Garlett v Susan Rowley in Her Capacity as Assistant Commissioner Custodial Operations - [2021] WASC 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GARLETT -v- SUSAN ROWLEY IN HER CAPACITY AS ASSISTANT COMMISSIONER CUSTODIAL OPERATIONS [2021] WASC 120
CORAM:   ALLANSON J
HEARD:   23 APRIL 2021
DELIVERED          :   23 APRIL 2021
FILE NO/S:   CIV 1108 of 2021
BETWEEN:   PETER GARLETT
Applicant
AND
SUSAN ROWLEY IN HER CAPACITY AS ASSISTANT COMMISSIONER CUSTODIAL OPERATIONS
First Respondent
JAMES SCHILO IN HIS CAPACITY AS SUPERINTENDENT CASUARINA PRISON
Second Respondent
ADAM TOMISON IN HIS CAPACITY AS CHIEF EXECUTIVE OFFICER DEPARTMENT OF JUSTICE
Third Respondent

FILE NO/S: CIV 1109 of 2021
BETWEEN: TYRONE O'DRISCOLL
Applicant
AND
SUSAN ROWLEY IN HER CAPACITY AS ASSISTANT COMMISSIONER CUSTODIAL OPERATIONS
First Respondent
JAMES SCHILO IN HIS CAPACITY AS SUPERINTENDENT CASUARINA PRISON
Second Respondent
ADAM TOMISON IN HIS CAPACITY AS CHIEF EXECUTIVE OFFICER DEPARTMENT OF JUSTICE
Third Respondent

Catchwords:

Judicial review - Where applicants prisoners held in Special Handling Unit at Casuarina Prison - Where first respondent ordered placement of applicants in Special Handling Unit - Where CEO had power under regulations to determine prisoners to be confined in separate part of prison - Where CEO determined prisoners who may be considered to pose a major threat to the prison system as those who may be placed in Special Handling Unit and first respondent decided whether a particular prisoner poses a major threat to the prison system - Whether first respondent exercising power conferred on CEO

Judicial review - Where s 43 of Prisons Act provides for separate confinement for period limited to 30 days - Where Rules for placement in Special Handling Unit prescribe policy for separately confining prisoners who may be considered to pose a major threat to the prison system - Whether conditions of confinement in Special Handling Unit constitute separate confinement

Judicial review - Procedural fairness - Whether procedural fairness applies to decisions under rules for security, good order and management of prisons

Legislation:

Prisons Act 1981 (WA)
Prisons Regulations 1982 (WA)

Result:

Ground 1 upheld
Grounds 2 and 3 dismissed

Category: B

Representation:

CIV 1108 of 2021

Counsel:

Applicant	:	Mr P A Sheiner
First Respondent	:	Ms C J Thatcher SC
Second Respondent	:	Ms C J Thatcher SC
Third Respondent	:	Ms C J Thatcher SC

Solicitors:

Applicant	:	Roe Legal Services
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	State Solicitor for Western Australia
Third Respondent	:	State Solicitor for Western Australia

CIV 1109 of 2021

Counsel:

Applicant	:	Mr P A Sheiner
First Respondent	:	Ms C J Thatcher SC
Second Respondent	:	Ms C J Thatcher SC
Third Respondent	:	Ms C J Thatcher SC

Solicitors:

Applicant	:	Roe Legal Services
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	State Solicitor for Western Australia
Third Respondent	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Barreto v McMullan [2014] WASCA 152
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

ALLANSON J:

