accordance with pt 6 of the
Corrections (Management of Segregation and Separate Confinement) Policy 2020
(ACT) (NI2020-791) and pt 9.2 of the Corrections Management Act:

(a) The safety of anyone else at the AMC, or security and good order at the AMC (safety and security segregation);
(b) The protection of the detainee (protective custody);
(c) To reduce the spread of disease (health segregation); or
(d) For investigation of an alleged disciplinary breach (investigative segregation).
90.     Mr Rust highlighted that separate confinement is the separation of a detainee from their regular accommodation as an administrative penalty for a disciplinary breach under ch
10 of the Corrections Management Act. Mr Rust’s affidavit also describes the procedure

for placing someone into the Management Unit, which need not be explicated in detail
here.
91.     Mr Rust noted that the Management Unit was constructed as part of the original building plans for the AMC and opened on 11 September 2008. The Management Unit has accommodated detainees who are under segregation and separate confinement since its opening and at any one time, can accommodate up to 14 detainees. Mr Rust stated that the Management Unit is staffed by two Corrections Officers and attended by the Duty Manager on a daily basis.
92.     Mr Rust confirmed that the Management Unit has 14 cells of identical dimensions. Each cell can house one detainee. The rear courtyard for each cell is identical in size and dimension and a rear courtyard itself is of a similar size and dimension to the cell. The door to the rear courtyard can be locked and unlocked electronically by staff but is only

able to be physically opened and closed by the detainee. Exhibited to Mr Rust’s affidavit were photographs of a rear courtyard of a “hard side” cell taken in or about October
2020. Mr Rust confirmed that the photographs depict the same state of the rear courtyard as would have been experienced by the plaintiff between October 2018 and
September 2019. The photographs of a rear courtyard and “hard side” cell are annexed to this judgment marked “Annexure A”.

Mr Rust’s affidavit also contains a description of the general exercise yards which are
attached to the Management Unit building complex on either side of the building. Mr
Rust stated that within the general exercise yard, there are two metal exercise “bars”
which allow detainees to perform body weight exercises. Mr Rust’s affidavit also
exhibited photographs of a general exercise yard taken in or about October 2020. The photographs of the general exercise yard are annexed to this judgment marked
“Annexure B”.

94. Mr Rust noted that the access doors to the general exercise yards do not have hatches for detainees to insert their hands through. Mr Rust stated that this made it impossible
for AMC staff to implement the Management Unit’s handcuffing procedure pursuant to
item 4.13 of the 2019 Operating Procedure.

Mr Rust’s affidavit also included a description of the “hard side” and the “soft side” of
the Management Unit. Mr Rust confirmed that the determination to place a detainee on either side of the Management Unit is dependent on whether the detainee is under segregation or separate confinement and, if they are under segregation, the type of
segregation order that has been made. Mr Rust further noted that the “hard side” is for

detainees who are being accommodated in the Management Unit for the following
reasons:

(a) Separate confinement due to a disciplinary breach under ch 10 of the Corrections Management Act;
(b) Investigative segregation; and
(c) Safety and security segregation.

Mr Rust noted that it is the Management Unit’s policy that hard side detainees generally
do not have access to the general exercise yard, in light of the access to the rear
courtyard. However, Mr Rust further stated that a “hard side” detainee might “from time
to time” be granted access to the general exercise yard if a Corrections Officer in the
Management Unit had conducted a review and decided that it was safe and appropriate to allow the detainee access. The detainee would be required to be kept in handcuffs and supervised by two Corrections Officers during any time spent in the general access period in light of safety and security risks. Mr Rust then however noted that due to there only ever being two staff supervising the Management Unit at any one time, it is not
possible for those staff to provide supervised access for a “hard side” detainee in the
general exercise yard.

97.     Mr Rust noted that when a detainee is placed on separate confinement for a disciplinary breach, the period of time for which they remain in separate confinement can be either three, seven, or 28 days, which is dependent on the severity of the breach. Mr Rust had authority as the Senior Director of Operations to conduct a review after a detainee had completed their period of separate confinement to determine whether the detainee could be returned to the general prison population or whether it was necessary for them to be placed under segregation for a period of time. If a safety and security direction for
segregation was made, a detainee may then be required to remain on the “hard side”
of the Management Unit until the period of segregation was completed.
98.     In respect of the rear courtyard, Mr Rust confirmed that its purpose is for detainees to have access to outdoor air, light, a space to do solitary exercise, and to smoke cigarettes. Mr Rust noted that the door between each cell and rear courtyard is able to be locked and unlocked electronically by staff. Mr Rust stated that detainees are informed that they can request that the door be unlocked for access to the rear courtyard at any time after the morning muster until the evening lock-in. Once the door to the rear courtyard is opened, a detainee can physically close it at any time between morning muster and 6:00PM. Mr Rust further noted that if a detainee chooses to leave the door open during that time, it will remain open and unlocked until the evening lock-
in. Mr Rust confirmed that all detainees on the “hard side”, whether they are under
separate confinement or segregation, have the same level of access to the rear courtyard. Mr Rust recalled being informed by staff in 2018 and 2019 that detainees often asked for the door to the rear courtyard to be unlocked after morning muster and then chose to leave it unlocked all day, so that they could access the rear courtyard whenever they liked until evening lock-in.
99.     Mr Rust noted that Management Unit staff conduct “rounds” of the area every hour.
During rounds, the staff enquire with detainees and offer them access to their statutory entitlements. Such entitlements include making a phone call, requesting to be seen by a case manager or liaison officer, or requesting access to the rear courtyard. Mr Rust stated that detainees also have an intercom buzzer located within their cell, which can be used to communicate with the Management Unit staff.
100.  Mr Rust confirmed that pursuant to the Corrections Management (Management of Segregation and Separate Confinement) Policy 2019 (ACT) (NI2019-381), detainees
receive a copy of the document titled “Segregation/ Separate Confinement Rule and
Regime for the Management Unit” at the commencement of their period of segregation
or separate confinement in the Management Unit, a copy of which was exhibited to Mr
Rust’s affidavit.
101.  In respect of the general exercise yards, Mr Rust stated that in their current state, the
general exercise yards pose a security and/ or safety risk to detainees and AMC staff. Hence, it is the policy of the Management Unit that detainees on the hard side generally do not have access to the general exercise yards. As the doors to the general exercise yards do not contain hatches to handcuff detainees prior to their exit from the yard, Mr Rust noted there is a safety risk to AMC staff in attempting to reapply the handcuffs before transporting a detainee back to their cell. Due to the absence of the hatches, AMC staff would be required to enter the general exercise yard in order to restrain the detainee. If the detainee was non-compliant, it would pose a safety risk to the AMC
staff member’s safety to attempt to apply the handcuffs.
102.  Mr Rust further noted that the mesh used for the walls of the general exercise yards is
thick and widely spaced enough to allow a detainee to climb the mesh wall to the top of the enclosed space. Mr Rust stated that such an action presents a serious risk to safety and security for the following reasons:

