Dudley v Secretary to the Department of Justice and Community Safety
[2021] VSC 567
•15 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03895
| KEITH DUDLEY | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Defendant |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 July 2021 |
DATE OF JUDGMENT: | 15 September 2021 |
CASE MAY BE CITED AS: | Dudley v Secretary to the Department of Justice and Community Safety |
MEDIUM NEUTRAL CITATION: | [2021] VSC 567 (First revision: 16 September 2021) |
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ADMINISTRATIVE LAW – Judicial review – Statutory interpretation – Application for review of decision of Deputy Commissioner of Corrections acting as delegate of the Secretary to the Department of Justice and Community Safety not to grant ‘emergency management days’ to parolee – Whether Deputy Commissioner imposed a threshold of significance on the level or amount of ‘disruption’ or ‘deprivation’ suffered while in prison required to be found before the statutory power could arise – Nature of the power – Whether discretionary – Whether decision-maker must make positive grant of emergency management days on satisfaction that pre-conditions for exercise of the power are met – Whether exercise effectively immune from judicial review – Application dismissed – Corrections Act 1986 s 58E – Corrections Regulations 2019 regs 100, 109.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr MD Wyles QC | |
| Mr NC Dour | ||
| For the Defendant | Mr L Brown | Victorian Government Solicitor’s Office |
| Mr C Fitzgerald |
HIS HONOUR:
Introduction: Emergency management days
This case raises issues concerning the proper interpretation and application of s 58E of the Corrections Act 1986, which provides for the reduction of sentences of imprisonment and non-parole periods by the granting to Victorian prisoners of ‘emergency management days’. The case is brought as an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, and the issues raised include questions about the amenability to judicial review of action or inaction under s 58E on the part of the relevant authorities. Some of the issues raised may have significance beyond this case, particularly for other applications for judicial review brought by prisoners in relation to the seeking of ‘emergency management days’. There are a number of such applications pending in the Court, presumably as a result of measures taken in Victorian prisons since March 2020 in response to the COVID-19 pandemic and the related declaration of a state of emergency.
Section 58E of the Corrections Act 1986 is set out in full below. For the moment it is sufficient to note the following. The section empowers the Secretary to the Department of Justice and Community Safety (the present defendant) to reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if any) applicable to the person. The power arises in certain kinds of circumstances stated in s 58E. Relevantly to this case, the power may be exercised ‘on account of good behaviour while suffering disruption or deprivation… during an … emergency existing in the prison… in which the sentence is being served’. The power is to be exercised ‘in accordance with the regulations’.[1] Under regulation 100, in the case of an ‘emergency’, the Secretary may reduce the length of the sentence or the length of the non-parole period by up to four days for each day or part of a day on which the emergency exists in the prison. The process is referred to in regulation 109 as the granting of ‘emergency management days’, and both s 58E and Division 3A of Part 8 of the Corrections Act 1986, in which s 58E appears, are headed ‘Emergency management days’, although that expression does not actually appear within the text of s 58E. The role of the Secretary under s 58E and the related regulations falls within the broad range of functions, powers, duties and responsibilities that the Secretary may delegate, under s 8(1) of the Corrections Act 1986, to the Commissioner or to any other employee of the Department or to any ‘officer’ within the meaning of Part 5 (Parole) or Part 9 (Community Corrections) of the Act.
[1]The relevant regulations at present are regs 100 and 109 of the Corrections Regulations 2019. They, too, are set out in full below.
The plaintiff, Mr Keith Dudley, commenced this proceeding in October 2020 as a self-represented litigant and continued to represent himself until shortly after an initial hearing before me on 27 April 2021. On that day, with Mr Dudley’s concurrence, the Court directed that a request be issued for pro bono assistance for Mr Dudley under the direct referral scheme between the Victorian Bar and the Supreme Court of Victoria. The Court is grateful to senior and junior counsel who responded to the Court’s request and prepared revised written submissions and a further amended originating motion on behalf of Mr Dudley and assisted with the preparation of a refined court book[2] and appeared for Mr Dudley at the final, oral hearing on 15 July 2021. The involvement of counsel was accompanied by an appropriate resolution of some issues and a proper focus on the remaining issues.
[2]New Court Book (‘NCB’) dated 13 July 2021.
The events relating to Mr Dudley’s requests for emergency management days
The facts relevant to the remaining issues are not in dispute. They are set out in the affidavits filed. They may be summarised as follows.
A state of emergency in relation to the COVID-19 pandemic was declared in Victoria on 16 March 2020. Between April and June 2020 Mr Dudley, while in custody serving a sentence of imprisonment that had begun in 2017, wrote three letters, dated 19 April, 21 April and 9 June 2020 respectively, to the defendant requesting emergency management days in respect of a series of asserted deprivations or disruptions related to COVID-19 measures. Having received no response, Mr Dudley wrote two follow-up letters, dated 16 and 27 July 2020 respectively. Unfortunately, due to a problem as between Corrections Victoria and Australia Post, and unbeknown to Mr Dudley at the time, none of the five letters was received by the defendant or by her Department. They only came to attention in or about October 2020 after this proceeding was commenced by Mr Dudley as an application for an order to compel a decision on his requests. Copies of the letters were exhibited to Mr Dudley’s affidavit in support. The Court papers were served on the Victorian Government Solicitor’s Office, which referred Mr Dudley’s correspondence to Corrections Victoria for a response. In the meantime, a Deputy Commissioner within Corrections, Ms Melissa Westin, acting or purporting to act as a delegate of the defendant, had actually granted Mr Dudley five emergency management days for a COVID-19 related occurrence in May 2020 and 30 more emergency management days for another such occurrence in July/August 2020, making a total of 35.[3] This had been done pursuant to certain standing arrangements within Corrections Victoria for the ‘automatic’ consideration of emergency management days for prisoners suffering deprivation or disruption relating to the COVID-19 emergency,[4] and in ignorance of Mr Dudley’s letters of request. When those letters of request did come to attention, they were referred to Ms Westin. Again, Ms Westin was acting or purporting to act as a delegate of the defendant. By this time Mr Dudley had well and truly reached his parole eligibility date and in fact he was released on parole on 11 November 2020. Nevertheless, the matter was not hypothetical. Mr Dudley’s head sentence had not expired and, unless further emergency management days were granted, it would not do so until 17 September 2021. Parole itself always involves certain restrictions, as well as the risk that parole might be revoked and that the parolee might be returned to prison.[5] Hence a grant of further emergency management days to Mr Dudley in or about November 2020 might have had potential benefit for him. However, on 26 November 2020,[6] Ms Westin decided that no further emergency management days should be granted to Mr Dudley. Her decision was conveyed to Mr Dudley by a letter dated 9 December 2020. The letter occupied three and one third typed pages and contained a quite detailed set of reasons for the decision.
[3]Additionally, earlier still, in about December 2017, Mr Dudley had been granted 26 emergency management days in relation to a fire a Port Phillip Prison.
[4]See further below.
[5]See ss 76 and 77 of the Corrections Act 1986.
[6]See paragraph 20 of the affidavit of Melissa Sueann Westin affirmed 2 February 2021: NCB 105.
The giving of Ms Westin’s actual decision rendered moot the claims for relief that had originally been made by the plaintiff in this proceeding. However, in due course, the plaintiff was, in effect, given leave to amend the proceeding to challenge that decision. From the time (17 June 2021) when the plaintiff’s revised written submissions (prepared by counsel) were filed, up until the day of the final hearing, the plaintiff challenged the decision on two broad bases – first, that Ms Westin did not hold a valid, relevant and operative delegation of power; and, second, that Ms Westin’s process of reasoning, as disclosed by her letter, was not in accordance with the requirements of s 58E. At the final hearing, the plaintiff abandoned[7] the first basis of challenge, noting that it was Ms Westin herself, acting in the same capacity, who had granted (or purported to grant) to Mr Dudley the 35 emergency management days mentioned above. That left the contention that Ms Westin’s reasoning involved a departure from the provisions of s 58E. To facilitate consideration in due course of that contention, it is desirable now to set out the whole of Ms Westin’s letter, notwithstanding its length.
[7]This was done not only by counsel on behalf of Mr Dudley but also, at counsel’s request, by Mr Dudley himself orally in Court: see transcript of hearing before Cavanough J on 15 July 2021 (‘transcript’) at 19–20, 23, and esp 37–38.
Omitting formal parts, the letter read as follows:
Dear Mr Dudley,
Emergency Management Days
Thank you for your correspondence of 19 and 21 April 2020 and 9 June 2020, addressed to the Secretary, Department of Justice and Community Safety, in which you have raised a range of prison operational issues and requested emergency management days (EMDs) in relation to the COVID-19 emergency. Please note that a response was not provided to you earlier as your correspondence does not appear to have been received by the Department. Following commencement of your legal proceedings, the Victorian Government Solicitor’s Office referred your correspondence to Corrections Victoria for response.
In accordance with section 58E of the Corrections Act 1986 and regulation 100 of the Corrections Regulations 2019, please note that the Secretary, Department of Justice and Community Safety has the authority to consider and make determinations with regard to EMDs. This authority has also been delegated to those who hold the roles of Commissioner and Deputy Commissioner, Custodial Operations within Corrections Victoria.
Please also be advised that the management of EMDs during COVID-19 has been carefully considered. Corrections Victoria has established a process to automatically consider EMDs for prisoners who are suffering deprivation or disruption relating to the COVID-19 emergency. Deprivation or disruption includes restrictive regimes because of COVID-19 or having out of cell time significantly restricted due to being placed in quarantine. I might also add that any disruption to normal prison routine caused by prison incidents will not result in the automatic consideration of EMDs.
While up to four days is the maximum number of EMDs that can be granted under the Corrections Act 1986 for every day or part day of disruption or deprivation, during the COVID-19 emergency, the Commissioner’s policy is that the number of EMDs granted will be close to or equivalent to the number of days of disruption or deprivation actually experienced.
Should prisoners be excluded from the automatic consideration process outlined above, or if prisoners are of the view they are eligible for additional EMDs, they have the option of submitting an Application for Emergency Management Days form. Completing this form is important as applications are forwarded to the General Manager for a recommendation prior to being forwarded to me for my consideration and decision.
However, after searching our records we could not find any applications submitted by you, and given you have been released on parole, I have treated your correspondence as your application for EMDs.
Prior to your release on parole on 11 November 2020, you had been granted 35 EMDs relating to the COVID-19 emergency via the automatic consideration process. This includes EMDs for a lockdown occurring at Hopkins Correctional Centre on 8 May to 12 May 2020 and being accommodated in a restrictive regime while residing at the Metropolitan Remand Centre.
I have reviewed the range of issues you have identified as causing you disruption and deprivation in prison, and while I note your circumstances, your application for additional EMDs is not approved. The overall disruption or deprivation that you have experienced in prison, particularly at Hopkins and Langi Kal Kal, has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of additional EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.
I have also provided a response to the issues you have raised:
·In-person visits have been suspended to reduce the risk of person-to-person transmission of COVID-19. I do appreciate that the suspension of visits has been very difficult for prisoners and their loved ones and Corrections Victoria recognises how important it is for prisoners to maintain connection with family and friends. While I understand that it is not the same as seeing your family in person, alternative options have been implemented including video visits, increased access to telephone calls and the introduction of the prisoner email service. Contact visits will be returned from 11 December 2020.