Introduction

The applicants, Peter Garlett and Tyrone O'Driscoll, are in custody at Casuarina Prison. They are held in a Special Handling Unit - a unit set aside for prisoners who are considered to pose a major threat to the prison system. It is not in question in these proceedings that each applicant is lawfully in custody. Each applicant challenges the decision by which he is confined in the Special Handling Unit.
On 13 November 2020, the first respondent made a decision in respect of each applicant in these terms:
Pursuant to Adult Custodial Rule 2, I hereby authorise the placement of [the applicant] into the Special Handling Unit at Casuarina Prison to maintain the security and control of the prison. This placement has been approved subject to a review after one month from the date of this document.
The applicants seek review of the decisions of 13 November 2020, which the applications characterise as decisions 'to separately confine [each] Applicant from other prisoners by placing him in the Special Handling Unit at Casuarina Prison'.
The applicants seek in relation to each decision:
1.a declaration that the decision is invalid and contrary to the Prisons Act 1981 (WA);
2.an injunction requiring the Respondents to release the Applicant from the Special Handling Unit;
3.such other orders as may be necessary to ensure the release of the Applicant from separate confinement.
Each application relies on the same grounds:
1.The First Respondent did not have any power to make the decision as any such power was only reposed by the Act and Regulations in the Third Respondent.
Particulars
a.The policy or order known as the SHU Procedures were not made by the Third Respondent as required by s 35 of the Act and therefore could not confer power on the First Respondent.
b.Any power conferred by Regulation 54C(1)(a)(ii) to make the decisions is required to be exercised by the Third Respondent personally.
2.The decision is invalid as;
a.it purports to separately confine the Applicant for more than 30 days contrary to s 43 of the Act; and
b.it was not notified to the Minister as required by s 43 of the Act.
3.In the alternative, the Applicant was not afforded procedural fairness which failure was a jurisdictional error.
Particulars
a.In response to submissions made by the Applicant by letter from his solicitor dated 13 November 2020, by letters dated 16 November and 20 November 2020 the First Respondent notified the Applicant by his solicitor that the order made under s 43 of the Act would or had expired on 17 November 2020 and no further order for separate confinement would be made.
b.The Applicant was not provided with a copy of Adult Custodial Rule 2 Placement of Prisoners in the Special Handling Unit (SHU Order).
c.The Applicant was not provided with a copy of the application for the decision made by the Second Respondent on 3 November 2020.
Ground 2 raises several questions: are the applicants confined pursuant to s 43; is s 43 (and the 30 day limitation) the only power to confine a prisoner separately; is the confinement 'separate confinement' within the meaning of s 43; in determining whether the confinement is separate confinement, does the court have regard to the legislative scheme, or to whether, in fact, the applicants have been subject to separate confinement.

The Evidence

Each applicant swore an affidavit, dated 22 February 2021. The applicants also relied on:
(1)five affidavits of Mark David Gregson, solicitor, sworn 23, 24 and 25 February 2021, and 29 and 30 March 2021;
(2)four affidavits filed on behalf of the respondents:
a.Michael John Walsh, Senior Prison Officer, sworn 24 March 2021;
b.Michael Peter Anderson, Superintendent - Operational Interface - affirmed 24 March 2021;
c.Glenn Hindle, Acting Senior Prison Officer, sworn 24 March 2021;
d.Yen Mong Chang, Principal Information Officer, Department of Justice, affirmed 24 March 2021.
Many of the documents adduced in evidence by the respondents were heavily redacted.

The Act and Regulations

In these reasons, unless stated otherwise, all references to legislation are to the Prisons Act 1981 (WA), and the Prisons Regulations 1982 (WA) made pursuant to s 110.