(a) A detainee can climb to the top of the 4.33 metres high enclosure, above the sight of the CCTV camera and out of sight of the Management Unit staff;
(b) A detainee can climb to the top of the enclosure to avoid being returned by staff to their cell;
(c) A detainee can climb the mesh in order to jump or throw themselves from a height onto the ground or on other detainees or AMC staff, potentially causing serious injury or death;
(d) A detainee can use the mesh as a ligature point.
103.   Mr Rust also highlighted that the two exercise bars that are contained within the general exercise yard also present possible ligature points for a detainee to attempt self-harm.
Mr Rust noted that in light of the safety and security risks, “hard side” detainees

generally do not get access to the general exercise yards and are instead provided with
access to their rear courtyard for outdoor air, light, and space for exercise.
104.  Mr Rust’s review of the plaintiff’s records set out the various occasions that the plaintiff
was placed in the Management Unit and the reason he was placed under separate confinement/ segregation/ investigative segregation during those periods. It includes that the plaintiff was alleged to have deliberately caused a power outage by starting a fire in his cell, various assaults on other detainees, and disciplinary breaches. Mr Rust
noted that during the plaintiff’s period of segregation from 20 April 2019 to 29 April
2019, he recalled being informed by a team member that after the plaintiff was placed under segregation on 20 April 2019, he said he was going to hang himself. Thereafter, the plaintiff was referred for assessment by Justice Health Services at the Crisis Support Unit within the AMC. The assessment was completed and the plaintiff was returned to the Management Unit by Justice Health Services on 21 April 2019.
105.  Mr Rust’s affidavit also outlines his interactions with the plaintiff. Mr Rust recalled that
the plaintiff said to him on several occasions in or about 2019 that he felt AMC staff
were discriminating against him because of his “political views”. The plaintiff had said
to Mr Rust words to the effect that “AMC staff were discriminating against white
detainees” because they did not recognise or celebrate the culture of white detainees.
106.   Mr Rust also recalled the plaintiff saying to him in or about 2019 words to the effect that
AMC staff were placing him in an “impossible position” by increasing the numbers of
“non-white” detainees in the Sentenced Unit in which he was accommodated. The
plaintiff said words to the effect that he was concerned that if the proportion of Indigenous and non-white detainees got bigger, he would find himself in a position where he was likely to assault them.
107.  Mr Rust recalled that on or about 16 April 2019, he was informed by AMC staff who had contact with the plaintiff at that time that a search had been conducted of his cell in the Sentenced Unit. During that search, AMC staff:

(a) Found what they considered to be a significant amount of extremist
publications on display in the plaintiff’s cell, including images of a swastika
and the Nazi flag;

(b) Observed a drawing of a large gravestone on the wall of the plaintiff’s cell,
alongside the words “RIP” and “drain the swamp”; and

(c) Observed a tally that was marked on the gravestone drawing, which Mr Rust was informed by AMC staff they suspected was a reference to the detainees the plaintiff had been able to have removed from his accommodation unit.
108. Mr Rust attended the plaintiff’s cell shortly after the search was conducted and
observed the images of the swastika and Nazi flag in situ on the cell wall, as well as the drawing of the gravestone and tally. AMC staff advised Mr Rust that photographs
had been taken of the items displayed in the plaintiff’s cell. Mr Rust’s affidavit exhibits
the photographs of the search. The photographs show that the plaintiff had multiple images of swastikas displayed in his cell, a drawing with a swastika and a skull with
cursive handwriting reading “make Australia great again”, a print out of a Canberra
Times article entitled “Prison assault rate remains high as overcrowding concerns
grow” which was surrounded by printed images from the film American History X, hand drawn swastikas and handwriting reading “make SU1 [Sentenced Unit 1] great again”
and “drain the swamp”.
109. Mr Rust recalled being informed by Management Unit staff that the plaintiff was generally compliant with the orders and directions given to him by staff. Mr Rust further
recalled staff informing him that during the plaintiff’s time in the Management Unit in
2019, the plaintiff continued to say words to the effect that he did not want to be placed with Indigenous or culturally diverse detainees in the AMC and expected to have his views catered for.

Evidence of Matthew Kelly

110. Mr Matthew Kelly prepared an affidavit sworn on 23 March 2021, which was relied upon by the defendant. Mr Kelly is an Area Manager of Operations of the AMC and has worked in that role since October 2018. Mr Kelly commenced working at the AMC in April 2015. Mr Kelly previously worked as a custodial manager in the United Kingdom. In his current role, Mr Kelly is responsible for overseeing the operations of the Management Unit and undertaking compliance checks of the Management Unit.
111. Mr Kelly confirmed in his affidavit that the Management Unit is made up of 14 cells,
which are split into a “hard side” and a “soft side”. Mr Kelly stated that the “hard side”
is for detainees under separate confinement, investigative segregation or safety and
security segregation. The “soft side” is for detainees under protective custody or health
segregation.