·While restrictions on persons entering the prison have been in place, I am informed by staff at Hopkins that since July 2020, you have had regular contact with your personal advisors, Mr Vasilios Kyriazis and Mr Nigel Waddington, via phone and video visits.
·Chaplaincy services are currently accessible remotely via a booking service and can be arranged with staff should prisoners wish to undertake a session. The HOPE Prison Fellowship Program at Hopkins will resume shortly.
·Education services were temporarily transferred to remote learning arrangements where possible. Federation University are now delivering onsite education services, and while these are required to comply with social distancing requirements, prisoners have the option to undertake a variety of courses such as education qualifications, traffic management, warehousing, bakery and kitchen.
·There has been a restriction placed on all incoming property to reduce the risk of transmission of COVID-19, and prisoners are able to make a request to the General Manager should there be exceptional circumstances. Likewise, magazines at Hopkins have also been cancelled, unless there is an exceptional circumstance.
·I have been advised by staff at Hopkins that while there are markings on the pavement to provide prisoners with guidance on social distancing outside the canteen, there are not mandatory lines that would result in prisoners being deprived of shelter in inclement weather.
·The Office of the Victorian Ombudsman temporarily suspended its phone services for approximately two months, and from June 2020, it was contactable from Monday to Friday from 10am to 4.00pm. Prisoners were still able to write to the Victorian Ombudsman during the time when its phone services were suspended.
·It is acknowledged that COVID-19 has been a stressful time for prisoners, staff and the general community. The health and safety of staff and prisoners is the upmost priority for Corrections Victoria, and we implemented a range of policies and procedures to reduce the risk of COVID-19 transmission in prisons, informed by infection control experts and advice from the Department of Health and Human Services. Should prisoners be particularly concerned about their individual health needs and risks of COVID-19, they have had the opportunity to speak with healthcare staff regarding any concerns. Furthermore, prisoners have continued to have access to a range of support and mental health services during the COVID-19 emergency.
·Hand sanitiser products have been made available to prisoners and meets specific requirements around the minimum alcohol concentration, including a range of brand options, such as Jasol.
·The physical distancing of staff is occuring wherever possible in prisons, and operational procedures have been adapted to meet requirements, including signage across all facilities and the maximum occupancy of spaces clearly marked and monitored. There are areas where it is not practical for physical distancing to be achieved, however, where possible, time in these areas is to be limited.
·The Parole Suitability Assessment (PSA) process has continued to have prisoners assessed for parole with regard to their earliest eligibility for release, as has happened with you. Where there are disruptions to the treatment that can be provided, Community Correctional Services (CCS) are providing an abridged version or one-on-one treatment.
·Prisoners have been provided with re-usable cloth face masks or have the option to wear disposable surgical masks. Anyone entering a prison or facility, including staff, service providers, professional visitors and contractors are required to wear a face mask at all times.
·Prisoners have the option to participate in reintegration programs to prepare them for release back into the community, such as Atlas, Thrive and Facing Forward, which have been occuring in line with requirements for reduced numbers of group participants.
·Prisoners at Hopkins experienced lockdowns due to the COVID-19 emergency from 8 May to 12 May 2020, which restricted access to facilities such as the library. However, prisoners have been granted EMDs for deprivation and disruption that they experienced, and I note that you have already received 5 EMDs for this period.
·There were disruptions to the services provided by the Freedom of Information (FOI) Unit when transitioning to remote working arrangements. However, any disruptions or delays were minor, and prisoners still had the option to write to the FOI Unit with their concerns.
·I have been advised by staff at Langi Kal Kal that while there was not a General Manager’s Disciplinary Hearing in relation to claims of incitement against you at Langi Kal Kal, there was a discussion on 22 June 2020 in which you were invited to explain your side of the situation. Staff informed you that the one-page document you had been circulating at the prison containing incorrect information relating to EMDs was considered as inciting unrest at the location. [As] such, it was deemed that your placement at Langi Kal Kal was no longer viable.
I hope this information addresses your concerns.
Yours sincerely
[signature]
Melissa Westin
Deputy Commissioner, Custodial Operations.
In the third and fifth paragraphs of Ms Westin’s letter there is reference to the abovementioned ‘automatic’ process for consideration of emergency management days for COVID-19 related reasons. There had been policies and procedures in place within Corrections Victoria for the consideration of emergency management days even prior to the time of the COVID-19 pandemic. The overall situation was explained by Ms Westin in an affidavit of 2 February 2021 as follows:[8]
[8]Affidavit of Melissa Sueann Westin affirmed 2 February 2021, paragraphs 4 to 7: NCB 101–102.
4.Under section 58E of the Corrections Act 1958 the Secretary or her delegate is empowered to grant emergency management days (EMDs) in certain circumstances. Corrections Victoria does not require that a prisoner apply for EMDs – in many cases they are granted to classes of prisoners without any application having been made, on the basis of the delegate’s view that the circumstances required by s 58E exist and the discretion under that section should be exercised in favour of granting EMDs.
5.To set minimum standards and ensure consistency across prisons, the Commissioner of Corrections Victoria issues Commissioner’s Requirements. The Commissioner has issued Commissioner’s Requirements with respect to EMDs, which provide guidance to delegates when making decisions in relation to the grant of EMDs. This policy has been adopted by Corrections Victoria in order to ensure the power in s 58E is being exercised lawfully by the Secretary’s delegates. This policy, as well as other Corrections Victoria policies, is available to prisoners in the prison library, via the prison intranet, at unit consoles and by request in management and High Security Units.
[Here the deponent exhibited a copy of Commissioner’s Requirements 2.3.2 Emergency Management Days dated November 2019].[9]
6.Although EMDs are often granted without an application having been made by any prisoner, provision is made for prisoners to apply for EMDs. Corrections Victoria has established a process for prisoners to make these applications, which is set out in an Information sheet that is available to prisoners. The Information sheet is an annexure to [the abovementioned Commissioner’s Requirements 2.3.2 Emergency Management Days dated November 2019]. The fact sheet informs prisoners that if they want to apply for EMDs they should ask their case manager for an application form. This form is an annexure to [the abovementioned Commissioner’s Requirements 2.3.2 Emergency Management Days dated November 2019]. Before the COVID-19 specific fact sheet (discussed below) was developed in 2020 this fact sheet was made available to prisoners using local communication processes including via prisoner notice boards.
7.A state of emergency was declared in Victoria on 16 March 2020, in response to the COVID-19 pandemic. As a result, there have been various changes to the way Victorian prisons operate in order to limit the risk of COVID-19 entering prisons and spreading. In certain circumstances, EMDs have been granted as a result of the impacts of the changes made as a result of the state of emergency. A fact sheet was developed for prisoners specifically in relation to how the EMDs policy is being applied during the state of emergency. This fact sheet was (and continues to be) widely distributed to prisoners using local communication processes including via prison notice boards, during the induction of new prisoners and via prisoner peer representatives, and upon request. Copies of the fact sheet are available in communal areas and in the packs given to newly received prisoners.
[The deponent then exhibited COVID-19 Emergency Management Days: Fact Sheet for Prisoners current as at 13 August 2020].[10]
[9]NCB 123 to 126.
[10]NCB 138 to 139.
Returning to Ms Westin’s letter of 9 December 2020, I believe it to be common ground that, notwithstanding the contents of the last dot point in that letter, Ms Westin did not lack satisfaction that Mr Dudley had been of ‘good behaviour’ at all relevant times for the purposes of s 58E of the Corrections Act 1986.
Identifying the issues
As already mentioned, the relevant facts are not in contest and the delegation point has been dropped.
It is convenient now to refer to certain other legal issues, previously raised in this proceeding, that have been resolved or refined, and in doing so to identify, in general terms, the legal issues that remain.
In my authenticated order of 27 April 2021, under the heading ‘Other Matters’, by way of explanation for the making of the substantive orders, there were references to various issues then extant, including, in paragraph I of ‘Other Matters’, the following:
IThis proceeding also appears to raise at least three issues of potential public importance as to the proper construction of s 58E of the Act, namely:
(a)whether s 58E creates a duty, enforceable by an order in the nature of mandamus, to make or consider making a decision under s 58E, either within a reasonable time or at all;
(b)whether s 58E prescribes any jurisdictional fact or facts or whether, rather, all matters arising under s 58E (including whether or to what extent there has existed any ‘industrial dispute’ or ‘emergency’ or ‘disruption’ or ‘deprivation’ or ‘good behaviour’, as well as the matter of the exercise of the discretion conferred by the section) fall to be determined by the Secretary or the Secretary’s delegate (as distinct from any court) subject only to the ordinary principles of judicial review;
(c)whether there are any, and if so what, limits on the scope of the discretion for which s 58E provides.
Because Ms Westin’s actual decision on Mr Dudley’s requests has overtaken his original complaint to this Court about the absence of a response to his requests, the legal issue referred to in sub-paragraph (a) of paragraph I of ‘Other Matters’ no longer arises in quite the same way. However, as will be further seen, the defendant Secretary has contended in this case, and still contends, that, as a matter of law, regardless of the circumstances, s 58E will not create any duty to make or consider making a decision under s 58E within a reasonable time or at all; that, therefore, mandamus is not available even after a legally erroneous actual decision; and that this will always serve as a complete answer (in addition to any other answer) to an application for judicial review of the kind made in the present case. In response, the plaintiff says that, at least in some circumstances, s 58E will create or impose an enforceable duty to consider, and to make a decision on, a request made by a person under s 58E (and to make the decision within a reasonable time). Indeed, according to the plaintiff, if, on the making of a request for emergency management days under s 58E the repository of the power is satisfied that the pre-conditions for enlivening the power to grant such days are met, the repository is legally obliged to make a positive grant to the requestor; that, if the repository makes a decision not to do so, the decision is liable to be quashed by an order in the nature of certiorari; and that the Court has power, by means of an order in the nature of mandamus, to require that the matter be reconsidered according to law by the Secretary or her delegate.[11] On the other hand, the plaintiff no longer contends, if he ever did, that this Court might ordinarily order the Secretary or her delegate to grant some specific number of emergency management days to anyone.[12]
[11]See paragraphs 27–31 of the plaintiff’s written submissions dated 17 June 2021: transcript passim, but especially at 10–13.
[12]See the prayer for relief in the plaintiff’s further amended originating motion dated 25 June 2021 (NCB 94–95); transcript 28 (lines 12–15); cf paragraphs 27–31 of the plaintiff’s written submissions dated 17 June 2021.
As to the legal issue referred to in sub-paragraph (b) of paragraph I of ‘Other Matters’, there might well be thought to be included in the plaintiff’s written submissions dated 17 June 2021, particularly at paragraphs 33 to 35, a contention that all, or at least some, of the preconditions in s 58E for the enlivening of the Secretary’s power to grant emergency management days are matters of objective, jurisdictional fact, upon which a court would receive evidence and come to its own conclusions. However, senior counsel for the plaintiff confirmed at the final hearing that, at least in the end, no such contention was being advanced on behalf of the plaintiff, and he acknowledged that it would be inconsistent with the terms of s 58E for any such contention to be accepted.[13] To that extent, the parties are now in agreement. Consistently with this, the plaintiff did not run an evidentiary case designed to establish objectively, and independently of Ms Westin’s conclusions, that the pre-conditions in s 58E were satisfied, whether to any particular extent or at all.
