Derek John Bromley v John McGowan and Sue Vardon No. SCGRG 94/989 Judgment No. 4722 Number of Pages 15 Administrative Law Judicial Review of Decision of Gaol Authority
[1994] SASC 4722
•4 August 1994
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J
CWDS
Administrative law - judicial review of decision of gaol authority - application for judicial review on natural justice grounds of decision of General Manager of Yatala prison to transfer the plaintiff from B Division to G Division, a high security part of the gaol, "for the good order and safety of the institution" - consideration, on a reference of preliminary questions of law, of the availability of procedures in the nature of the writs of certiorari and mandamus, or by a declaration, to impeach or review the decision to order the transfer. Correctional Services Act 1982 s24(2) and s36; Prisons Act 1936 and Supreme Court Rules R98. Bromley v Dawes (1983) 34 SASR 73; Fricker v Dawes and Anor (1992) 16 LSJS 464; Bread Manufacturers of New South Wales and Ors v Evans and Ors (1981) 38 ALR 38; Kioa v West (1985) 159 CLR 550; McEvoy v Lobban (1990) 2 Qd R 235; Re Walker (1993) 2 Qd R 345 and Stewart v Lewis (1993) 70 Aust Crim R 88, considered.
HRNG ADELAIDE, 22 July 1994 #DATE 4:8:1994
Counsel for plaintiff: Ms P. Trezise
Solicitors for plaintiff: Aboriginal Legal Rights Movement
Counsel for defendants: Ms S Rogers
Solicitors for defendants: Crown Solicitor (SA)
ORDER
Held that the making of the decision did not attract the rules of natural justice and ought not to be reviewed by the Court except on the ground that it was not a bona fide exercise of the power conferred by 5.24(2) of the Correctional Services Act 1982
JUDGE1 PERRY J The plaintiff is serving a sentence of imprisonment at Yatala Labour Prison. He has been a prisoner since 1985. His anticipated date of release is in the year 2006. On 8 June 1994, he was transferred from that part of the prison known as B Division to G Division. He has remained in G division ever since. G Division is a high security unit of the prison.
2. The plaintiff seeks judicial review of the decision pursuant to which the transfer was effected. Review is sought primarily on the ground that the circumstances surrounding his transfer involved a breach of the rules of natural justice, more particularly such of those rules as relate to procedural fairness.
3. The first defendant, John McGowan, is the acting general manager of the prison. The second defendant, Susan Vardon, is the Chief Executive Officer of the Department of Correctional Services.
4. The relief sought in the summons is as follows:
"1. A declaration that the order to transfer the plaintiff
from B Division at Yatala Labour Prison to G Division at
Yatala Labour Prison on the 8th day of June 1994 was
unlawful.
2. A declaration that all documents relating to the reasons
for the transfer as in paragraph 1 and all documents
relating to the transfer as in paragraph 1 be produced and
made available to the plaintiff.
3. An order for judicial review in the nature of Certiorari
to set aside the order made on the 8th day of June 1994
that the plaintiff be transferred to G Division at Yatala
Labour Prison from B Division at Yatala Labour Prison.
4. An order for judicial review in the nature of mandamus
that the plaintiff be held in B Division at Yatala Labour
Prison until his transfer to a different institution save
and except if there is a proven and serious breach of
prison regulations.
5. An order of judicial review in the nature of mandamus
that all documents relating to the reasons for the transfer
of the plaintiff to G Division at Yatala Labour Prison and
all documents relating to the transfer of the plaintiff to
G Division be made available to the plaintiff.
6. Such and (sic) other orders as the Court deems just and
expedient."
5. On 14 July 1994, a Master, Judge Kelly, declined on jurisdictional grounds to make an order for "stay of the proceedings to which the summons relates" pursuant to Rule 98.05(4).
6. When the application for a stay was renewed before me on 20 July 1994, I refused the application. At the same time I ordered that
"preliminary questions as to whether or not judicial
review in the nature of certiorari or mandamus is
available to impeach an order of the gaol authority,
and if not, whether the Court should, in such
circumstances, entertain an application for a
declaration." be brought on for hearing on 22 July 1994. Having heard counsel on that date, these reasons deal with the conclusions which I have reached as to those preliminary questions.