Mr Kelly stated that the “hard side” and the “soft side” are separated by a central office,

as well as security doors on either side of the office. Mr Kelly noted that there are two
general exercise yards in the Management Unit, one on either side of the building.
113.  Mr Kelly noted that there are only two Corrections Officers rostered on to the Management Unit at any one time. Those Officers are responsible for supervising and
managing the detainees on both the “hard side” and the “soft side”. The Officers are
also required to facilitate detainees’ access to their standard entitlements, which

generally occurs between 8:30AM and 6:00PM. Mr Kelly confirmed that after 6:00PM,
detainees are required to remain in their cells.
114.   Mr Kelly is responsible for conducting regular management and compliance inspections in the Management Unit and stated that he typically completes inspections two to three times per day. The inspections involve the following tasks:

(a) Conducting security checks, including ensuring that all required documents are completed and that daily cell inspections are conducted and recorded. Detainee request forms are completed by staff in the area and then forwarded to the relevant location;
(b) Reviewing the Visitor Log;
(c) Ensuring all detainees are present and that all doors to the cells and the adjoining rear courtyards are locked prior to lock-in at 6:00PM each day.
115.  Mr Kelly outlined the process of what occurs when a detainee first arrives at the Management Unit in his affidavit. Mr Kelly or another Area Manager will meet with the detainee and explain why they have been placed in the unit. A Corrections Officer from the Management Unit then conducts an induction where the detainee is given a copy of the Segregation/ Separate Confinement Rule and Regime for the Management Unit.
A copy of this document was annexed to Mr Kelly’s affidavit.
116.  Mr Kelly noted that detainees housed in the “soft side” of the Management Unit have
access to the same entitlements that all detainees have during their time in custody, as well as other privileges including access to a kitchenette containing a microwave,
toaster, and kettle, as well as access to the general exercise yard on the “soft side” of
the Management Unit.
117.  Mr Kelly stated that detainees contained in the “hard side” remain in their cell for most
of the day and are generally only permitted to leave their cell to access their
entitlements. Mr Kelly confirmed that “hard side” detainees do not have access to the
privileges that those on the “soft side” have. Mr Kelly stated in his affidavit that “hard

side” detainees are not entitled to have access to the general exercise yard on the
“hard side” of the Management Unit.
118.  Mr Kelly noted that when a detainee on the “hard side” is taken out of their cell, they
are required to be handcuffed and accompanied by at least two staff from the Management Unit, depending on the willingness of the detainee to comply with directions and the risk posed by the detainee. Mr Kelly confirmed that some detainees may require additional staff members to control them, which is dependent on the risk assessment of the detainee. The handcuffing procedure is set out in the 2019 Operating Procedure.
119.  Prior to the enactment of the 2019 Operating Procedure, Mr Kelly stated that the
previous practice was that “hard side” detainees were to be handcuffed whenever they
were being moved from their detail, at the discretion of a supervising Corrections Officer. The decision as to handcuff a detainee or not was based on the safety or security risk posed by the detainee. Mr Kelly noted that a risk assessment would be conducted for each detainee.
120.  Mr Kelly stated that the process of handcuffing a “hard side” detainee first requires the
detainee to put their hands through a hatch in their cell door so that a Corrections Officer can apply the handcuffs. The detainee would then retract their handcuffed wrists back into the cell, the cell door would then be opened before the attending Corrections Officers (usually two) would escort the detainee from the cell.
121.  Mr Kelly confirmed that neither of the general exercise yards in the Management Unit have doors with hatches. As a result, Mr Kelly stated it is not possible for staff to
implement the handcuffing policy for “hard side” detainees. Mr Kelly noted that the
absence of hatches in the general exercise yards also means it is not always possible
for staff to safely remove or reapply a detainee’s handcuffs in the general exercise
yards.
122.  Mr Kelly also deposed that the Management Unit does not have sufficient staffing
numbers to undertake escorting nine “hard side” detainees to and from the general
exercise yard for one hour each. Instead, Mr Kelly relied upon the availability of the rear courtyard as a means of providing access to the outdoor air and a space to exercise or smoke cigarettes.
123.   Mr Kelly confirmed that detainees housed within both the “hard side” and the “soft side”
of the Management Unit can request access to their rear courtyard at any time after morning muster and before the 6:00PM lock-in, by pressing the internal intercom inside their cell. Mr Kelly also noted that the two Corrections Officers who work in the
Management Unit also undertake “rounds” of the Management Unit hourly, during

which detainees are given an opportunity to make requests, such as for access to the
rear courtyard and cigarette lighters.
124.  Mr Kelly stated that when a detainee requests access to their rear courtyard, the Management Unit staff electronically unlock the door via remote means. Mr Kelly noted that very occasionally, staff will advise the detainee that there might be a short delay if the staff are already undertaking another task. Mr Kelly stated that once the door to the rear courtyard is remotely unlocked, it remains open until the detainees choose to physically close the door or it will be locked by staff for the 6:00PM lock-in.
125.  Mr Kelly further noted that sometimes a detainee will be moved from the “hard side” to the “soft side” as part of their transition from the Management Unit back to regular AMC

accommodation. Mr Kelly could not recall if the plaintiff was ever moved from the “hard
side” to the “soft side” during his time in the Management Unit.
126.  Mr Kelly recalled first meeting the plaintiff when the plaintiff was placed in Sentenced Unit 1. Mr Kelly recalled the plaintiff initiating conversations, including asking Mr Kelly about his experience working in UK prisons. In 2018 and 2019, Mr Kelly spoke to the
plaintiff during the plaintiff’s time when he was in the Management Unit. Mr Kelly noted
that the plaintiff was always polite and respectful to him and other AMC staff. However, Mr Kelly further noted that he was aware from his discussions with Management Unit
staff and from his review of documentation in 2018 and 2019 that some of the plaintiff’s