[13]Transcript 31–32.
In my view, the parties’ ultimate agreement in relation to the jurisdictional fact point accords with the law. The pre-conditions in s 58E involve matters of evaluation and degree and matters of comparison with normal or other situations or conduct within prisons – particularly as to ‘good behaviour’, as to ‘suffering disruption or deprivation’, as to ‘during… an emergency’ and, all the more so, as to ‘in other circumstances of an unforeseen and special nature’ – which Parliament surely saw as best determined, on their merits, by the correctional authorities rather than by any court.[14] It is highly unlikely that Parliament intended the very inconvenient result that there should be a separation between the repository of the ultimate power to assess compliance with the pre-conditions for the enlivening of the discretionary power to grant emergency management days under s 58E, on the one hand, and the repository of that self-same discretionary power itself, on the other hand.[15] That is all the more evident because of the interrelatedness (properly acknowledged at the final hearing by senior counsel for the plaintiff)[16] that will often exist between matters relevant to the statutory pre-conditions and matters relevant to the exercise of the discretion itself. This would remain my view even if it were the case – as the plaintiff has submitted it is (see above and below) – that, on the proper construction of s 58E and the regulations, a positive exercise of the discretionary power becomes obligatory upon satisfaction of the pre-conditions.
[14]See Anderson v Pavic [2005] VSCA 244 at [29] (Warren CJ); [17]–[18], [25] (Maxwell P); [32]–[33] (Nettle JA); cf Kheir v Secretary to the Department of Justice and Regulation and Anor [2018] VSC 222 [22] (T Forrest J); Plaintiff M 70 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 189 [57]; AOU 21 v Minister for Home Affairs [2021] FCAFC 60 [118]–[120].
[15]See Chu v Telstra Corporation Ltd (2005) 147 FCR 505, 508–509 [11]–[12] discussed and applied in my judgment in McKechnie v VCAT (2020) 62 VR 54, 93–95 [98]–[100].
[16]Transcript 30–31.
As to the issue referred to in sub-paragraph (c) of paragraph I of ‘Other Matters’, the parties’ respective contentions, so far as relevant, are as is indicated above in relation to the issue referred to in sub-paragraph (a) of paragraph I of ‘Other Matters’.
The parties’ positions at the final hearing generally
As already mentioned, at the final hearing the plaintiff’s case came down to an attack on Ms Westin’s reasoning, as revealed in her letter dated 9 December 2020. The plaintiff contends that Ms Westin’s decision involved error of law or alternatively the taking into account of an irrelevant consideration, because of an allegedly erroneous understanding of the requirements of s 58E. There is no ground of legal unreasonableness.[17]
[17]In the plaintiff’s further amended originating motion for judicial review dated 25 June 2021 it had been pleaded (in the alternative) that Ms Westin had construed s 58E as requiring a threshold level of ‘significant’ disruption or deprivation before the discretion was enlivened, and that this was an error that rendered her decision ‘unreasonable’ (and otherwise infirm) (NCB 96). However, in the plaintiff’s written submissions dated 17 June 2021, the plaintiff had not characterised Ms Westin’s decision as ‘unreasonable’ on this basis or on any other basis. The defendant expressly noted this in her responsive written submissions dated 9 July 2021 at [74], where, accordingly, it was said that the Secretary presumed that unreasonableness was not pressed. The plaintiff must be taken to have accepted as much, because unreasonableness was not relied on or mentioned by the plaintiff’s counsel at the final hearing
As to the form of relief sought at the final hearing, the plaintiff, departing a little from the prayer for relief in his further amended application for judicial review dated 25 June 2021,[18] principally sought, as I understood his counsel, an order in the nature of certiorari to quash Ms Westin’s decision and an order in the nature of mandamus to require the Secretary, by herself or by a duly appointed delegate, to reconsider the subject matter of Ms Westin’s decision according to law. I refer to ‘the subject matter of Ms Westin’s decision’ to reflect the fact that, although Mr Dudley’s letters of request were limited to claimed disruptions or deprivations occurring up to the date of his last substantive letter (9 June 2020), Ms Westin considered not only those matters but also later events and circumstances that might be said to have involved disruptions or deprivations for Mr Dudley up to the date of his release on parole (11 November 2020), as was noted and discussed at the final hearing.[19]
[18]NCB 95.
[19]Transcript 18 lines 5–29.
In the alternative to orders in the nature of certiorari and mandamus, the plaintiff sought a declaration that Ms Westin’s decision was invalid and of no effect.
The defendant denied that Ms Westin’s decision involved any error of law or any taking into account of an irrelevant consideration. Further, as indicated above, the defendant also contended that the Secretary can never be under a legal duty even to consider whether or not to grant emergency management days to any prisoner or prisoners (much less to actually grant any emergency management days). Hence, according to the defendant, mandamus can never be awarded in relation to s 58E; and therefore, even where a decision under s 58E has actually been made, and made in legal error, it is futile, according to the defendant, to grant an order in the nature of certiorari or to make a declaration of invalidity. The defendant contended that the proceeding should be dismissed.
The relevant current legislation
Section 58E of the Corrections Act 1986 comprises the whole of Division 3A (‘Emergency management days’) of Part 8 (‘Temporary absence from prison’) of the Act. Since it was last amended in 2019, s 58E has provided as follows:
Emergency management days
(1)The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation—
(a)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or
(b) in other circumstances of an unforeseen and special nature.
(2)Subsection (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.
(3)This section does not apply to any prisoner (whether or not the prisoner was involved in any way) in respect of or in relation to—
(a)any event (including any emergency or riot) at the Metropolitan Remand Centre, Victoria, on 30 June 2015 and 1 July 2015 and the security response to that event; or
(b) any emergency, riot or other significant security incident that is caused or contributed to by that prisoner or any other prisoner.
Section 112(1) of the Act empowers the making of regulations for or with respect to a range of specified matters, including the following:
(r)the reduction of the length of a sentence of imprisonment or of the non-parole period, if one has been fixed in respect of the sentence, on account of good behaviour while the person serving the sentence is suffering disruption or deprivation—
(i)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or
(ii) in other circumstances of an unforeseen and special nature;
…
(u) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
Enacted pursuant to s 112(1)(r) of the Corrections Act 1986, Regulation 100 of the Corrections Regulations 2019 comprises the whole of Part 9 of those regulations. It has not been amended since the commencement of the Corrections Regulations 2019. It provides:
Emergency management days
For the purposes of section 58E(1) of the Act, the Secretary may reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period by –
(a)in the case of an industrial dispute or an emergency under section 58E(1)(a) of the Act up to four days for each day or part of a day on which the industrial dispute or emergency exists in the prison or police gaol in which the sentence is being served; or
(b)in the case of other circumstances of an unforeseen and special nature under section 58E(1)(b) of the Act, up to 14 days.
Enacted pursuant to paragraphs (j) and (u) of section 112(1), regulation 109 of the Corrections Regulations 2019, likewise, has not been amended since the commencement of the 2019 regulations. Regulation 109 provides:
Parole eligibility date
(1)As soon as possible after a court has fixed a non-parole period in respect of a prisoner, the Secretary must report to the secretary of the Board the prisoner’s parole eligibility date.
(2)If –
(a)a court fixes a new single non-parole period in respect of a prisoner under section 14(1) of the Sentencing Act 1991; or
(b)the Secretary has granted any emergency management days to a prisoner –
the Secretary must report to the secretary of the Board the prisoner’s new or reduced non-parole period as soon as possible.
(3)For the purposes of this regulation, to determine a prisoner’s parole eligibility date, the number of emergency management days granted to the prisoner must be deducted from the prisoner’s non-parole period.
(4)In this regulation –
“non-parole period” has the same meaning as in the Sentencing Act 1991;
“parole eligibility date” means the earliest date on which a prisoner is eligible to be released on parole if so ordered by the Board.
The grounds and particulars of the plaintiff’s challenge to Ms Westin’s decision
The precise way in which the plaintiff put his challenge to Ms Westin’s decision varied somewhat as between the further amended originating motion for judicial review, the (revised) written submissions of 17 June 2021 and the oral submissions advanced at the final hearing.[20] However, the gist of the challenge, as now refined, is sufficiently clear. As mentioned above, the grounds relied upon may be described (in the language of administrative law) as error of law or the taking into account of an irrelevant consideration.
[20]For example, as indicated at paragraph 14 above of this judgment, paragraphs 33 to 35 of the plaintiff’s written submissions seemed to be advancing an argument to the effect that Ms Westin’s own findings or ‘beliefs’ were irrelevant and that the Court could consider, objectively, whether the pre-conditions in s 58E had been satisfied. Indeed it appeared that that argument was being put forward as the plaintiff’s primary contention in relation to his attack on Ms Westin’s decision. However, as mentioned in paragraph 14 above, any such argument was expressly abandoned at the final hearing.
It is desirable to focus principally on the way in which the case was put in the oral submissions advanced at the final hearing.
According to the plaintiff, where a person makes a request for emergency management days under s 58E, the Secretary or her delegate must go through a process involving up to four steps.[21] The order of the steps may not be critical, but it might be important.[22] Each step is said to correspond with a mandatory aspect of s 58E.
[21]Transcript 2–13, 28, 31, 75–76.
[22]Transcript 30.
The plaintiff submits that the first step is to decide whether the requestor has been of good behaviour during the period of alleged deprivation or disruption.[23] If not satisfied of this, the decision-maker would go no further.
[23]Initially, the plaintiff’s counsel submitted that the question whether the person had been of good behaviour should be readily determinable from prison records: transcript 2. Later, counsel acknowledged that the matter might not be so simple: transcript 32.
The second step for which the plaintiff contends has two elements. The first element is to ascertain whether there was or is an industrial dispute or emergency in the relevant prison or gaol: see s 58E(1)(a). If the Secretary or her delegate decides that there was or is no industrial dispute or emergency, the second element of the second step will need to be addressed. The decision-maker will need to determine whether there were or are ‘other circumstances of an unforeseen and special nature’: see s 58E(1)(b). If the decision-maker is not satisfied as to one or other of these two elements, then, once again, the process would stop.
The third step, as the plaintiff would have it, is to determine whether or not, during the industrial dispute or emergency (if found) or in the other circumstances of an unforeseen or special nature (if found), the requestor was or is suffering ‘disruption’ or ‘deprivation’. Those words not being defined in the Act, they should, according to the plaintiff, be given their ordinary meaning.[24] The plaintiff further submits that the determination as to ‘deprivation or disruption’ should be informed, at least in part, by s 47 of the Corrections Act 1986 which, supplemented by other provisions of the Act, confers a (non-exclusive) set of rights on prisoners. While de minimis cases may be ignored, any other instances of ‘disruption’ or ‘deprivation’ must be treated as sufficient, the plaintiff says.[25] Again, satisfaction on this point is said to be a pre-condition to the taking of the fourth and last step.