7. Yatala Labour Prison is a correctional institution within the meaning of the Correctional Services Act 1982 ("the Act") (see s.4(1)). The admission of prisoners to a correctional institution, their management and aspects of their custody and control are dealt with in Part IV of the Act, comprising s.21A to s.39C inclusive.
8. S.24 of the Act is as follows:
"(1) The Chief Executive officer has the custody
of every prisoner, whether the prisoner is within,
or outside, the precincts of the place in which he
or she is being detained, or is to be detained.
(2) Subject to this Act, the Chief Executive
Officer has an absolute discretion-
(a) to place any particular prisoner, or
prisoner of a particular class in such part
of the correctional institution; and
(b) to establish in respect of any
particular prisoner, or prisoner of a
particular class, or in respect of prisoners
placed in any particular part of the
correctional institution, such a regime for
work, recreation, contact with other
prisoners or any other aspect of the
day-to-day life of prisoners,
as from time to time seems expedient to the Chief
Executive Officer."
9. On the day in question, the manager of the prison, one Kevin Corcoran, signed a document headed "Transfer Order, Correctional Services Act 1982, s.24(2)".
10. It appears that in doing so, he acted pursuant to a delegation to him by the Chief Executive Officer of her powers pursuant to the section. The delegation has not been challenged in these proceedings.
11. The text of the order is:
"On 8 June 1994 following an occurrence in B Division I
transferred the above named prisoner to G Division,
pursuant to S24, Correctional Services Act 1982. My
reasons for the transfer are for the good order and safety
of the institution."
12. In his affidavit sworn on 1 July 1994 filed in support of the application (Court file document no 2), the plaintiff states, inter alia:
"3. At approximately 1.30 pm on the 8th day of June 1994 I
was transferred from B Division of Yatala Labour Prison to
G Division of Yatala Labour Prison. I remain in G Division
of Yatala Labour Prison.
4. I was advised that this transfer was taking place
because of rumours which had reached the then General
Manager, Mr Kevin Corcoran, that I was involved in planning
a major incident which would occur in B Division.
5. I denied knowing about plans for any such incident and I
denied being involved in the planning of any such incident.
I denied having heard any rumours about such an event.
6. Despite requests I have received no further information
as to why I have been transferred to G Division other than
the Manager of G Division, Mr Smith, told me that I had
been transferred to G Division as I posed a threat to the
good order and security of the gaol. I requested to see
the General Manager and that request was rejected."
13. He goes on to complain that he has never been provided with any documents in relation to his transfer to G Division, or with any information as to the substance of the allegations against him which led to the transfer. He states that his transfer to G Division has had the effect of segregating him from the prison community, and that he now has "only very limited opportunities for social interaction with other people".
14. In paragraph 10 of the affidavit he states:
"My transfer to G Division has caused me to suffer
deprivation, prejudice and disadvantage including:
(a) a reduction in the allowance payable to me. When I was
in B Division I was receiving approximately $29.00 per week
as I was working in the workshops. I now receive an
allowance of $14.00 per week.
(b) the lack of meaningful work with which to make sense of
the day. The only work that I have in G Division is some
minimal cleaning.
(c) the loss of use of personal property. Whilst I have
some of my personal property in G Division I am not
permitted to have all the personal property which I had in
my cell in B Division.
(d) the lack of access to telephones for making of private
telephone calls. In B Division I had access to the
telephones whenever they were turned on and were not being
used by other prisoners. In G Division I am only allowed
to make one personal call and one legal call per day and I
must give the number which I wish to call to a Correctional
Services Officer who then dials the number and speaks to
the person answering the phone before making the phone
available to me. Phone calls in G Division are of a very
limited duration.
(e) the loss of opportunity of socialising both when
working in the workshop and afterwards in the recreation
area and unit area of B Division.
(f) I was previously a member of the Sansbury Association
of Aboriginal prisoners. I was prevented from attending
these meetings in July 1993 on the basis of unsubstantiated
allegations. I was told that I could recommence attendance
in June of 1994. This opportunity is now lost to me.