391.   Alternatively, the plaintiff also submitted that the defendant’s practice encroached upon
the plaintiff’s human rights pursuant to s 18(1) and (2) of the Human Rights Act. The

plaintiff relied upon its outline of the jurisprudence pertaining to this right as set out in
issue one.
392. Section 18(1) and (2) is put by the plaintiff in the alternate to s 19(1) of the Human Rights Act. Again, having found for the plaintiff under s 19(1), it is not necessary and therefore I do not propose to proceed to consider s 18(1) and (2).
393.  The defendant underlined Refshauge J’s observation in Hakimi v Legal Aid at [52] that “not all questions will have to be answered in all questions”. The defendant submitted
that because it maintained that it did not limit the plaintiff’s rights under ss 19(1),
10(1)(b) or 18(1) or (2) of the Human Rights Act, pursuant to s 28 of the Human Rights Act or otherwise, and accepting that the defendant is a public authority for the purposes of s 40B of the Human Rights Act, the only questions which required determination from Hakimi v Legal Aid were (a), (b) and (c), set out above at [384].
394. It was submitted that insofar as s 18(1) and (2) are concerned with the deprivation of liberty, and not the conditions of detention, the decision not to provide the plaintiff with access to the general exercise yards does not engage these rights.
395. I have already indicated at [232] that s 19(1) of the Human Rights Act is the relevant human right in this context, not ss 10(1)(b) nor 18(1) or (2).
396.   The defendant rejected the proposition that it had acted in a way that was incompatible
with the plaintiff’s human rights or that it had imposed extraneous limits on the plaintiff’s
rights. It was submitted that even if the Court found that access to the rear courtyard was inconsistent with s 45 of the Corrections Management Act, it would not follow that
the defendant had acted incompatibly with the plaintiff’s human rights, particularly in
respect of s 19(1) of the Human Rights Act. In answering the questions above posed by the ACT and Victorian authorities, I find that the defendant has acted incompatibly with s 19(1).
397.  It was submitted that the plaintiff’s ability to access the rear courtyard instead of the
general exercise yard did not cause the plaintiff to experience any hardship or constraint beyond the hardship or constraint caused by the deprivation of his liberty,
having regard to the fact that a “necessary consequence” of his deprivation of liberty
was that his rights were inevitably qualified or attenuated: Castles v Secretary, Department of Justice at [108] and [111]. I do not accept this submission. Access to the rear courtyard instead of the general exercise yard was not a necessary consequence of deprivation of liberty.
398. The defendant noted that while the obligation in s 19(1) of the Human Rights Act requires positive treatment of the plaintiff with humanity, it does not equate to an
obligation to implement “positive measures”. It was submitted that the plaintiff had not
provided evidence of the impact of being in the Management Unit beyond the ordinary incidents of detention, save for the presentation of suicide ideation in April 2019. The
defendant referred to the evidence that the plaintiff’s suicide ideation had been treated
in the Crisis Support unit. The defendant referred to the evidence of Mr Tarlinton, who
stated that in considering the plaintiff’s mental health state in around January 2019, he
formed the view that keeping the plaintiff in segregation did not outweigh the risk of
deterioration of the plaintiff’s mental health, and decided to return the plaintiff to his

regular AMC accommodation. I do not accept the submission that the plaintiff has not
provided evidence.
399.  It was submitted by the defendant that the plaintiff’s criticism of the defendant’s policy
of requiring detainees to ask permission to access the rear courtyard was without substance. The defendant submitted that there is nothing inherently demeaning about asking for the door to the rear courtyard to be opened. It was submitted that the plaintiff ignored the obvious benefit of a practice that permits the detainee more than the minimum entitlement of access for one hour per day. The defendant further submitted that the plaintiff overlooked the evidence of Mr Tarlinton regarding the personal preference of some detainees who at times did not wish to have access to the rear courtyard. Emphasis was placed on the evidence of Mr Tarlinton that access to the rear courtyard was not denied as a matter of punishment. The defendant submitted that the evidence did not demonstrate that the plaintiff was treated other than as a human being, as per s 19(1) of the Human Rights Act. I note as a general observation that it is not necessarily demeaning to ask permission.
400. The defendant further rejected the description of the adoption of cl 4.3 as a “blanket policy”. The defendant maintained that the evidence demonstrated that decisions were
made to grant or deny access to the general exercise yard based on the circumstances of the individual detainee. The defendant noted that the fact that access was not granted did not deny that consideration was given to the question of access. It was
submitted that the plaintiff’s submission did not account for the decisions to grant

access to the rear courtyard for more than one hour per day. I note the evidence that
access was not granted to the general exercise yard.
401. The defendant submitted that cl 4.3 of the 2019 Operating Procedure is an expression
of a detainee’s entitlement to open air and exercise. It was submitted that there is no
reason to suggest that the reference to “fresh air” is a deliberate lowering of the
standard” or a “negligent disregard” of the obligation in s 45 of the Corrections
Management Act or the plaintiff’s human rights. As I have indicated earlier, there is no forensic utility to the “open air”/ “fresh air” debate within the context of this case. The
defendant noted that in addressing the plaintiff’s complaints, Mr Tarlinton indicated his
satisfaction that the plaintiff’s minimum entitlements were met at [51] of his affidavit.
Self-evidently, Mr Tarlinton’s satisfaction does not answer the relevant question.