[24]Transcript 5.
[25]Transcript 10.
According to the plaintiff, if disruption or deprivation is found, the fourth step is that the decision-maker must exercise the discretion, and must do so in accordance with regulation 100.[26] The requirement to exercise the discretion means that a grant of zero days is not permissible. There must be a positive exercise of the discretion.[27]
[26]Transcript 29–30, 76.
[27]Transcript 10, 12, 13.
The plaintiff says that Ms Westin erred in law by, or as a result of, not following these steps. He says that, although it may be inferred that Ms Westin was satisfied about Mr Dudley’s ‘good behaviour’,[28] Ms Westin did not expressly address the requirements of the first step in her letter of 9 December 2020. Likewise, the plaintiff says, although it may be inferred that Ms Westin was satisfied that there was an ‘emergency’ in the relevant prisons at all relevant times, namely the COVID-19 pandemic that was the subject of a State wide declaration of emergency,[29] Ms Westin did not expressly address the second step. According to the plaintiff, these two alleged omissions may not have mattered if Ms Westin had not stumbled at the third step, but, according to the plaintiff, she did. At that point, the plaintiff says, Ms Westin erected a threshold requirement not contained in s 58E, namely that any ‘disruption or deprivation’ be ‘significant’ or ‘more significant’. In support of that submission, the plaintiff emphasised the eighth paragraph of Ms Westin’s letter of 9 December 2020. The entire letter is set out above but, for convenience, I will set out the eighth paragraph again here:
I have reviewed the range of issues you have identified as causing you disruption and deprivation in prison, and while I note your circumstances, your application for additional EMDs is not approved. The overall disruption or deprivation that you have experienced in prison, particularly at Hopkins and Langi Kal Kal, has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of additional EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.
The plaintiff contends[30] that it is clear from this eighth paragraph of the letter, and from subsequent references in the letter to various particular changes to prison routine to which Mr Dudley had drawn attention in his letters, that Ms Westin was in truth satisfied that there had been both ‘disruption’ and ‘deprivation’ within the meaning of s 58E properly construed. Therefore, the plaintiff says, Ms Westin was obliged, as a matter of law, to proceed to the fourth and final step, and, in that process, to make a positive grant of (additional) emergency management days to Mr Dudley.
[28]As mentioned above, I understand that this is common ground.
[29]I understand that this too is common ground.
[30]See transcript 14–16.
Much the same argument had been put in paragraphs 36–38 of the plaintiff’s written submissions of 17 June 2021. There, it had been contended (albeit, apparently, only in the alternative),[31] that the findings of Ms Westin on the matters now described as falling within the first three ‘steps’ were such as to generate an ‘entitlement’ in Mr Dudley to have the length of his sentence reduced ‘in accordance with the regulations’; and to impose a duty on Ms Westin (as the Secretary’s delegate) to take action to give effect to that ‘entitlement’. Earlier in the written submissions it had also been put that the use of the word ‘may’ in s 58E was not determinative.[32] In this regard, in both the written submissions and the oral submissions, the plaintiff relied mainly on Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd[33] and Victorian Building Authority v Andriotis, and particularly on the following statement of Gageler J in Andriotis:[34]
Any discretion takes its incidents from its context, and there is no novelty in the proposition that a discretion to take action to give effect to an entitlement can operate in substance as a duty compellable in an appropriate case by mandamus.[35]
[31]The primary argument appeared to be the jurisdictional fact argument that was ultimately abandoned: see footnote 20 above.
[32]Plaintiff’s written submissions dated 17 June 2021, [21]–[31].
[33](1994) 182 CLR 51, esp at 64–66; 87–88.
[34](2019) 268 CLR 168, esp at 195–196 [88] (Gageler J) as well as at 173–174 [4] and 181–182 [41] (Kiefel CJ, Bell and Keane JJ).
[35]Citing Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 64–66, 81, 87–88, 97–99.
The plaintiff’s challenge to Ms Westin’s decision is not made out
Putting aside for the time being the defendant’s contention that neither the Secretary nor any delegate can ever be under any duty even to consider exercising the power conferred by s 58E, and the defendant’s consequential contention that action or inaction under s 58E is in practice immune from judicial review, I would accept that, at least where a prisoner or parolee makes a request for emergency management days under s 58E and the Secretary or her delegate has chosen to consider the request, the Secretary or her delegate is required to ask herself whether she is satisfied that the three pre-conditions in s 58E(1) have been met. In fact, in addition, the Secretary or her delegate would need to be satisfied, also, that s 58E(3) does not apply, ie that the request is not in respect of the event at the Metropolitan Remand Centre, Victoria, in 2015 referred to in s 58E(3)(a) and that the request does not relate to ‘any emergency, riot or other significant security incident that is caused or contributed to by [any prisoner]’ within the meaning of s 58E(3)(b).
Subject to her abovementioned contention, the Secretary would not cavil with the plaintiff about the contents of his ‘step one’ and ‘step two’. Nor would I.
On the other hand, like the Secretary, I see nothing in s 58E to require that the matters arising under those two ‘steps’, or any other matters arising under s 58E, be considered in any particular order.
As to ‘step three’, I would reserve judgment on the question whether any level or amount of ‘disruption’ or ‘deprivation’, however low, as long as it is beyond a de mininis level or amount, is necessarily sufficient, if found, to complete this ‘step’. The question does not need to be decided in this case. On my reading of Ms Westin’s letter, I am not satisfied that she discerned or imposed any threshold on the level or amount of ‘disruption’ or ‘deprivation’ that must be found before she could proceed to the ‘fourth step’, ie the exercise (or not) of the discretion. Her letter should not be read minutely and finely, with an eye keenly attuned for error.[36] It is true that, as a matter of grammar, Ms Westin used the expressions ‘significant’, ‘more significant’ and ‘significantly’ as qualifiers of the expressions ‘disruption’ and ‘deprivation’. However, as Thomas JA said in Emaas v Mobil Oil Australia Ltd,[37] in a passage noted subsequently in my judgment in Jetstar Airways Pty Ltd v Free,[38] the word ‘significant’ very much takes its meaning from the context in which it is used. Thomas JA referred with approval to a comment in an American case as follows:
Although all words may be ‘chameleons, which reflect the colour of their environment’, ‘significant’ has that quality more than most. It covers a spectrum ranging from ‘not trivial’ through ‘appreciable’ to ‘important’ and even ‘momentous’.
In Jetstar[39] I considered that the word ‘significant’ had been used in the relevant statute in a quantitative sense. Similarly, in the present case, I consider that Ms Westin has used the word in a quantitative sense and also in a comparative sense. This is quite apparent, especially in her use of the expression ‘more significant’. But, importantly, Ms Westin was not referring to significance in relation to the ‘third step’. In effect, she had already duly dealt with the ‘third step’ by accepting that Mr Dudley had suffered ‘disruption’ and ‘deprivation’, as he had claimed. The letter as a whole confirms that. Moreover, Ms Westin did in fact consider the exercise of the discretion. It was only in doing so that she took into account the matter of ‘significance’, ie the matter of the level or amount of the disruption and deprivation that Mr Dudley had suffered. This is clear from the wording of the critical eighth paragraph of the letter, in that Ms Westin stated that, because the disruption and deprivation had not been ‘significant’ or ‘more significant’, it did not ‘warrant the granting’ of additional emergency management days. And, as senior counsel for Mr Dudley effectively acknowledged, the significance of the disruption or deprivation (in the sense of the level or amount or extent of the disruption or deprivation) is a matter that the repository of the power under s 58E is entitled to take into account in determining how to exercise the ultimate discretion.[40]
[36]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[37][2000] QCA 513 at [26].
[38][2008] VSC 539 at [104].
[39]Ibid. See also Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2019] FCA 1677 (O’Callaghan J) at [79] and cases there cited, especially Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377 at [54(e)].
[40]See transcript 30–31, 75 and 78.
Turning to the ‘fourth step’, I do not accept that the Secretary or her delegate, once satisfied as to the three (or four) pre-conditions, must always make a positive grant of something by way of emergency management days. Putting aside, for the moment, cases of legal unreasonableness, no ‘entitlement’ to a grant of emergency management days arises.
Section 58E(1) provides that the Secretary ‘may’ reduce a person’s sentence in the circumstances described. As the plaintiff’s written submissions acknowledge, ‘[t]here is a prima facie presumption that permissive or facultative expressions, such as “may”, operate according to their natural meaning’.[41] In Victoria, that presumption is strengthened, if not transformed into an absolute rule,[42] by s 45 of the Interpretation of Legislation Act 1984.
[41]Plaintiff’s written submissions [23], citing Ward v Williams (1955) 92 CLR 496, 505. See also defendant’s written submissions dated 9 July 2021 [8].
[42]See s 45(3) of the Interpretation of Legislation Act 1984; cf s 4(1) of that Act; and see Dennis Pearce, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) [5.52], [5.61]–[5.62].
Further, as the defendant submits,[43] the legislative history of s 58E provides additional support for the proposition that s 58E does not create an entitlement to emergency management days, but rather provides for a power to grant them. Before 1989, s 60(3) of the Corrections Act 1986 had provided, subject to exceptions, that (emphasis added by the defendant):
[43]Defendant’s written submissions dated 9 July 2021 [11]–[16].
Every prisoner is entitled at the beginning of the prisoner’s sentence of imprisonment to remission in respect of that sentence calculated in accordance with the regulations.
The Corrections (Remissions) Act 1991 (Vic) repealed s 60 and inserted s 58E into the Act, substantially in its current form. The explanatory memorandum to the relevant Bill[44] indicated that it was Parliament’s intention to abolish the entitlement to remissions, and, instead, provide for a discretion to grant emergency management days, vested in the Director-General (now Secretary). The explanatory memorandum stated:
[44]Corrections (Remissions) Bill 1990.
[T]he Bill abolishes the entitlement to remission on sentences of imprisonment and… enables the Director-General to grant emergency management days…
Clause 4 makes provision for the Director-General to give emergency management days to all prisoners serving a sentence of imprisonment for good behaviour on account of disruption or deprivation suffered by a prisoner during an industrial dispute, emergency or in other unforeseen and special circumstances…
Similarly, the second reading speech of the Minister contained the following passages:[45]
This Bill represents the government’s commitment to reform the law to ensure that sentences of imprisonment imposed by the courts are actually served by prisoners.
The Bill abolishes the entitlement to remission for prisoners sentenced after the date of the commencement of the Act…
The abolition of all remissions will include the director-general’s power to grant additional and special remissions under regulation 98 of the Corrections Regulations 1988. Currently additional remissions may be granted for good behaviour, to promote the prisoner’s welfare and for unforeseen and special circumstances, while special remissions are only granted for good conduct when a prisoner suffers disruption due to an industrial dispute or an emergency exists within the prison.