(g) this list is not exhaustive of the deprivations
prejudice and disadvantage I have suffered by my transfer
to G Division."
15. The plaintiff goes on to assert in the affidavit that he experienced these alleged "deprivations, prejudices and disadvantages" as a punishment "notwithstanding that I have not been charged with any criminal offence, and nor have I been charged with any breach of prison regulations".
16. He states that the grounds upon which the review is sought are (para 15):
"(a) the decision was unfair in that I have not been given
the opportunity to either know nor answer the facts as
against me which led to the making of this decision.
(b) the decision is unfair in that I have not been given
the opportunity to either consider nor answer the documents
as held by the Department for Correctional Services which
form part of the allegations against me.
(ba) the decision is ultra vires in that it does not adopt
the procedure set out in the Correctional Services Act 1982
for the segregation of prisoners.
(c) the decision takes into account irrelevant
considerations in that it is based upon unsubstantiated
rumours.
(d) the decision is based on no evidence.
(e) the decision is unreasonable."
17. In a further affidavit sworn on 19 July 1994 (Court file document no 12), the plaintiff adds to the grounds of complaint. In that affidavit (para 4) he states that upon his transfer to B Division on 3 March 1994 (he does not indicate where he was held before then), his
"... expectation upon that transfer was that I would remain
in B Division and subject to the conditions, rights and
privileges of B Division until my transfer to another
institution, so long as I abided by the regulations and
rules in force".
18. He goes on to assert that the transfer was effected notwithstanding that he had abided by the "rules and regulations in force", and had not committed any breaches of them. He further complains of the alleged deprivation of the use of his personal property, and he deposes to the belief that his transfer to G Division has interfered with and had a detrimental effect on his attempts to have his security rating lowered.
19. I refer first to one aspect of the plaintiff's application. That is, the argument that the transfer decision was ultra vires in that it was not effected pursuant to the procedures set out in the Act for the segregation of prisoners.
20. There is power in s.36 of the Act for a prisoner to be kept "separately and apart from all other prisoners" if the Chief Executive Officer is of the opinion that it is desirable to do so having regard to the various considerations set out in s.36(2) of the Act. When a direction is made under s.36 it must be served personally on the prisoner within 24 hours (s.36(7)), and a report must be furnished to the Minister by the Chief Executive Officer as to the circumstances in which the direction was given. The Minister has power to review the direction, upon the exercise of which he or she may confirm or revoke the direction (s.36(10)).
21. On the evidence before me, it is clear that the transfer of the plaintiff was not effected under s.36 of the Act. There is no evidence that any of the procedures appropriate to segregation under s.36 have been applied. On the contrary, the so-called "Transfer Order" purports to have been made under s.24(2). Furthermore, on the evidence so far adduced, it appears that the plaintiff has contact with other prisoners in G Division.
22. The second defendant in a letter to the plaintiff's solicitors dated 20 June 1994 (exhibit SV1 to the affidavit of Patricia Trezise dated 5 July 1994, document 4B) says, inter alia, that prisoners in G Division have access to a telephone for private and legal calls, that reasonable requests for property, including television "will be approved". As to the question of segregation, she goes on to state:
"The population of G Division is, of course, much lower
than other accommodation units and the opportunity to
interact with as many people is not available. However, I
am advised that both prisoners can socialise with each
other or other persons of their choice. Furthermore, the
construction of the exercise area is such that prisoners in
adjacent yards can see and communicate with each other."
23. It would, of course, be wrong to use the powers conferred by s.24 of the Act to place a prisoner in a particular part of the correctional institution, and by doing so effect a de facto segregation from all other prisoners of a kind which could only be authorised by s.36 of the Act. But there is no material before me upon which it could properly be concluded that any such misuse of the powers conferred by the Act has occurred.
24. I deal, therefore, with the questions of law on the footing that there has been an exercise of the power of transfer under s.24, and that this has not operated as a de facto segregation of the kind which could only be authorised by the exercise of the powers conferred by s.36.
25. In making that assumption for the purpose of dealing with the questions of law, if the matter should proceed to trial of factual issues, the plaintiff will not be prevented from laying a factual foundation upon which that assumption may be questioned.