In respect of the plaintiff’s submission that the defendant “did not properly consider” the
plaintiff’s human rights”, the defendant noted that it was brought to the attention of
corrections officers by way of complaints of inhumane treatment. The defendant
submitted that the plaintiff’s submission was a complaint as to the outcome of that
review or consideration. I do not accept the defendant’s submission that this constitutes
proper consideration. Proper consideration is discussed more broadly below at [409].

ACT Hakimi Question

(d)	Is the relevant act or decision apparently inconsistent with, or does it impose a limitation on, any of the rights protected under pt 3 of the Human Rights Act?

Victorian Question

(b)	The limitation question: if so, has the public authority done or failed to do anything that limits that right?

403. The plaintiff relied upon its submissions addressed to the previous issues in submitting
that the defendant’s decision to deny the plaintiff access to the general exercise yard
and the inflexible policy to only grant access to the rear courtyard were actions of the
defendant that were incompatible and therefore inconsistent with the plaintiff’s human
rights.
404. In my view, the decisions of the defendant were incompatible with s 19(1) of the Human Rights Act. Failing to provide the plaintiff with access to open air and a reasonably spacious space to exercise was a failure by the defendant to protect the plaintiff, as a person deprived of liberty and therefore vulnerable, from conduct which lacks humanity.
405. The defendant’s failure to provide the plaintiff with an hour of “open air” and access to
a suitable place to exercise limits the right to humane treatment in s 19(1) of the Human
Rights Act. The defendant’s failure is a clear limit to s 19(1).

ACT Hakimi Question

(e) Is the limitation proportionate? Section 28 Human Rights Act

Victorian Question

(c)

The proportionality or justification question: if so, is that limit set by laws reasonable and demonstrably justified having regard to the matters set out in s 28 of the Human Rights Act?

406.	At this point of the Hakimi v Legal Aid enquiry, the onus shifts to the defendant to justify the decision to deny the plaintiff access to the general exercise yard and the rear courtyard blanket policy under s 28 of the Human Rights Act: R v Oakes [1986] 1 SCR 103 at 136-138; Re Application under Major Crimes (Investigative Powers) Act 2004 at [147]; Certain Children (No 2) at [175].
407.	As the Corrections Management Act did not authorise the decisions of the defendant,

the limits on the plaintiff’s human rights were not “set by laws”. In relying upon a
construction of the phrase “as far as practicable” that does not read down the entitlement in s 45 of the Corrections Management Act, I find that the defendant’s
decisions were not reasonable limits that could be demonstrably justified in a free and democratic society. I note that the defendant has not sought to justify that the limitation was reasonable pursuant to s 28 of the Human Rights Act. See discussion in relation to s 28 of the Human Rights Act in R v QX (No 2) at [131]-[144] and Andrews v Thomson at [52]-[59].
408. The limit is not “set by law” because cl 4.3 is invalid. The predecessor 2011 Operating
Policy did not and could not authorise a policy of non-compliance with the open air and exercise requirements in s 45 of the Corrections Management Act. The limit is not proportionate because the reasons for non-compliance, that is, the absence of a hatch and that taking detainees to the general exercise yard would require more staff, are practical obstacles that are readily overcome with the application of sufficient resources. The open air and exercise requirements are basic entitlements that countries with lesser economic means are required to resource. The limit is not something that only occurs in an emergency or occasionally.

ACT Hakimi Question

(f) Did the defendant give proper consideration to the protected right?

Victorian Question

(d)	Even if the limitation is proportionate, where the matter involves making a decision, did the decision maker give proper consideration to the protected right?

409. For the purposes of s 40B(1)(b) of the Human Rights Act, failing to give “proper consideration” to a human right may include failing to advert to the right or unreasonably
ignoring the right: Hakimi v Legal Aid at [94]. The breach should have been apparent to the public authority. There is an expectation that public authorities will be alive to the possibility of human rights breaches even in the absence of specific claims or complaints: R v Forsyth [2013] ACTSC 179; 281 FLR 62 at [198].
410. The defendant failed to properly consider s 19 of the Human Rights Act when enacting cl 4.3 and or adopting a policy of only using the rear courtyard and not using the general exercise yard. The evidence of Mr Tarlinton was that the old policy of allowing some detainees access to the general exercise yard was changed due to the property damage caused to the common area and because of the difficulties involved with extracting non-compliant prisoners from that yard. Since 2019, it has been a policy not to use the general exercise yard, access is not granted. This policy has continued to operate notwithstanding complaints received from the plaintiff and a report from Mr Pickles, the Official Visitor. The defendant was on notice of the breaches and unreasonably ignored them.
411. It was further submitted that the replacement of the term “open air” with “fresh air” in cl
4.3 betrays a deliberate lowering of the standard or, at least, a negligent disregard for the standard of entitlements in s 45 of the Corrections Management Act and Mandela
Rule 23(1), as well as the plaintiff’s human rights. I have considered earlier that the
“fresh air”/ “open air” debate is not of forensic consequence in this particular case.
412. On the main issue of proper consideration, it is relevant to refer to the following observation made by Emerton J in Castles v Secretary, Department of Justice at [185]- [186] in this context:
Proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of
justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence
that shows the decision-maker seriously turned his or her mind to the possible
impact of the decision on a person’s human rights and the implications thereof for
the affected person, and that the countervailing interests or obligations were identified.
(emphasis added)

413. The plaintiff submitted that the defendant has not put on any evidence to demonstrate it considered the human rights of detainees when enacting cl 4.3. The Court may infer
in these circumstances that the defendant did not properly consider the plaintiff’s
human rights when making those decisions. The defendant took issue with this on the
basis it was “unfair” (T32.19-25 and T37).
414. I accept the submission that there was no evidence that any consideration was given
to the right in s 19(1) of the Human Rights Act, let alone “proper consideration”. I do not accept the defendant’s submission that the issue only arose in the plaintiff’s closing.
I accept the plaintiff’s submission in this regard.