Despite the abolition of such remissions, it is necessary for the director-general to retain the power to deduct days from a prisoner’s non-parole period for good behaviour during industrial disputes or other emergencies. For this reason, the Bill provides for the director-general the discretion to deduct some time as a reward for good conduct during such periods of disruption.[46]
As the defendant also noted, the purposes set out in section 1 of the Corrections (Remissions) Act 1991 include ‘to abolish entitlement to remission on sentences of imprisonment’ and ‘to enable the Director-General of Corrections to grant’ emergency management days in respect of sentences of imprisonment. Incidentally, it seems safe to assume that the concerns expressed by the Full Court of the Supreme Court of Victoria in 1985 in R v Yates[47] about the artificiality of the then requirement on sentencing courts to ignore the existence of remissions and to ignore the policies and practices of the Parole Board had a connection with these 1991 reforms to the Corrections Act 1986.
[45]Victoria, Parliamentary Debates, Legislative Assembly, 30 November 1990, 2909 (Mr Roper).
[46]Emphasis added by the defendant in quoting from the second reading speech.
[47][1985] VR 41.
As the defendant further points out, in Kheir v Robertson[48] McDonald J recently observed in relation to s 58E that:
…[t]here is no entitlement to EMDs. Section 58E confers a discretion upon the Secretary or their delegate to grant EMDs and thereby reduce an applicant’s sentence or non-parole period…
[48][2019] VSC 422, [107].
Likewise, in Knight v Shuard,[49] McMillan J referred to s 58E as conferring a ‘discretionary administrative power’.[50]
[49][2016] VSC 413.
[50]Ibid [35].
Both Royal Insurance and Andriotis, on which the plaintiff relies in this respect, were very different cases on very different legislation. In each of them, the relevant statutory context and the relevant general law were held to create entitlements quite independently of the provision in question that created the power that was said to operate as in substance a duty. That is obviously not so here. Rather, the present context clearly shows that, at least in their ordinary operation, s 58E and the regulations create a discretionary power to grant emergency management days, not a duty to do so. Section 58E and the regulations do not create an entitlement in the person concerned to some minimum quantity of emergency management days merely because the Secretary accepts that the pre-conditions have been met. What would that minimum quantity be? There is simply no telling. Regulation 100 imposes maximums, not minimums. At the final hearing, counsel for the plaintiff submitted that, because there was no express reference to ‘zero’ days in the legislation, it was not open to the Secretary or her delegate to grant zero days, once the pre-conditions were satisfied. He suggested that there could be grants of fractions of a day. However, I do not think that the grant of fractions of a day is envisaged by, or authorised by, the regulations. Both regulation 100 and regulation 109 seem to assume that any grant of emergency management days under s 58E will be a grant of at least one whole day. That would accord with the normal way in which sentences are calculated in Victoria.
Even if grants of fractional days were possible, my conclusion would be the same. A particular industrial dispute or emergency might be of very brief duration. So might be ‘other circumstances of an unforeseen and special nature’. Whatever the duration, the related disruption or deprivation might be quite minor. Moreover, the disruption or deprivation might have been ameliorated or compensated for in other ways. Indeed, it seems from Ms Westin’s letter of 9 December 2020 that the Corrections authorities did in fact take various steps in 2020 by way of amelioration of, or compensation for, deprivations or disruptions suffered in prisons because of COVID-19 measures, as well as actually granting emergency management days in relation to some particular sets of circumstances. In any event, various other legitimate considerations, such as lawful governmental policy or lawful corrections policy, might come into play in particular circumstances.[51]
[51]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Brennan P); Plaintiff S279/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179, 194 [54].
In my view, as indicated above, the mere acceptance by the Secretary or her delegate that the s 58E pre-conditions have been met does not, of itself, entitle a prisoner or parolee to the grant of emergency management days. It may be that, in a particular set of circumstances, a refusal to grant any emergency management days might be found by a court to involve legal unreasonableness,[52] but that would not be inconsistent with my understanding, for present purposes, of the proper construction of s 58E and the regulations.
[52]See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [23].
As already mentioned, the plaintiff accepts that Ms Westin’s decision was not legally unreasonable.[53] That acceptance was inevitable. Ms Westin’s reasons were carefully explained and, so explained, her decision did not lack evident and intelligible justification. The justifiability of the decision was enhanced by the fact that Ms Westin had already actually granted to Mr Dudley five emergency management days for one of the instances of disruption or deprivation of which, unbeknown to Ms Westin at the time, he had complained, namely the lockdowns at Hopkins from 8 May to 12 May 2020 which restricted access to facilities such as the library. And the same may be said about the fact that Ms Westin had also granted Mr Dudley 30 emergency management days in relation to a matter of which he had not complained, namely being accommodated in a restrictive regime whilst residing at the Metropolitan Remand Centre in or about July 2020.
[53]Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
For completeness, I would further note that the plaintiff does not submit that Ms Westin (wrongly) fettered the exercise of her discretionary power by reference to some fixed rule of policy. Senior counsel for the plaintiff said expressly[54] that no complaint of fettering was being made in relation to the terms of the abovementioned internal policy documents referred to in Ms Westin’s affidavit. Nor did the plaintiff otherwise rely on this well-known administrative law ground of challenge, notwithstanding that, in a recent series of cases in this Court relating to decision making under s 58E of the Corrections Act 1986 brought by another prisoner, Mr Kheir (being a series of cases referred to by both sides in their list of authorities and general submissions in this case), wrongful fettering was the principal administrative law ground on which Mr Kheir had succeeded.[55] In my view, the plaintiff was, once again, entirely correct not to advance the ground of wrongful fettering of discretion in this case. Unlike the corresponding communications from the delegate in the Kheir cases,[56] Ms Westin’s letter of 9 December 2020 cannot fairly be read as indicating that she had imposed an improper fetter on her discretionary power under s 58E, whether by reference to notions of significance or otherwise. Moreover, it would have been somewhat self-contradictory for the plaintiff to have complained that Ms Westin had unduly restricted her discretion. As indicated above, the plaintiff’s case was to the opposite effect. He contended that the mere fulfilment of the pre-conditions in s 58E (ie, the first three ‘steps’) gave rise to an implicit statutory fettering of the exercise of the discretion at the ‘fourth step’. However, in my view, for the reasons I have given, that is not so. The mere fulfilment of the pre-conditions does not and did not compel a positive exercise of the discretion.
[54]Transcript 77.
[55]Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222 (T Forrest J), [33]; Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76 (Richards J); Kheir v Robertson [2019] VSC 422 (McDonald J); Kheir v Robertson [2019] VSCA 229 (Whelan, McLeish and Weinberg JJA).
[56]Cf Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222 (T Forrest J), [16], [32]–[33].
It follows that the plaintiff’s challenge to Ms Westin’s decision is not made out.
Observations on the defendant’s argument that there is no duty to grant or consider granting emergency management days
Strictly speaking, because the plaintiff’s challenge to Ms Westin’s decision fails in any event, there is no need to deal with the defendant’s argument to the effect that she can never be under a duty to grant or consider granting emergency management days.
However, since the present case has had some features of a test case, I propose to outline, and to make some observations about, the defendant’s argument.
The defendant submits that the question whether s 58E imposes a duty to consider exercising the power to grant emergency management days if the pre-conditions are or might be satisfied is to be resolved through the construction of the Act, by a consideration of the text, context and purpose of s 58E.[57] She says that the text of s 58E shows (for the reasons already advanced) that the power is discretionary.[58] She submits that the provision contains no language to indicate that the power is to be exercised upon a prisoner invoking its exercise or in any other circumstance.[59] Significantly, the defendant submits, the statute does not provide a mechanism for prisoners to seek to have the power exercised in their favour – there is no provision for an application and decision-making process from which it might be inferred that the Secretary might be obliged, on receipt of an application, to consider the exercise of the power. She adopts and adapts the language of the Full Court on appeal from Animals’ Angels as follows:
as drafted [section 58E(1)] provides that it is a matter for the Secretary to determine whether or not he or she thinks there are [grounds for exercising the power]: no stepped process is prescribed.[60]
[57]Defendant’s written submissions dated 9 July 2021 [23].
[58]Ibid [24].
[59]Ibid citing Animals’ Angels v Secretary, Department of Agriculture (2014) 141 ALD 158, 181–182 [70]–[71] (Edmonds J) (‘Animals’ Angels’); Yasmin v Attorney-General (Cth) (2015) 236 FCR 169, 194 [106] (‘Yasmin’).
[60]Ibid [24], referring to Animals’ Angels v Secretary, Department of Agriculture (2014) 228 FCR 35 (‘Animals’ Angels (Appeal)’), 64 [91] (Kenny and Robertson JJ, Pagone J agreeing at 75 [134]).
According to the defendant, there is nothing in s 58E that requires the Secretary to turn her mind to the question of whether the power should be exercised. Rather, the defendant says, it is left at the sole discretion of a Secretary for the purpose of managing prisons.[61]
[61]Ibid [25].
Similarly, the defendant submits, the context and purpose of s 58E(1) do not support the implication of an obligation on the Secretary to consider exercising the power. Section 58E was inserted into the Act as part of reforms that abrogated a right to remission vested in prisoners. Accordingly, the defendant submits, s 58E does not give any right, entitlement or privilege to prisoners. The purpose of the provision, the defendant says, is to enable the Secretary to reward good behaviour at times when prison security might have been compromised. It gives prisoners an incentive to be of good behaviour in those times. Accordingly, the Secretary submits, the conditions on the power (and the exercise of the power itself) require a value judgment by the Secretary as part of her function in managing prisons. The defendant says that it is for the Secretary to determine when she might wish to consider giving the reward for good behaviour as an incentive to a particular prisoner and other prisoners in the future.[62]
[62]Ibid [26].
As a further and related matter, the defendant submits that, if the provision imposed a duty to consider exercising the power, that would impose an ‘intolerable burden’ on the Secretary.[63] If s 58E were to impose a duty to consider the exercise of the power, it would be ‘enlivened once information [came] to the attention of the department’ that the matters in s 58E may be established, and the Secretary ‘could be in breach of a duty to consider if information came into the hands of an officer in the Department, wherever the officer might be located’.[64]
[63]Ibid [27] citing Yasmin, 191 [95]; (Animals’ Angels (Appeal)), 63 [90].
[64]Ibid [27], citing Animals’ Angels 182 [75].
According to the defendant, a corollary of the conclusion that s 58E does not impose a duty on the Secretary is that the power to grant emergency management days under s 58E is not amenable to mandamus. This is because orders ‘in the nature of mandamus will only be made to compel the performance of a public duty’.[65] So, the defendant submits, even if the plaintiff’s grounds of review were otherwise good, the Court could not grant the remedy of mandamus.[66]
[65]Citing Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76 [18] (Richards J).
[66]Defendant’s written submissions dated 9 July 2021, [28].
In relation to the proper disposition of this proceeding, the defendant, having noted her earlier contention that mandamus is not available to compel the exercise of the power in s 58E, proceeds to note, further, that relief in the nature of certiorari is discretionary. She submits that certiorari ought to be refused as a matter of discretion in circumstances such as these where to quash the decision would have no practical effect.[67] There would be no utility in quashing Ms Westin’s decision because there would be no duty on the Secretary to consider making a decision.[68]
[67]Citing Re McBain; ex parte Australian Catholic Bishops’ Conference (2002) 209 CLR 372 [80], [82], [95], [118]–[121]; [281]–[285].