26. Dealing with the matter then as a case involving the exercise of the power of transfer conferred on the Chief Executive Officer by s.24 of the Act, the question arises whether the plaintiff is entitled to the sort of information which he pleads he was denied as to the reasons for the transfer, and whether because of the alleged reduction in privileges or other circumstances, the decision to transfer was "unfair" in the sense in which the plaintiff complains, and may be reviewed on natural justice grounds.
27. In Bromley v Dawes (1983) 34 SASR 73, the Full Court considered the question whether the separate confinement of a prisoner (the plaintiff in this case) pursuant to the Prisons Act 1936, which was the predecessor to the Correctional Services Act 1982, was reviewable by this Court. S.41 of the Prisons Act provided:
"In order to prevent the contamination arising from the
association of prisoners, any prisoner may, by order of the
Director, with the concurrence of the Visiting Justice, be
separately confined during the whole or any part of his
imprisonment."
28. The Full Court held that although it would be a misuse of the section for it to be used for the ulterior purpose of punishing a prisoner for an offence upon which he or she had not been charged, the Director might transfer a prisoner pursuant to s.40 for reasons of security; that the decision to do so was an "administrative" decision; and as such, was not reviewable by the Court.
29. In reaching that view, the Full Court had regard to the distinction, long hallowed by authority, between purely administrative decisions and decisions which should properly be characterised as judicial. See per Mitchell ACJ with whom Mohr J agreed at 107:
"If I am correct in holding that the decision of the
appellant to move the respondent into "D" Division was an
administrative and not a judicial process then this Court
cannot review the decision. Such a decision, although it
was on the face of it administrative, would be in fact
judicial if it was made as a penalty for the supposed
commission of an offence and in my opinion the Court is
empowered in each case to determine whether the decision
was judicial or administrative. If it was judicial then
the Court has jurisdiction to review it but if the Court
decides that it was an administrative decision, then that
is the end of the matter."
30. In the course of reaching that conclusion, Her Honour had regard to the question whether it could properly be said that the separate confinement of the prisoner in that case, which was effected by removal into "D" Division, operated to deprive the prisoner of rights or privileges which he previously enjoyed; whether, if that was so, this should lead to the view that the action was disciplinary in nature and, therefore, a judicial decision to which the principles of natural justice apply.
31. There was evidence in that case that the transfer operated to curtail the ability of the plaintiff to have contact visits, and resulted in fewer hours for exercise, fewer belongings, less entertainment and the like.
32. As to this aspect of the matter, Mitchell ACJ said (105):
"There still remains the question whether the Director may
order the removal of a prisoner from one part of a prison
to another, thus placing him in a situation in which he
cannot enjoy privileges or indulgences which he formerly
received, without proof of any offence on the part of the
prisoner, and whether the Court can inquire into such a
removal of the prisoner or whether the removal is merely an
administrative action in respect of which the court has no
jurisdiction ...... Where a prisoner is transferred from
one part of a gaol to another solely for reasons of
security but, as a necessary consequence, is unable to
enjoy some of the privileges or indulgences which he has
hitherto received, I do not think that it can properly be
said that he has forfeited those privileges and
indulgences. On the other hand, if the transfer were made
as an indirect method of punishing a prisoner for an
offence which the Director believed he had committed but
which had not been proved, then such move would of itself
be a punishment not authorized under the Act."
33. In the later case of Fricker v Dawes and Anor (1992) 165 LSJS 464, Mullighan J considered an application by a long-term prisoner at Yatala for judicial review of the decision of the General Manager of the prison to keep him in G Division.
34. In the course of his decision in that case, Mullighan J referred to the discretion under s.24(2) in the following terms (472):
"The Manager in discharge of the discretion under s.24(2),
as delegated to him, had to make a decision, having regard
to all of the circumstances, as to the most suitable place
within the Prison to house the plaintiff. The scope of the
discretion is emphasized by the language employed in the
section. It is an absolute discretion subject only to the
other provisions of the Act. In discharging his
responsibilities under the Act, including those delegated
to him, the Manager has no easy task. He must attempt to
ensure the safety of all prison officers and prisoners as
well as advance the welfare of prisoners in accordance with
the principles of correction and punishment. Parliament
has seen fit to give greater flexibility to the first
defendant and the Manager of a prison by enacting s.24(2).