The Prisons Act

The Prisons Act is, by its long title, 'An Act to make provision for the establishment, management, control, and security of prisons, the custody and welfare of prisoners and for related matters …'
By s 7, subject to the Act and to the control of the Minister, the chief executive officer of the department principally assisting the Minister with the administration of the Act 'is responsible for the management, control, and security of all prisons and the welfare and safe custody of all prisoners'. Every prisoner is 'deemed for so long as he continues to be a prisoner to be in the custody of the chief executive officer'.[1]
[1] Section 16.
The Act provides for the appointment of officers and prison officers. Every officer is required to comply with the Act, regulations, rules and standing orders made under the Act, and with the orders and directions of the chief executive officer.[2]
[2] Section 12.
The chief executive officer may delegate to any person any power or duty of the chief executive officer under another provision of the Act other than s 9 or s 35.[3]
[3] Section 8.
Part V of the Act, s 35 to s 52, contains provisions for the management, control and security of prisons.
Section 35 is central to these applications so I will set it out in full:
(1)The chief executive officer may, with the approval of the Minister, make rules for the management, control and security of prisons generally or a specified prison and for the management, control, and security of prisoners and the management of officers of the Department.
(2)It is the intention that rules made under subsection (1) shall complement regulations made by the Governor under section 110 and if there exists any inconsistency between a rule made by the chief executive officer and a regulation made by the Governor, the rule shall, to the extent of such inconsistency, be read and have effect subject to the regulation.
(3)Rules made under this section may confer a discretionary authority on any person or class of persons.
(4)Rules made under this section may specify and regulate the privileges which may be extended to prisoners and may provide for the withdrawal of such privileges.
(5)The chief executive officer shall publish rules made under this section in such manner as he considers necessary to bring relevant rules to the attention of officers, persons visiting prisons and prisoners.
(6)The chief executive officer shall take reasonable steps to have rules made under this section, so far as they are relevant to prisoners, made known ‑
(a)to every prisoner who is illiterate; and
(b)in a language that he understands, to every prisoner who does not understand English.
Section 36 sets out the role of the superintendent of a prison, including that the superintendent is responsible to the chief executive officer for the good government, good order and security of a prison. The superintendent is empowered to issue orders to officers and to prisoners 'as are necessary for the good government, good order, and security of the prison of which he is superintendent'.[4] The superintendent is also empowered to issue standing orders with respect to the management and routine of their prison.[5] Standing orders are to be read and have effect subject to any rule or regulation.
[4] Section 36(3).
[5] Section 37.
Other sections in pt V provide for search and restraint of prisoners, the use of firearms, the use of force, and, by s 43, for the separate confinement of prisoners.
Section 43 provides:
(1)For the purpose of maintaining good government, good order or security in a prison, the chief executive officer may order, in writing, the separate confinement in prison of a prisoner for such period not exceeding 30 days as is specified in the order.
(2)The chief executive officer shall inform the Minister forthwith of every order made by him under subsection (1).
(3)Every cell used for the separate confinement of a prisoner under this section shall be of such a size and so ventilated and lighted that a prisoner may be confined in that cell without injury to health and every prisoner in separate confinement shall have the means of taking air and exercise for not less than one hour each day at such times and for such other periods as the chief executive officer may direct.[6]
[6] In his affidavit dated 24 March 2021, Peter Anderson, Superintendent-Operational Interface at Casuarina Prison said 'prisoners disciplined by confinement under sections 43 or 82 of the Prisons Act 1981 are isolated from contact with other prisoners': [28]. Section 82 provides for punishment by confinement in the prisoner's sleeping quarters or separate confinement in a punishment cell.
Part VI provides for visits and communications involving prisoners. The entitlement of a prisoner to visits is further regulated by reg 52 and reg 53.
There is separate provision in pt VII for prison offences, including the procedure for dealing with a charge of a prison offence and the penalties for offences. Penalties may include confinement in the prisoner's sleeping quarters for not more than 72 hours;[7] separate confinement in a punishment cell or the prisoner's sleeping quarters for not more than seven days, or not more than 21 days for more than one offence;[8] or, on conviction by a court of summary jurisdiction on an aggravated prison offence, separate confinement in a punishment cell for a period not exceeding 28 days.[9] A prisoner undergoing punishment of separate confinement in a punishment cell for a period exceeding seven days shall spend 48 hours out of the punishment cell after each period of seven days in separate confinement.[10] Section 82 provides for any penalty of confinement that the cell used for the confinement be so ventilated and lit to ensure no injury to the prisoner's health, and requires that every prisoner so confined 'shall have the means of taking air and exercise for not less than one hour each day'.[11]

The Prisons Regulations

[7] Section 77, on a charge of a minor prison offence determined by a superintendent.

[8] Section 78 - the penalty may be imposed by a visiting justice for a minor prison offence.

[9] Section 79.

[10] Section 78(3); s 79(1)(a)(iii).

[11] Regulation 68 requires a punishment cell to have been certified by the chief executive officer in writing is fit for the purpose of separate confinement.