[68]Ibid [84].
The defendant further notes that the Court’s power to grant declaratory relief is also discretionary. She submits that the party seeking the relief must show that the declaration would be of practical utility at the time when the declaration is made, and that the Court may refuse to grant a declaration if the grant would be futile.[69] If mandamus and certiorari were not to be ordered, the defendant submits, there would be no practical utility to the plaintiff in this Court granting declaratory relief.[70]
[69]Citing MacKenzie v Head, Transport of Victoria [2021] VSC 100 [230].
[70]Defendant’s written submissions dated 9 July 2021, [85].
Accordingly, the defendant submits, even if the plaintiff were to make out a ground of his challenge, the proceeding should still be dismissed.[71]
[71]Ibid [86].
Since this proceeding is to be dismissed in any event, I ought not and will not express fully concluded views on the defendant’s argument. However, I would indicate that I have very considerable doubt as to its correctness.
As the defendant herself has pointed out, s 58E was inserted in the Corrections Act 1986 some thirty years ago. The present argument was not put on behalf of the correctional authorities for the first 28 years of the existence of s 58E. About half-way through that period, in 2004, it could have been put to the trial judge in Pavic v Anderson,[72] Smith J. But it was not. Smith J determined that the then Commissioner, Corrections Victoria, had been in jurisdictional error in failing to be satisfied that the s 58E pre-conditions had been met in that case. His Honour ordered that the decisions in question be quashed and that the matter be referred back for hearing and determination according to law by the Commissioner.[73] The Commissioner appealed. Even then, the present point was not raised. Nor, apparently, did any member of the Court of Appeal see any difficulty about the jurisdiction or power of the Court to grant certiorari or mandamus in relation to a decision under s 58E. The appeal was allowed, but only on the basis that there had in fact been no jurisdictional error on the part of the Commissioner.[74]
[72]Pavic v Anderson [2004] VSC 410.
[73]Ibid [38].
[74]Anderson v Pavic [2005] VSCA 244 at [27], [29], [30] and [31].
In 2018 and 2019, as mentioned above, a prisoner, Mr Kheir, brought a series of cases in this Court relating to refusals to grant him emergency management days under s 58E. The first of the Kheir cases came before T Forrest J in 2018.[75] T Forrest J determined that the Commissioner for Corrections, acting as the delegate of the Secretary, had unduly fettered her discretion under s 58E[76] and, as a related matter, had demonstrated ostensible bias.[77] On these grounds, T Forrest J determined that the decision could not stand, and he ordered that the prisoner’s s 58E application be remitted to a delegate of the Secretary, who, if possible, had had no previous involvement with Mr Kheir’s application for emergency management days.
[75]Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222.
[76]Ibid [33].
[77]Ibid [38].
There were delays in the appointment of a new delegate and in the making of a new decision. In late 2018, Mr Kheir commenced an application in this Court for mandamus to compel the making of a decision. By the time the application came on for hearing, a decision had been made. Richards J then heard the parties as to the costs of the abortive proceeding. In resisting Mr Kheir’s claim for costs, the Secretary put, for the first time in some 28 years, an argument along the lines now put to me. The argument was put to Richards J in an endeavour to strengthen the Secretary’s position to the effect that Mr Kheir’s application for mandamus ought not to have been brought at all. Richards J was able to determine the question of costs without forming concluded views on the argument. Her Honour determined that Mr Kheir had had, at the very least, an arguable case that the Secretary had had a duty to consider and determine his application under s 58E.[78] Her Honour awarded costs in favour of Mr Kheir.
[78][2019] VSC 76, [22].
Next, in 2019, Mr Kheir challenged before McDonald J the decision that had been made by the new delegate on remittal. Perhaps because the new delegate had considered (or reconsidered) the matter pursuant to the order of the Court made by T Forrest J,[79] the present argument was not advanced on behalf of the correctional authorities. McDonald J dismissed the proceeding, holding that the substantive grounds relied upon had not been made out.[80] Mr Kheir appealed to the Court of Appeal against the judgment of McDonald J. The appeal was dismissed. Again, the present argument was not put. However, there is no indication that either McDonald J or the members of the Court of Appeal perceived any difficulty about the Secretary being said to have a duty to consider applications made under s 58E. Indeed, the Court of Appeal commented that the judgment of T Forrest J ‘repays careful consideration’.[81] Moreover, when the members of the Court of Appeal came to deal with the question of leave to appeal, they observed that ‘the very best that the applicant could hope for, if he were to succeed on [the relevant ground], would be to have the delegate’s decision set aside, and the matter remitted for reconsideration by yet another delegate’.[82]
[79]See and compare Plaintiff S297/2013 v Minister for Immigration and Broder Protection (2015) 255 CLR 231.
[80][2019] VSC 422.
[81][2019] VSCA 229, [17].
[82]Ibid [72].
So far as the present point of statutory construction is concerned, the significance of the quietude of the correctional authorities and of this Court over the last 30 years in relation to the point is perhaps exceeded by the fact that s 58E was amended, in a limited way, in 2019, apparently in direct response to the abovementioned judgment of T Forrest J in Kheir.[83] As indicated above, His Honour had held that the Commissioner had erred by fettering her discretion. More particularly, his Honour had found that the Commissioner had adopted a fixed rule to the effect that no emergency management days would be granted under s 58E in cases where prisoners themselves had created the emergency, even if the applicant for emergency management days had not been personally involved in creating the emergency.[84] In Kheir, the emergency in question had been created by a prison riot that occurred between 30 June and 1 July 2015 at the Metropolitan Remand Centre. Plainly, the effect of the insertion of s 58E(3) was to reverse the direct effect of the judgment of T Forrest J. Importantly, however, there was no attempt in the amending legislation[85] to deal with the assumption underlying the granting of relief by T Forrest J, namely that the Secretary, by herself or by her delegate, is required to consider whether or not to grant emergency management days upon an application for the same being made by a relevant person. The Victorian Parliament could easily have inserted a provision precluding the making of any such assumption (or any corresponding finding) had it so chosen. Section 46A(7) of the Migration Act 1958 is a well-known example of a precedent that the Victorian Parliament could have copied.[86] In my view, this is a legitimate matter to take into account for the purposes of construing s 58E.[87]
[83][2018] VSC 222.
[84]Ibid [32].
[85]Act number 45 of 2019.
[86]See Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144.
[87]See Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [3.51]–[3.53] and cases there cited, especially Platz v Osborne (1943) 68 CLR 133.
Contrary to the Secretary’s submissions, the mere fact that neither the Corrections Act 1986 itself nor the regulations under it provide a mechanism for prisoners to apply for emergency management days is far from determinative, notwithstanding that, as counsel for the Secretary pointed out during the oral hearing, the Corrections Act 1986 does contain one section, namely s 47O, which provides for the making of applications by prisoners. Section 47O is in a different Part (namely Part 6) of the Act. It was only introduced recently, and quite separately from the 2019 amendment to s 58E.[88] The subject matter is very different, namely an application for an acknowledgement by the Secretary of the sex of the prisoner. In any event, as a matter of principle, the constructional exercise is not greatly assisted by looking for a statutory application process. In Murphyores Incorporated Pty Ltd v The Commonwealth,[89] Mason J referred with approval to what Kitto J had said in R v Anderson; Ex part Ipec Air Pty Ltd,[90] as follows:
[88]It was inserted by Act number 25 of 2019, s 29.
[89](1976) 136 CLR 1, at 17–18. See also Minister for Immigration v Li (2013) 249 CLR 332, 370–371 [90] (Gageler J).
[90](1965) 113 CLR 177 at 189.
It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v Wakefield.[91] The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law.
And Mason J went on directly to say:
It is not to the point to say that the regulation makes no provision for the making of applications and still less that it does not explicitly impose on the Minister a duty to determine applications. The existence of the discretion attracts the principle of construction enunciated by Kitto J. It is implicit in what has been said that the existence of the discretion implies the existence of a duty to determine any application that is made.
[91][1891] AC 173, 179.
Recently, an academic has cited the statement of Mason J for the following propositions:[92]
In the absence of an express statutory provision, Australian law presumes those invested with statutory discretion to confer new rights on individuals are bound to consider the exercise of the powers on request or application. This is so even if the power is conferred as an ‘unfettered discretion’ and the enabling legislation does not specifically mandate consideration: The ‘existence of the discretion implies the existence of a duty to determine any application that is made’.[93] The implied duty to determine applications is justified by reference to a general law presumption that statutory powers are to be exercised reasonably.[94]
[92]Emily Hammond, ‘Procedural Fairness in Application Cases: Is Compellability of Consideration a Critical Safeguard?’ (Legal Studies Research Paper Series No 20/32, The University of Sydney Law School, June 2020) 124–125.
[93]Ibid citing Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, 17–18 (Mason J) applying R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 197–199 (Taylor and Owen JJ); Sharpe v Wakefield [1891] AC 173, 179.
[94]Ibid 125 citing Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1, 17–18 (Mason J).
In the same article, in connection with the applicability of the rules of natural justice or procedural fairness in public law, the learned author says:[95]
The starting point for this article is that statutory decisions in application cases satisfy the threshold principle for procedural fairness. For reasons discussed in more detail below, this proposition is firmly ensconced in Australian law. It would be considered trite to say that an applicant for a new statutory right has an interest in the resolution of her application that attracts the presumptive application of procedural fairness to a statutory decision on her application (and to any preliminary decision that is a ‘step in a process’ towards the final and operative decision).[96] Importantly, it is no longer considered that procedural fairness is owed to applicants only in those exceptional cases where the administrative action on requests for a right encroaches on anterior or extrinsic legal interests such as personal or commercial reputation,[97] confidentiality[98] or liberty.[99] In the exceptional cases where administration of a statutory power to confer rights does encroach on anterior or extrinsic legal interests, this can provide a distinct and independent basis for implying a duty of fairness. However, the presumptive operation of procedural fairness in application cases cannot be explained on the basis that decision-making in application cases encroaches on anterior legal interests. It rests instead on the court’s recognition that an adverse statutory decision on an application for a statutory right has an effect on the applicant’s interests that satisfies the threshold principle for procedural fairness.
If the author is correct, then it would seem likely that action or inaction under s 58E, after a request, attracts the principle of procedural fairness, and a fortiori the ordinary supervisory jurisdiction of this Court.[100]
[95]Ibid 124.
[96]Ibid 124 citing M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017); M Groves, ‘Legitimate Expectations in Australia; Overtaken by Formalism and Pragmatism’ in M Groves and G Weeks (eds), Legitimate Expectations in the Common Law World (Bloomsbury, 2017) 319, 326.
[97]Ibid citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 576–578 (Mason CJ, Dawson, Toohey and Gaudron JJ); Annetts v McCann (1990) 170 CLR 596, 608 (Brennan J); Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231, [144]; Cornwall v Rowan (2004) 90 SASR 269, 332 [250]; Victoria v Master Builders’ Association (Vic) [1995] 2 VR 121, 151.
[98]Ibid citing Johns v Australian Securities Commission (1993) 178 CLR 408.