ACT Hakimi Question

(g)	Does the act or decision made under an Act or instrument give either no practical discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 30 of the Human Rights Act consistently with the protected right?

Victorian Question

(e)	The inevitable infringement question: was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted in a way that is consistent with the protected right?

415. The exceptions in s 40B(2) of the Human Rights Act do not apply. The Corrections Management Act did not authorise the decisions to not allow the plaintiff to access the general exercise yard, as well as the policy to only use the rear courtyard. Clause 4.3
of the 2019 Operating Procedure is directly inconsistent with the plaintiff’s human rights
and cannot be read down. Clause 4.3 is invalid.

Conclusion

416. The plaintiff correctly submitted that in denying the plaintiff access to the open air and an adequate space to exercise, the defendant had acted in a way that was incompatible with the plaintiff’s human rights contrary to s 40B(1)(a) of the Human Rights Act.
Further, the plaintiff correctly submitted that the evidence at the hearing revealed that
the defendant failed to give proper consideration to the plaintiff’s human rights contrary
to s 40B(1)(b) of the Human Rights Act.
417. When the defendant made the decisions to deny the plaintiff access to the general exercise yard, the defendant was required to give proper consideration to the right in s 19(1) of the Human Rights Act and act compatibly with it.
418. I therefore find that the defendant has acted inconsistently with the plaintiff’s human
right pursuant to s 19(1) and has contravened its obligation in s 40B of the Human Rights Act. The plaintiff is therefore entitled to a declaration pursuant to s 40C, as set out below in dealing with the final issue.

If the plaintiff is entitled to relief, what is the appropriate form of relief?

419. At this outset in dealing with this final issue, it is important to acknowledge that the
Human Rights Commissioner’s submissions did not address this issue, particularly s
40C of the Human Rights Act, as it extended beyond the Human Rights
Commissioner’s intervention. A summary of the plaintiff’s submissions now follows.

Plaintiff Submissions

420. The plaintiff confirmed that he sought the declarations as set out in the further amended originating application. Those sought orders are repeated here:

(a) A declaration that access to the rear courtyard of the Management Unit at the AMC does not comply with s 45 of the Corrections Management Act.
(b) A declaration that cl 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with s 45 of the Corrections Management Act.
(c) A declaration pursuant to s 40C of the Human Rights Act that the defendant
has breached the plaintiff’s human rights under ss 10(1)(b), 18(1) and (2)
and 19(1) of the Human Rights Act.

(d) A declaration pursuant to s 32 of the Human Rights Act that cl 4.3 of the
2019 Operating Procedure is incompatible with the plaintiff’s human rights:

i. Not to be treated or punished in a cruel, inhuman or degrading way pursuant to s 10(1)(b) of the Human Rights Act; and/ or
ii. To liberty and security of person and to not be arbitrarily detained pursuant to s 18(1) of the Human Rights Act; and/or
iii. To not be deprived of liberty except on the grounds and in accordance with the procedures established by law pursuant to s 18(2) of the Human Rights Act; and/ or
iv. To be treated with humanity and with respect for the inherent dignity of the human person while deprived of liberty pursuant to s 19(1) of the Human Rights Act.
(e) An order that the plaintiff’s sentence of imprisonment made by the Supreme
Court of the ACT on 25 May 2018 be taken to have commenced on 19 October 2017 pursuant to s 40C(4) of the Human Rights Act and/ or s 63(1) of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act) with the effect that:

i. The plaintiff’s sentence of imprisonment is taken to expire on 18 July
2024; and
ii. The plaintiff’s non-parole period is taken to expire on 17 June 2021.

421. The plaintiff submitted that sought orders (a) to (d), namely the declaratory relief, is the appropriate relief in this matter.
422. In respect of sought order (e), referred to by the plaintiff as a novel order, the plaintiff confirmed this novel order was relevant only to the claim under the Human Rights Act.
The effect of the novel order would be that the plaintiff’s sentence would be backdated
by the 63 days for which his human rights were breached. In oral submissions, the
plaintiff submitted that at the minimum, the plaintiff’s sentence should be backdated by
the 63 hours that he was deprived of access to the open air and exercise. However,
the primary position of the plaintiff remained that the plaintiff’s sentence ought to be
backdated by 63 days.
423. The plaintiff noted that the primary source of power to award this novel relief is s 40C(4) of the Human Rights Act. Section 40C of the Human Rights Act provides:

40C Legal proceedings in relation to public authority actions

(1) This section applies if a person—

(a) claims that a public authority has acted in contravention of section 40B; and
(b) alleges that the person is or would be a victim of the contravention.
(2) The person may—

(a) start a proceeding in the Supreme Court against the public authority; or
(b) rely on the person’s rights under this Act in other legal proceedings.
(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day
(or last day) the act complained of happens, unless the court orders otherwise.
(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it
considers appropriate except damages.
(5) This section does not affect—

(a)

a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b) a right a person has to damages (apart from this section).

Note See also s 18 (7) and s 23.
(6) In this section:

public authority includes an entity for whom a declaration is in force under section 40D.
(emphasis added)
424. The plaintiff submitted that s 40C must be read as a whole. It was submitted that the requirements under s 40C(1) and (2) are made out in this matter, thereby empowering the Court under s 40C(4) to grant relief it considers appropriate except damages.
425. The plaintiff noted that s 40C(4) of the Human Rights Act is different to the equivalent provisions in Victoria and Queensland which explicitly require a plaintiff to have a separate right to relief outside the human rights legislation:

(a) In Victoria, s 39(1) of the Victorian Charter provides that: “If, otherwise than
because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a
ground of unlawfulness arising because of this Charter”.