Since that provision came into operation, it is for the
Manager to make a judgment as to where to place a prisoner
within the prison and that judgment may not, in any view,
be reviewed by the Courts in the ordinary case, and perhaps
only if it has been exercized in such a way or upon such
grounds that it is inconsistent with other provisions of
the Act or has been exercized in bad faith."
35. With respect, I agree with Mullighan J that the language of s.24(2) emphasises the absolute nature of the discretion conferred upon the Chief Executive Officer. The very words of s.24(2) describe the discretion as "absolute". The words "as from time to time seems expedient" are words which emphasise the breadth of the discretion.
36. Bearing those considerations in mind, it seems to me that this case is stronger than Bromley v Dawes (supra) in the sense that the words of the statute now in question point more firmly towards a characterisation of the action of the Chief Executive Officer as an unreviewable administrative decision, as opposed to a reviewable judicial decision, than the words of s.41 of the Prisons Act 1936.
37. But in using the words "administrative" and "judicial", it must be noted that the trend of authority since the decision in Bromley v Dawes is in favour of the view that the question of the availability of judicial review by means of the prerogative writs, or by procedures in the nature of those writs, is not necessarily answered by the process of characterisation of the impugned decision as either administrative or judicial.
38. See Bread Manufacturers of New South Wales and Ors v Evans and Ors (1981) 38 ALR 93 per Mason and Wilson JJ at 117:
"... we are quite sure that whatever may have been the law
in earlier times, the question of the application of the
rules of natural justice is not to be determined merely by
affixing a label to describe the character of the task
which is under consideration..... The application of the
rules is flexible, varying in extent from case to case, and
falls to be determined in the case of a statutory body
exercising statutory powers by reference to the proper
construction of the statute."
39. In Kioa v West (1985) 159 CLR 550, Mason J as he then was, said (582):
".... generally speaking, when an order is to be made which
will deprive a person of some right or interest or the
legitimate expectation of a benefit, he is entitled to know
the case sought to be made against him and to be given an
opportunity of replying to it: Twist v Randwick Municipal
Council (1976) 136 CLR 106 at 109; Salemi (No 2) (1977) 137
CLR 419; Ratu (1977) 137 CLR 476; Heatley v Tasmanian
Racing and Gaming Commission (1977) 137 CLR 487 at 498-499;
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360,
376-377; Annamunthodo v Oilfields Workers' Trade Union
(1961) AC 945. The reference to "right or interest" in
this formulation must be understood as relating to personal
liberty, status, preservation of livelihood and reputation,
as well as to proprietary rights and interests."
40. Later at 585 he said:
"The statutory power must be exercised fairly, i.e. in
accordance with procedures that are fair to the individual
considered in the light of the statutory requirements, the
interests of the individual and the interests and purposes,
whether public or private, which the statute seeks to
advance or protect or permits to be taken into account as
legitimate considerations."
41. So that although characterisation of the decision as "administrative" as opposed to "judicial" may no longer be an essential step to take in determining whether or not the rules of natural justice apply, the question whether they apply remains a question of statutory construction, having regard to the considerations referred to by Mason J.
42. Adopting that approach, and having regard to the relevant provisions in the Act, it seems to me that for the reasons given by Mitchell ACJ in Bromley v Dawes (supra) the transfer of a prisoner from one part of a prison to another in the interests of security, even though it results in a change in the prison regime, including a change in the entitlement to social and other amenities, including remuneration, does not operate so as to deprive the prisoner of what Mitchell ACJ described as "privileges or indulgences" and what Mason J in Kioa v West described as "some right or interest or the legitimate expectation of a benefit" (ibid at 582) so as to attract the rules of natural justice.
43. That observation holds true on the assumption that the exercise of the statutory power is bona fide. It must always be borne in mind that any power conferred by statute may only lawfully be exercised if the person upon whom the power is conferred acts bona fide, for the purposes for which the power was conferred.