[99]Ibid citing Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 353–354 [76]–[78]; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 205 [76].
[100]See, generally, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
In Yasmin v Attorney-General (Cth),[101] to which the Secretary refers in her submissions (and on which she in part relies), the Full Court of the Federal Court did not accept that there was a ‘starting point’ of the kind which the academic article just referred to might suggest. However, the Court observed that, while the statement by Mason J cannot be taken as some kind of free standing principle, ‘it illustrates again that the conferral of public power by statute on the holder of public office, together with the subject matter and sphere of affectation of the power, are the principal considerations in identifying whether Parliament intends [that] the repository must, on a given occasion, consider and determine how the power should be exercised.’
[101](2015) 236 FCR 169, 187 [79].
In my opinion, Yasmin tends quite strongly against, not in favour of, the defendant’s argument in the present case.
Mr Yasmin had been convicted of the offence of people smuggling contrary to the Migration Act 1958 (Cth). He was sentenced to five years imprisonment. Through his solicitors, he requested a pardon under the Royal Prerogative of Mercy, or alternatively a referral to the Court of Appeal of Western Australia. The request was made to the Commonwealth Attorney-General. Section 140 of the Sentencing Act 1995 (WA) provided that a petition for the exercise of the Royal Prerogative of Mercy might be referred by the Attorney-General of Western Australia to the Court of Appeal of Western Australia. Having received the request, the Commonwealth Attorney-General released Mr Yasmin on licence. The letter granting the release on licence referred to Mr Yasmin’s request for a pardon or for referral, but did not expressly dispose of that request. Despite the passing of several years and some further correspondence, no decision had been made by the Commonwealth Attorney-General. The appellant then sought judicial review of the failure of the Attorney-General to decide whether to refer his request to the Court of Appeal of Western Australia, on the basis of unreasonable delay within the meaning of s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Commonwealth Attorney-General objected to the competency of the application on the ground that the Attorney-General was under no duty to make a decision regarding whether to refer the appellant’s case pursuant to s 140 of the Sentencing Act. In the end, the Full Court held that the power conferred on the Attorney-General under s 140 of the Sentencing Act carried with it a duty to consider, and then determine, whether to exercise that power.[102] The occasion for doing so was the filing of a petition for mercy, whether or not referral under s 140 was expressly sought. It is noteworthy that the Full Court reached this conclusion notwithstanding the traditional reluctance of courts to interfere with processes connected with the Royal Prerogative of Mercy.[103]
[102]This holding was later noted, with apparent approval, by the Full Court of the Federal Court in Attorney-General (Cth) v Ogawa [2020] FCAFC 180, [88].
[103]See Holzinger v Attorney-General (Qld) [2020] QCA 165; Attorney-General (Cth) v Ogawa [2020] FCAFC 180; Zhong v Attorney-General (Vic) [2020] VSC 302 (Croucher J), especially at [110]–[116].
Certain parts of the reasoning in Yasmin are of particular relevance to the present case, as follows.
The Full Court accepted that a broad power of delegation of the relevant power was a factor in the construction of the section conferring the power. It tended to undermine the ‘intolerable burden’ argument.[104] As noted above, under s 8(1) of the Corrections Act 1986, the Secretary has a broad power of delegation (to a broad range of officers) that extends to her power under s 58E of the Act. It might be added that, under s 8(2), the delegation may be to ‘a person or class of persons’.
[104]Yasmin 181 [50]–[51].
In Yasmin, the Full Court took into account the nature of the power. The Court commented that the power was a public power. It was reposed in a public officer, for public purposes. Those public purposes pertained both to the interests of the individual offender, and to the proper administration of the criminal justice system.[105] Much the same may be said in relation to the power conferred by s 58E of the Corrections Act 1986.
[105]Ibid 184 [67].
Further, the Full Court expressed the opinion that, although the power under s 140 of the Sentencing Act was properly described as discretionary, it was a discretion as to the outcome of the exercise of the power, not a discretion as to whether to reach a conclusion at all.[106] Again, it may well be that the same should be concluded in relation to s 58E.
[106]Ibid 184 [68].
Next, the Full Court observed that the power under s 140, of its nature, was one that affected the rights and entitlements of an individual. It did so because it was capable of affecting the continuation of any sentence of imprisonment, or other punishment, still being served. If the statutory process were to be put in train, it may affect the rights of the petitioner. In that sense, the Full Court observed, the power concerned the peculiar interests of a particular person rather than the vindication of a public right having regard to government policy.[107] The Full Court went on to say that the public purposes to be served by the referral power were important to its construction:[108]
Authorities dealing with orders in the nature of mandamus focus on the public nature of the power being exercised, and that it is exercised by a public officer or body in relation to an individual or group who depend on the exercise of power in order to have their rights and interests determined.
Yet again, there is a clear resemblance to the present case.
[107]Ibid 184 [69].
[108]Ibid 185 [74].
The Secretary relies heavily on Animals’ Angels and Animals’ Angels (Appeal), but in Yasmin the Full Court distinguished those decisions[109] on grounds that might well be thought to distinguish them from the present case too, as follows.
[109]Two members of the Yasmin Full Court, namely Kenny and Robertson JJ, had also sat on the appeal from Animals’ Angels.
As the Full Court in Yasmin indicated, in Animals’ Angels the relevant statutory provision conferred a power to require an exporter to show cause why their export licence should not be cancelled, or not renewed, if the Secretary to the Department of Agriculture had reasonable grounds for believing certain specified circumstances existed in relation to the export licence. At first instance, Edmonds J had held that the relevant statutory provision (s 23 of the Australian Meat and Live-stock Industry Act 1997 (Cth)) should not be construed as carrying a duty to consider its exercise. Edmonds J had relied on the reasoning of French CJ and Kiefel J, Hayden J and Crennan J in Minister for Immigrationand Citizenship v SZGUR[110] to support that conclusion.
[110](2011) 241 CLR 594.
The appeal in Animals’ Angels was dismissed, but the Full Court emphasised that the question whether a discretion carries with it an implied duty of the kind asserted was a matter of statutory construction. The Secretary to the Department of Agriculture had raised the spectre of an ‘intolerable burden’ or an ‘impossible burden’ on the repository of the power if such an implication was made.[111] Ultimately, in Animals’ Angels, the Full Court concluded that the relevant power was an ‘own motion’ power conferred on the Secretary.[112] Importantly, in Animals’ Angels, it was a third party (an animal welfare group) that had (unsuccessfully) moved the Court for an order to require the Secretary to the Department of Agriculture to take regulatory action against the holder of the export licence in question. As the Full Court in Yasmin later said, an implied duty to consider the exercise of a statutory power cannot be used as a mechanism by which ‘others’ [ie third parties] could ask the Court effectively to ensure that the repository of a power acts responsibly. The Full Court commented that such discretionary powers are not to be construed by reference to any assumption that the powers will be abused, or will not be exercised reasonably.[113]
[111]This notion derived from West Australian Field and Game Association v Minister of State for Conservation and Land Management and the Environment (1992) 8 WAR 64 at 86: see Animals’ Angels 181 [73]. However, the Western Australian case related to a Ministerial power of a quasi-legislative kind, namely a power to proclaim a game bird hunting season; it thus involved broad policy and political considerations; and it is therefore of little or no assistance in a context like the present.
[112]See Yasmin 191 [95].
[113]Ibid 191 [96].
The Full Court in Yasmin also commented on the abovementioned decision of the High Court in SZGUR,[114] being a decision on which the defendant in the present case also placed some reliance, particularly during oral submissions. The Full Court said:
The importance of the language in the individual statute is critical, as is its particular context. Indeed, in SZGUR the context of the inquisitorial function of the Refugee Review Tribunal under Pt 7 of the Migration Act was in large part what led the Court to determine there was no duty to consider whether to refer an applicant for a medical assessment, there also being no duty to make such a referral. The provisions in issue in SZGUR bear no resemblance to section 140 of the Sentencing Act, in language, context or purpose.
It may well be thought that that concluding comment is equally applicable to the present case.
[114](2011) 241 CLR 594.
In Yasmin, the Full Court noted that acceptance of the Attorney-General’s submissions would make the discretion under s 140 of the Sentencing Act, in effect, unreviewable in a certain sense, being a sense described as follows:[115]
If there is no duty to consider whether to exercise the power, as the respondent submits, then a petition can lie unattended and unexamined, or a deliberate decision can be made not to consider the exercise of the power. In all of these circumstances, the outcome is, in substance, the same for the person who seeks to have her or his conviction overturned as it would be if the Attorney-General decided not to refer the petition to the Court of Appeal.
The difference is that in the latter circumstance, the person would have at least some rights to judicial review in respect of that exercise of discretion.
Again, these observations have an echo here. The Secretary would, in effect, seek to make unreviewable by the courts both action and inaction under s 58E, whether for bad faith, illegality, legal unreasonableness, procedural unfairness, self-fettering or otherwise. That would be a radical and surprising result.
[115]Ibid 196 [114]–[115].
The Full Court in Yasmin quoted a passage from Wotton v Queensland[116] in which the plurality had referred to a fundamental principle of public law that had been explained in the following way by Dixon J in Shrimpton v The Commonwealth:[117]
[F]inality, in the sense of complete freedom from legal control, is a quality which cannot, I think, be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force. An exercise of a power, whether legislative or administrative, cannot rise higher than its source, viz., the power itself, and an attempt under the power to make unexaminable what is done in ostensible pursuance of a further delegation of authority must, to that extent, fail.
[116](2012) 246 CLR 1 at [23].
[117](1945) 69 CLR 613, 629–630.
Immediately after referring to these remarks of Dixon J, the Full Court proceeded:[118]
We see no basis to infer Parliament intended such a result might await a petitioner seeking to have her or his conviction quashed. The need to be able to correct a miscarriage of justice is a fundamental aspect of any system of criminal justice. It is more than a function performed to secure the interests of the individual who has been affected by the miscarriage of justice. It is integral to public confidence and the criminal justice system, and to ensuring the system operates fairly and within the law, while acknowledging that any system operates imperfectly and what is important is that there is always a capacity for correction.
In our opinion Parliament intends that the Attorney-General, whether personally or through delegates, will consider and determine what, if any, action should be taken in respect of each and every petition seeking an exercise of the mercy prerogative and whether or not a referral under s 140 of the Sentencing Act is expressly sought.