(b) In Queensland, s 58 of the Human Rights Act 2019 (Qld) is the equivalent of s 40B of the Human Rights Act. Section 59(1) to (2) then provides that a
person may “seek any relief or remedy in relation to an act or decision of a
public entity on the ground that the act or decision was, other than because
of section 58, unlawful” and, as long as the person has another ground for

unlawfulness, they can seek the relief on the ground of unlawfulness under
s 58 even if the other ground is not successful.

426. The plaintiff submitted that s 40C(4) of the Human Rights Act is worded as a free- standing power of the Supreme Court of the ACT to order any relief it considers appropriate except damages. It was noted that Gray J did not decide the point in Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 at [38]-[39].
427. The plaintiff relied on the following principles in submitting that the novel order would be an appropriate form of relief. In Hoare v The Queen (1989) 167 CLR 348 at 354, the High Court observed that:
A basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.

428. The plaintiff further referred to the fact that a person on remand was detained in particularly burdensome or unusually harsh conditions has been held to be a mitigating factor in sentencing decisions: Callanan v Attendee Z at [26]; R v Binse [2014] VSC 253 at [36]-[44].
429. Where a person would likely be spending time in prison in solitary confinement, or in
“23-lockdown conditions”, their sentence may be discounted: Director of Public

Prosecutions (Vic) v Faure [2005] VSCA 91; 12 VR 115 at [28]; Tognolini v The Queen
[2012] VSCA 311 at [22],[29]; Callanan v Attendee Z at [52].

430. In Callanan v Attendee Z at [52] Applegarth J observed:

In some circumstances one day in unusually harsh custody, such as an overcrowded watchhouse, can be roughly equated with a week spent in prison. It would be open to me to conclude that each day of a lengthy period of solitary confinement of the respondent would equate to a week spent in normal prison conditions.

431. The plaintiff submitted that solitary confinement without access to open air and exercise is more burdensome than solitary confinement that is compliant with human rights. The
plaintiff also drew upon examples where part of a person’s sentence is spent in
protective custody. In AB v The Queen [1999] HCA 46; 198 CLR 111 at [105] the High Court observed that it was a well-recognised principle that every year in protective custody is equivalent to a significantly longer loss of liberty under ordinary prison conditions: see also Geddes v The Queen [2012] NSWCCA 94 at [44]. The plaintiff submitted that this reasoning should apply equally to burdensome or harsh conditions that arise after the person has been sentenced, drawing upon an article in the
Melbourne Law Review by Bagaric, Edney and Alexander entitled “(Particularly) burdensome prison time should reduce imprisonment length – and not merely in theory”.
432. The plaintiff acknowledged that it is normally the case that, upon passing a person’s
sentence, the judicial power is exhausted: Baker v The Queen [2004] HCA 45; 223 CLR 513 at [29]. It was noted that judicial power to reconsider the sentence may be enlivened on appeal. However, as s 40C(4) of the Human Rights Act is a free-standing power to order relief, it was submitted that as long as the Court considered such a
remedy “appropriate”, s 40C(4) can enliven the judicial power to backdate the plaintiff’s
sentence, after the sentence has been handed down.

Consideration

433. The defendant submitted that even if the Court found in the plaintiff’s favour as to the defendant acting inconsistently with the plaintiff’s human rights, that there was no
proper basis for the novel order sought by the plaintiff. I agree.
434. Section 63 of the Crimes (Sentencing) Act is not intended as a form of relief. It operates to allow a court at the time of sentencing an offender to take into account any time the offender has spent in custody prior to being sentenced.
435. By seeking an order under s 63(1) of the Crimes (Sentencing) Act, the plaintiff was
asking the Court to “attenuate” his sentence of imprisonment in circumstances where
the Court is not sitting in review or appeal of that sentence. In my view, granting the
“novel” order would not be a proper exercise of judicial power. Therefore, the plaintiff

became eligible for parole from 19 August 2021. The plaintiff is no longer in custody at
the AMC.
436. On 17 June 2021, I made an order that I did not propose to backdate the plaintiff’s

sentence pursuant to s 40C(4) of the Human Rights Act and/ or s 63 of the Crimes
(Sentencing) Act. I made the following declarations:

(a) A declaration that access to the rear courtyard of the Management Unit at the AMC does not comply with s 45 of the Corrections Management Act.
(b) A declaration that cl 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with s 45 of the Corrections Management Act.
437. I reserved my decision in respect of the declarations sought pursuant to ss 40C and 32 of the Human Rights Act. I now make the further following declarations:

(a) A declaration pursuant to s 40C of the Human Rights Act that the defendant has breached the plaintiff’s human rights under s 19(1) of the Human Rights
Act.

(b) A declaration pursuant to s 32 of the Human Rights Act that cl 4.3 of the
2019 Operating Procedure is incompatible with the plaintiff’s human rights

under s 19(1) to be treated with humanity and with respect for the inherent
dignity of the human person while deprived of liberty.

438. I note in my concluding remarks that whether a prisoner is Nelson Mandela or alleged to be a neo-Nazi or anyone else, there are certain basic human rights that must be adhered to in our prisons.

Orders

439. The final orders are therefore as follows:

1. I make a declaration that access to the rear courtyard of the Management Unit at the AMC does not comply with s 45 of the Corrections Management Act.
2. I make a declaration that cl 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with s 45 of the Corrections Management Act.
3. I make a declaration pursuant to s 40C of the Human Rights Act that the
defendant has breached the plaintiff’s human rights under s 19(1) of the
Human Rights Act.
4. I make a declaration pursuant to s 32 of the Human Rights Act that cl 4.3 of
the 2019 Operating Procedure is incompatible with the plaintiff’s human

rights under s 19(1) to be treated with humanity and with respect for the
inherent dignity of the human person while deprived of liberty.
5. The defendant is to pay the plaintiff’s costs.
I certify that the preceding four hundred and thirty-nine [439] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas- Karlsson
Associate: Rhiannon McGlinn
Date: 21 April 2022

(a)	A declaration that access to the rear courtyard of the Management Unit of the AMC does not comply with s 45 of the Corrections Management Act;
(b)	A declaration that cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019 (ACT) (NI2019-384) is invalid as it is inconsistent with s 45 of the Corrections Management Act.