44. If, for example, it could be demonstrated that the transfer of the plaintiff to G Division was effected for the ulterior motive of punishing the plaintiff for some offence with which he had not been charged, or in order to effect a de facto segregation from all other prisoners other than in accordance with the procedures laid down in s.36 of the Act, there would be an absence of bona fides justifying review by the Court.
45. Assuming however, for the purposes of addressing the questions of law presently under consideration, that the order signed by the prison Manager as the delegate of the Chief Executive Officer was a bona fide exercise of the discretion conferred by s.24(2), the Court would not intervene to review the decision.
46. Although that conclusion is sufficient to dispose of the questions of law presently under consideration, I will make some other observations as to the nature of the discretion under s.24(2) of the Act.
47. The very nature of the discretion and the circumstances in which it may be called into play compel the conclusion that its exercise would not ordinarily carry with it an obligation of disclosure to the prisoner of the grounds upon which the transfer was effected. Such transfers may often have to be made at short notice, and on the basis of a threat which may turn out to be unsubstantiated. For example, if a threat of a riot comes to the ears of prison authorities, they do not have to wait until a riot actually erupts, before transferring prisoners in an endeavour to maintain good order and safety in the prison.
48. It may well be that prison authorities have little choice but to act upon a rumour until the matter can be further investigated.
49. Furthermore, it is unreal to think that it would necessarily be in the interests of maintaining good order and safety within the prison when a transfer is made on security grounds, that the person transferred should be told of the source of the information which has led to the decision to make the transfer, and of the nature of the information given. There may be many situations in which to do so would simply be to provoke the possibility of further tensions arising, and to cause confidential sources of information to dry up.
50. In reaching the views which I have so far expressed, I have been assisted by three decisions of the Supreme Court of Queensland.
51. In McEvoy v Lobban (1990) 2 Qd R 235, the Full Court of the Supreme Court of Queensland considered a case involving an inmate of Brisbane prison who sought review of a decision that he be confined to his cell for four days, which was accompanied by deprivation of various alleged privileges. In the course of his decision, Macrossan CJ said:
"It is not necessary in cases like the present to deny to
the courts a right to examine the comptroller's decision as
the route by which the decision itself may be permitted to
stand. Certain cases to which we were referred speak in
terms of the prison authority's decision not being
"examinable" or else they use similar language: see Vezitis
v McGeechan (1974) 1 NSWLR 718, 721 and Bromley v Dawes
(1983) 34 SASR 73 esp at 107. I would prefer to say that
having examined the situation the court would find no
occasion to interfere not as a matter of jurisdiction but
because it finds the challenged action to have been
legitimately performed in the exercise of a discretion
lying comfortably within the limits of the power of
management as conferred by the Act and Regulations.
A prison comptroller would be lamentably failing in his
duty if he did not move appropriately to control riots or
to prevent their outbreak or to restrain an unruly prisoner
or violence amongst the inmates of the prison or to prevent
the destruction of prison property. The necessary
controlling actions in such cases are likely to require
quick decision and furthermore might involve a degree of
restriction of movement of the inmates of the institution
or a curtailment of the amenities usually available within
the prison. But if the restrictions are not
inappropriately prolonged and if they are not imposed for
an indirect object of punishing individuals, in short if
they involve a bona fide and reasonable use of the power of
management, the court would not interfere. In particular
the court will not substitute its own discretion for a
necessary and reasonable exercise of discretion on the part
of the prison authorities. Natural justice as understood
in the context of decisions affecting rights or legitimate
expectations (cf Kioa v West (1985) 159 CLR 550 esp 582)
will have no particular application here and will not
inhibit a reasonable and necessary exercise of
administrative power on the part of the comptroller of a
prison."
52. In the same case Thomas J, after referring to the passages in the judgment of Mason J in Kioa v West (supra) which I have already cited, said
(241):
"This broad formulation of "duty to act fairly" may be
taken as an appropriate criterion for testing the presumed
legislative intention in the present matter. The duty to
act fairly is not to be seen as operating in an environment
wherein only the appellant resides. The scene is one where
important duties exist to protect the whole prison
community. The statute does not give any special signposts
on the question whether such a power is one that must be
exercised in accordance with the rules of natural justice.