It might be said that these passages are distinguishable on the basis that s 58E of the Corrections Act 1986 is not concerned with rectifying miscarriages of justice. On the other hand, s 58E does relate to the length of sentences of imprisonment to be served by individuals. That is to say, the exercise of the power can affect the liberty of the subject, a fundamental common law value. Indeed, it would appear from a combined reading of s 58E and regs 100 and 109 that a grant of emergency management days is irreversible. The power under s 58E(1) is expressed to be a power to ‘reduce’ the length of a sentence of imprisonment or the length of a non-parole period (if one has been fixed in respect of the sentence). Subsection 58E(2) confirms that the power applies to ‘all’ sentences of imprisonment, including sentences for murder, regardless of when the sentence was imposed. The evidence in the present case indicates that the correctional authorities interpret s 58E such that, where a non-parole period has been fixed, a grant of emergency management days must be, or at least may be, applied to both the head sentence and the non-parole period. In any event, where a non-parole period has been fixed, it is clear from regulation 109(3) that emergency management days granted ‘must’ be deducted from the non-parole period. Hence, it may well be said that s 58E actually provides for the grant of rights to prisoners in respect of their liberty. That is hardly surprising. It has long been recognised in the law of sentencing that where the conditions of imprisonment will be particularly burdensome for the convicted person, the sentence should be shorter.[119] After sentence, however, the responsibility for making any due allowance falls to the Executive, rather than the sentencing court. Thus in a recent appeal against sentence,[120] the Court of Appeal (Niall JA and Croucher AJA) said:[121]
That the pandemic is likely to affect all prisoners in a similar way, not just Ms Wyka, is another reason in and of itself suggesting that this is a matter for the Executive, not this Court. For example, it may be that the Secretary to the Department of Justice and Community Safety, pursuant to s 58E(1) of the Corrections Act 1986 (Vic), will reduce the length of sentences or non-parole periods being served by any prisoner ‘on account of good behaviour while suffering disruption or deprivation … (a) during and emergency existing in the prison … or (b) in other circumstances of an unforeseen and special nature’. Plainly enough, the consequences for prisoners of the COVID-19 pandemic could be regarded as falling within s 58E(1). It is not this Court’s function, on appeal, to second-guess, double-up on or otherwise seek to make orders accommodating that or any other action that might be deemed fit to be taken by the Executive in response to the added hardship imposed on prisoners by reason of the COVID-19 pandemic.
[118](2015) 236 FCR 169 at 196–197 [117]–[118].
[119]Mirko Bargaric, Richard Edney and Theo Alexander, ‘(Particularly) Burdensome Prison Time Should Reduce Imprisonment Length – And Not Merely in Theory’ (2014) 38(2) Melbourne University Law Review 409.
[120]Wyka v The Queen [2020] VSCA 104.
[121]Ibid [162].
Plainly, then, the power conferred by s 58E is an important one. Consistently with this, s 58E occupies its own separate division within Part 8 of the Corrections Act 1986 and, likewise, reg 100 occupies its own Part within the Corrections Regulations 2019. These circumstances supply yet another basis for distinguishing the present case from SZGUR, in which the power in question was in the nature of an information-gathering power quite ancillary to the principal function of the Refugee Review Tribunal.
The defendant described the power conferred by s 58E as ‘managerial’. However, in my view, mainly for the reasons already stated, s 58E is quite different from the general provisions of the Corrections Act 1986 under which day-to-day management of prisons and prisoners takes place. Section 58E confers an important power that falls to be exercised in the special circumstances referred to in the section. Moreover, the s 58E power is directly vested in the Secretary, the head of the Department. This may be contrasted with s 21, which provides that the Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.[122] The fact that, under s 17 of the Act, the Secretary ‘has and may exercise all or any of the powers or functions of a Governor of a prison’ does not gainsay this distinction. The primary statutory responsibility of the Secretary is removed from the day-to-day running of prisons. Section 7 is headed ‘Functions of Secretary’. It simply provides:
The Secretary is responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders.
Again, the existence of the Secretary’s power of delegation does not mean that there is no significance in the fact that s 58E vests the relevant power in the Secretary.
[122]See and compare Moran v Secretary to the Department of Justice and Regulation (2015) 48 VR 119.
One might well think that the power conferred by s 58E is required to be administered in good faith, and in accordance with law and reason. If it is not, Parliament’s purpose will be defeated. Prisoners will not have an incentive to be of good behaviour during emergencies, in the way Parliament intended.
I note that the Secretary did not rely directly on any proposition that statutes and regulations relating to prisons are unenforceable at the suit of prisoners, a proposition that might have been advanced in former days,[123] but surely no longer. Thus, in 2016, in Clark v Commissioner for Corrective Services[124] Basten JA said:[125]
[123]See Flynn v The King (1949) 79 CLR 1.
[124][2016] NSWCA 186 at [5]–[11].
[125]Citations omitted. See also Bernard-Ross v State of NSW [2018] NSWSC 182, [45]; McKane v Commissioner of Corrective Services for New South Wales [2021] NSWSC 324, [55]–[56] (Walton J).
It is neither necessary nor appropriate to rehearse the history of the judicial control of conditions of imprisonment. Suffice to say that the remedies available to prisoners in the past derive from three broad principles. First, if the imprisonment were allegedly invalid and unlawful, a prisoner could seek relief by way of habeas corpus. Secondly, if the conditions of imprisonment led to injury to the prisoner, he or she could sue in negligence for breach of the duty of care owed by the custodians. Thirdly, and more recently, if the conditions were thought to interfere unreasonably with the ability of a prisoner to obtain access to the courts, or to conduct litigation, relief was available from the trial judge before whom such a complaint might be brought.
These forms of relief were separate and apart from the potential exercise of the Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW) and, before that legislative provision, by means of the prerogative writs. Broadly for two reasons, until about 40 years ago the supervisory jurisdiction was rarely engaged. The first was that the legislative and regulatory provisions governing the custody of prisoners were, by modern standards sparse, and imprecise in their effect. The second was that the courts were inclined to read regulations as conferring privileges or indulgences rather than rights, even where the continued liability to imprisonment was in issue. In Flynn v The King, Dixon J stated that statutory provisions providing for remission of sentence (and forfeiture of remission for misconduct) were concerned ‘only with the management and discipline of the gaols’. The judgment continued:
…if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice… Such a construction of the regulation-making power was plainly never intended by the legislature and should be avoided.
Over the last 40 years, social and judicial attitudes have changed. Both administrative efficiency and transparency have resulted in the regulation of prisons being defined in far greater detail, as may readily be seen by comparing the length and content of the Prisons Act 1952 (NSW) and the regulations thereunder, with the Crimes (Administration of Sentences) Act 1999 (NSW) (‘Administration Act’) and the regulations under that Act.
Nor was it only at the level of detail that the regulation of prisons and prisoners changed. The Administration Act reflects the principle that the punishment was being sent to gaol; offenders were not sent to gaol to be punished. Thus, s 2A of the Administration Act, setting out the objects of the Act, state the first object as being ‘to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment’. Although s 2A(3) provides that nothing in this section ‘can be taken into account in any civil proceedings’, it can properly be used to identify the underlying philosophy of the legislation.
The principled basis underlying the modern approach to judicial review of decisions affecting prisoners was discussed by Lord Reed speaking for the UK Supreme Court in Osborn v The Parole Board. (Osborn concerned the circumstances in which the common law accorded a prisoner a right to an oral hearing in relation to key decisions regarding release.)
Further, there has been a notable expansion in the scope of judicial review of administrative action. Limits on review are now defined by reference to the scope of the discretion given to the decision-maker, rather than by declaring particular areas of administrative action to be beyond judicial control. The focus is on the scope and exercise of the statutory power, rather than identifying the legal ‘right’ which has allegedly been infringed. There is also an expectation that decisions which may infringe on rights or interests be justifiable.
Bearing those factors in mind, the availability of judicial review of the conditions of custody must flow from a careful analysis of the statutory and regulatory scheme to which prisoners are subject.
What Basten JA said about the greater level of detail in correctional legislation in New South Wales is equally true of Victoria. The Corrections Act 1986 (as amended) and the Corrections Regulations 2019 are lengthy and highly detailed enactments. Corresponding with s 2A of the Crimes (Administration of Sentences) Act 1999 (NSW), to which Basten JA referred, the stated purposes of the Corrections Act 1986 include to provide for the ‘welfare of prisoners’. Further, the remarks of Basten JA were made without reference to any legislation in the nature of the Victorian Charter of Human Rights and Responsibilities Act 2006. It might well be thought that the considerations referred to by Basten JA would apply with even greater force in Victoria in the light of the Charter. I note that in her abovementioned judgment in Kheir v Secretary to the Department of Justice and Regulation,[126] Richards J recorded the Secretary as accepting that s 58E must be construed in accordance with s 32(1) of the Charter. As her Honour noted, s 32(1) requires that, where a provision has more than one meaning that is consistent with its purpose, the meaning to be preferred is the one that is most compatible with human rights. Her Honour said that it is arguable that s 58E engages the right to liberty and security of the person in s 21 of the Charter and the right to humane treatment in detention in s 22, and that construing s 58E as conferring both a power and a duty ‘best accords’ with those rights. On the other hand, her Honour recorded that the Secretary had submitted that neither right was engaged by s 58E and that the Secretary had provided a good deal of authority on that question alone. Like Richards J, I need not arrive at any concluded view about the applicability of the Charter. It would be inappropriate to do so in this case because neither side referred to it before me.[127]
[126][2019] VSC 76 at [21].
[127]At an earlier stage of this proceeding, Mr Dudley had referred to the Charter and, in consequence, Judicial Registrar Keith had made an order for Mr Dudley to give notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commissioner under s 35 of the Charter. It seems that no such notice was served. There was no reference to the Charter in any of the parties’ written or oral submissions that were ultimately relied on at the hearing.
Further, I cannot help noting that, over recent decades, this Court has dealt with a very large number of applications for judicial review, and applications for leave to commence an application for judicial review, in relation to both alleged action and alleged inaction on the part of prison authorities, made by prisoners on multifarious grounds.[128] As far as I am aware, it has not been suggested in any of those cases that the Court would refrain from granting an otherwise appropriate remedy on the basis that the correctional authorities would be under no duty to consider or reconsider the matter in question.[129]
[128]See, eg., my judgment in Knight v Sellman [2020] VSC 320 and the many cases of such a kind there referred to.
[129]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 would seem to present fundamental difficulties for the success of any such suggestion. See also my judgment in Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762, [85]–[113] and the cases there cited.
Finally, it may be that, at least in Victoria, there is an additional reason why no distinction should be drawn between allegedly unlawful (including legally unreasonable) action and allegedly unlawful (including legally unreasonable) inaction on the part of correctional authorities.[130] In 1989, the Full Court of this Court was prepared to accept (albeit with some hesitation) that, in rejecting a prisoner’s claim to be credited with remissions, the then Director-General of Corrections was a ‘tribunal’ and had made a ‘decision’ within the meaning of the Administrative Law Act 1978.[131] The definition of ‘decision’ in that Act includes ‘a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision’.[132]
[130]Cf Yasmin 197, [120]–[121].
[131]Re Nylander (Supreme Court of Victoria, Crocket, Marks and Southwell JJ, 7 June 1989) 1–3.
[132]Emphasis added.
However these things may be, the final resolution of the issue now raised by the Secretary will have to await some further case in which it is raised and needs to be decided.
Conclusion and orders
The proceeding will be dismissed.
Having regard to the fact that this proceeding owes its existence, at least in part, to the unfortunate situation which led to the non-receipt of Mr Dudley’s letters, and having regard to the ‘test case’ elements of the proceeding, and having regard to what I have said about the Secretary’s novel point, my provisional inclination is that there should be no order as to costs. However, I will reserve the costs and invite the practitioners for the parties to consult with each other as to whether an agreed position can be reached. If not, I will hear counsel as to costs in due course.
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