(a)	Is 2330mm (2.33m) wide by 3600mm (3.6) long, with a total area of 8.39m²;
(b)	Is of a similar area and dimension to a cell in the Management Unit;
(c)	Has four block walls, concrete flooring, and is covered overhead by a metal mesh;
(d)	Contains an access door with a built-in window looking outwards.

(b)	Has two concrete brick walls, concrete flooring, and two walls and the celling are made of metal mesh, which is wider than the mesh cover overhead of the rear courtyard;
(c)	Has two sets of metal exercise bars (a chin up bar and a dip bar) which allow detainees to perform body weight exercises.

(a)	Separate confinement from 14 October 2018 to 14 October 2018 in Cell M.11A;
(b)	Separate confinement from 14 October 2018 to 20 October 2018 in Cell M.02A;
(c)	Segregation from 31 December 2018 to 31 December 2018 in Cell M.01A;
(d)	Segregation from 31 December 2018 to 7 January 2019 in Cell M.14A;
(e)	Investigative segregation from 12 March 2019 to 15 March 2019; separate confinement from 15 March 2019 to 19 March 2019; segregation from 19 March 2019 and 9 April 2019 (amounting to a total confinement period of 12 March 2019 to 9 April 2019 in Cell M.02A);
(f)	Investigative segregation from 13 April 2019 to 16 April 2019, and separate confinement from 16 April 2019 to 20 April 2019 (amounting to a total confinement period of 13 April 2019 to 20 April 2019 in Cell M.02A);
(g)	Segregation from 20 April 2019 to 29 April 2019 in Cell M.02A;
(h)	Separate confinement from 9 September 2019 to 9 September 2019 in Cell M.03A;

(a)	When the internal door to the rear courtyard was remotely locked, the plaintiff was required to request access to the rear courtyard in order to remotely unlock the door and thereby access the rear courtyard;
(b)	The internal door to the rear courtyard was required to be remotely locked

(a)	What is the proper construction of s 45 of the Corrections Management Act?
(b)	What is the proper construction of cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019?
(c)	By providing the plaintiff with access to the Rear Courtyard, in accordance with cl 4.3 or otherwise, has the defendant acted consistently with s 45 of the Corrections Management Act?
(d)	On the proper construction of s 45 of the Corrections Management Act and cl 4.3 of the Corrections Management (Separate Confinement) Operating Procedure 2019, is cl 4.3 valid?
(e)	Has the defendant acted consistently with the Human Rights Act?
(f)	If the plaintiff is entitled to relief, what is the appropriate form of relief?

(a)	A declaration that access to the rear courtyard of the Management Unit at the AMC does not comply with s 45 of the Corrections Management Act.
(b)	A declaration that cl 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with s 45 of the Corrections Management Act.
(c)	A declaration pursuant to s 40C of the Human Rights Act that the defendant

(a)	ensuring the secure detention of detainees at correctional centres; and
(b)	ensuring justice, security and good order at correctional centres; and
(c)	ensuring that detainees are treated in a decent, humane and just way; and
(d)	promoting the rehabilitation of offenders and their reintegration into society.

(a)	ensuring that public safety is the paramount consideration in decision-making about the management of detainees; and
(b)	ensuring respect for the humanity of everyone involved in correctional services, including detainees, corrections officers and other people who work at or visit correctional centres; and
(c)	ensuring behaviour by corrections officers that recognises and respects the inherent dignity of detainees as individuals; and
(d)	ensuring that harm suffered by victims, and their need for protection, are considered appropriately in decision-making about the management of detainees.

(a)	to respect and protect the detainee’s human rights;
(b)	to ensure the detainee’s decent, humane and just treatment;
(c)	to preclude torture or cruel, inhuman or degrading treatment;
(d)	to ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;
(e)	to ensure the detainee’s conditions in detention comply with section 12 (Correctional

(1)	Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2)	No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
…

(3)	In this section:
*public authority* includes an entity for whom a declaration is in force under section 40D.

(a)	The safety of anyone else at the AMC, or security and good order at the AMC (safety and security segregation);
(b)	The protection of the detainee (protective custody);
(c)	To reduce the spread of disease (health segregation); or
(d)	For investigation of an alleged disciplinary breach (investigative segregation).

(a)	Separate confinement due to a disciplinary breach under ch 10 of the Corrections Management Act;
(b)	Investigative segregation; and
(c)	Safety and security segregation.

(a)	A detainee can climb to the top of the 4.33 metres high enclosure, above the sight of the CCTV camera and out of sight of the Management Unit staff;
(b)	A detainee can climb to the top of the enclosure to avoid being returned by staff to their cell;
(c)	A detainee can climb the mesh in order to jump or throw themselves from a height onto the ground or on other detainees or AMC staff, potentially causing serious injury or death;
(d)	A detainee can use the mesh as a ligature point.

(a)	Conducting security checks, including ensuring that all required documents are completed and that daily cell inspections are conducted and recorded. Detainee request forms are completed by staff in the area and then forwarded to the relevant location;
(b)	Reviewing the Visitor Log;
(c)	Ensuring all detainees are present and that all doors to the cells and the adjoining rear courtyards are locked prior to lock-in at 6:00PM each day.

[2022] ACTSC 83

5 May 2021