But in the present context the very nature of the work that
has to be done involves the retention in custody of
numerous persons within a closed environment, some of whom
are not amenable to discipline or reason. There is a need
to protect the weak from the strong, and a need to maintain
an overall peace. It might be thought that where there is
the need to maintain control over a potentially volatile
situation, the making of managerial decisions, even when
they involve value judgments and even when the comfort of
particular inmates may be affected, are not intended to be
exercisable only upon the observance of the principles of
natural justice in favour of those to be affected. Bad
faith, I think, is the point at which the administrative
review of the courts would become necessary.
In short the type of decision that was taken in the present
case was not of the kind which the law requires to be
exercised in accordance with the rules of natural justice.
I do not rule out the possibility of review, but I find it
impossible to envisage any legitimate involvement of the
courts in the review of the bona fide acts performed by
persons involved in the administration of prisons in the
course of steps taken to avoid a breach of the peace.
Steps taken to punish a prisoner are something different
and naturally may attract review. Further, if a prison
officer by cynical pretence abuses his powers to victimise
a prisoner under the guise of ordinary management, the
court will in an appropriate case intervene. I do not
imply that this is the only point at which courts would
exercise prerogative powers, but it affords a clear example
where the court's intervention would be called for."
53. In Re Walker (1993) 2 Qd R 345, Williams J considered an application for review of a decision to transfer the applicant, who was a prisoner, from one institution to another, on the ground of alleged breach of a duty to accord procedural fairness. It was alleged in that case that the effect of the transfer was to prejudice the plaintiff "... in his attempt to obtain regular Leave of Absences, in his attempt to obtain work to release approvals, in that he has lost entitlement to remissions, and in that he has suffered economic loss". (346)
54. In that case, the applicant also complained of the variation in his security classification which, it was said, was effected without his being afforded a hearing.
55. During the course of his decision Williams J said, after referring to passages from the judgments of Macrossan CJ and Thomas J in McEvoy v Lobban (supra) (349):
"Those judgments stress the necessity for legitimate
expectations to be adversely affected before a managerial
decision taken by prison authorities will be reviewed by
the courts. Here, neither decision to transfer affected in
any way the applicant's status. He had no entitlement or
legitimate expectation, for example, to spend the rest of
his incarceration at Maconochie Lodge. It must not be
forgotten that the applicant effectively had his right to
liberty taken away by the sentence imposed upon him; if
liberty is partially granted by prison officials in making
a managerial decision as to where and how the inmate should
be kept in custody, it cannot be asserted that the right to
liberty has been taken away by a subsequent managerial
decision, made in good faith, to the effect that in the
interests of prison discipline and security, the inmate
should be detained elsewhere in the system."
56. In Stewart v Lewis (1993) 70 Aust Crim R 88, the applicant, a prisoner, sought statutory review of a decision of the General Manager of the Sir David Longland Correctional Facility that he be restricted to non-contact visits for four weeks due to his behaviour during a contact visit with a female friend. In that case, McKenzie J held, after referring to a number of authorities
(94):
"The proper characterisation of the withdrawal of contact
visits is a measure taken for the purpose of ensuring
proper standards of behaviour and avoiding the risk of
reaction from other prisoners. The procedures laid down in
the rule were followed in good faith. All of those factors
take a decision of this kind into the area in which a court
ought not to intervene by construing the rule as requiring
the prisoner to be heard before being denied contact
visits. The grounds related to breach of natural justice
are, therefore, not made out."
57. As to those parts of the questions of law which are reserved for consideration at this stage, which invite consideration whether the Court will entertain an application for a declaration if judicial review in the nature of certiorari or mandamus is not available, it does not seem to me to matter whether review is sought in the form of an order in the nature of certiorari or mandamus or by way of declaration.
58. What matters is whether or not the case is of a class which will attract intervention by this Court. In Bromley v Dawes (supra), the plaintiff sought declarations. There was discussion in the case as to whether or not the plaintiff should have proceeded by way of the prerogative writs. Eventually no point was taken as to the form of the proceedings.
59. During the course of her judgment Mitchell ACJ (101) said:
"Certainly proceedings through a writ of certiorari would
have been an appropriate procedure. The respondent has
chosen, however, to combine with his claim for a
declaration and a mandatory injunction a claim for damages.
In the light of the attitude of the Crown I do not propose
to discuss the appropriateness of the present proceedings."
60. Nowadays orders in the nature of the prerogative writs of mandamus, prohibition, certiorari or quo warranto may be sought by way of judicial review by a summons issued in accordance with Rule 98. Rule 98.01(3) provides:
"Declarations or injunctions may be sought in a summons for
judicial review, and on such a summons the Court may grant
the declaration or injunction claimed in lieu of, or in
addition to, any order in the nature of, or having the
effect of, a prerogative writ at common law if it considers
that having regard to:
(a) the nature of the matter in respect of which relief may
be granted by way of an order having the effect of an order
for mandamus, prohibition, certiorari or quo warranto;
(b) the nature of the persons and bodies against whom
relief may be granted by way of such an order; and
(c) all the circumstances of the case;
it would be just and convenient for the declaration or
injunction to be granted on a summons for judicial review."
61. It seems to me that if the plaintiff does not have a case for a review of the decision which could properly be pursued by an order in the nature of one of the prerogative writs, he cannot be better off by proceeding by way of a declaration. Either the case is one in which it is proper for the Court to intervene or not. The form of the proceedings cannot govern the outcome.
62. Before parting with the matter, I should comment on paragraph 2 of the summons, which seeks a declaration that "... all documents relating to the reasons for the transfer ... and all documents relating to the transfer ... be produced and made available to the plaintiff".
63. Once the view is reached that the decision to transfer the plaintiff did not attract the application of the rules of natural justice, not only are principles such as those which find expression in rules such as the audi alteram partem rule inapplicable, but there is no room for imparting an obligation of disclosure, either of documents or information.
64. However, if civil proceedings are instituted, such as those now in train, the rules as to discovery of documents apply just as they do to any other civil proceeding. It is not a matter of making a "declaration" that documents be produced. Perhaps what is really being sought is a declaration that the defendants were "liable" to produce documents. However, for the reasons I have given, there was no liability before the action was brought.
65. Be that as it may, there is such a liability now. The mechanism for discovery in judicial review applications is normally by way of orders for directions made pursuant to R 98.05(7), bearing in mind that interlocutory applications may, pursuant to R 98.10(1), be heard by a Master as well as by a Judge. Discovery will, of course, be restricted by the rules relating to privilege and public interest immunity.
66. As though in anticipation of the view which I have expressed as to this aspect of the matter, before publication of these reasons, the plaintiff has issued a notice for further directions, including an order for discovery by the defendants (Court file document no 16).
67. For the reasons which I have given, I am of the view that the preliminary questions of law should be answered as follows:
1. The order in question, being the order made on 8 June
1994 for the transfer of the plaintiff from B Division to
G Division of the Yatala Labour Prison ought not be
reviewed by this Court except on the ground that it was not
made bona fide in accordance with the power conferred by
s.24(2) of the Correctional Services Act 1982.
2. The conclusion expressed in 1 applies irrespective of
the nature of the proceedings, and in particular
irrespective of whether or not the proceedings seek an
order in the nature of certiorari or mandamus, or seek a
declaration.
68. It follows that the case should not be allowed to go further unless, having regard to these reasons, the plaintiff wishes to be given the opportunity to make out a case that the exercise of the statutory power in question was effected other than in good faith.
69. The plaintiff has foreshadowed an amendment to the proceedings to seek, inter alia, a declaration that "... the consideration of the Prisoner Assessment Committee of the security status of the plaintiff on the 8th day of June 1994 was unlawful", and related relief (see Court file document no 14).
70. Since dictating these reasons, I have been advised by the solicitor for the defendants that during the course of last week the plaintiff was transferred to Port Augusta gaol. Having regard to that development, I will not pronounce any order consequent upon these reasons before hearing counsel as to the future of the application, and if necessary, as to the proposed amendment relating to the assessment of the plaintiff's security status.
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