Section 110 provides for the Governor to make regulations, including for 'making provision with respect to the good government, good order and security of prisons'. Section 110(1)(a) to (w) sets out specific matters that may be prescribed for giving effect to the purposes of the Act, including:
(f)regulating the custody, classification, separation, diet, instruction, health, employment, discipline, medical and other treatment of prisoners; and
(g)prescribing the specifications of cells and quarters for the confinement or punishment of prisoners and providing for certifying such cells and quarters as fit for the purpose;
By s 110(2)(a)(i), regulations may be made so as to apply 'generally or in a particular class of case or in classes of cases or to particular categories or classes of prisoner'. Regulations may confer a discretionary authority on a specified officer or other person or body.[12]
[12] Section 110(2)(c).
Part V of the regulations is headed, 'Prisoners ‑ management provisions'. Division 8 of pt V contains a single regulation, reg 54C:
(1)The chief executive officer may, where he is of the opinion that the management, control or security of a prison or of the prisoners therein requires ‑
(a)that prisoners of a particular category or description be confined in a separate part of the prison ‑
(i)by instrument in writing declare that a part of the prison specified in the instrument is set aside for the confinement of that particular category or description of prisoner;
(ii)from time to time determine the prisoners who shall be confined in that part of the prison; and
(iii)by order under section 35 of the Act make provision for the management, control, security and routine in that part of the prison and of the prisoners confined in that part;
(b)that special provision be made for prisoners of a particular category or description ‑
(i)by order under section 35 of the Act make provision for the management, control, security and routine of such prisoners; and
(ii)from time to time determine the prisoners to whom those provisions shall apply.
(2)The chief executive officer may by instrument in writing amend, or revoke a declaration under subregulation (1)(a)(i) or may revoke the declaration and substitute another declaration for it.
(3)Nothing in subregulation (1) affects the application of these regulations to any prisoner but, subject to that limitation, the provisions as to management, control, security and routine —
(a)applicable in a part of a prison set aside under subregulation (1)(a)(i) and to the prisoners confined in that part; or
(b)applicable under subregulation (1)(b) to prisoners of a particular category or description, may differ from those applicable in other parts or another part of the prison or to other prisoners or prisoners of another category or description.
The powers and functions under reg 54C, other than the power to make rules under s 35, are delegable. They have not been delegated. The power under reg 54C(1)(a)(ii) to determine which prisoners shall be confined in that part of the prison set aside for a particular category of prisoners remains in the hands of the chief executive officer.
Part VI provides for remand prisoners. By reg 57, prisoners on remand shall, so far as practicable and where the interests of security permit, be kept separate from sentenced prisoners.
Part VIII is headed 'Prison offences' but includes, in reg 72:
Whether chief executive officer orders the separate confinement of the prisoner under section 43 of the Act, the separate confinement shall (subject to that provision) be undergone in the cell and for the period specified in the order and shall be subject to the regimen set down in the order.

Adult Custodial Rule 2

Adult Custodial Rule 2 is expressed to be made by the chief executive office pursuant to s 35 of the Act. The current version is dated 8 June 2011, approved by the Minister on 2 July 2011, and effective from 18 July 2011.
Adult Custodial Rule 2 is marked as 'Restricted - Staff only'. I return later in these reasons to the obligation under s 35 to publish rules made under that section.
Rule 2 states:
This Policy provides for the separate custody and management of prisoners that pose a major threat to the prison system.
Rule 5 is headed Policy, and provides:
It is the Policy of the Department of Corrective Services that prisoners who pose a major threat to the prison system will be confined separately from, and where appropriate managed differently to, other prisoners for so long as they continue to be regarded as posing that level of threat.
The policy 'is to be implemented by the Adult Custodial Division'.[13]
[13] Rule 3.
Rule 4 provides a definition of 'major threat to the prison system' which, relevantly, includes 'a significant and ongoing risk … to the security or good order of a prison or prisons …'.
By r 5.1, the chief executive officer declared, in accordance with reg 54C(1)(a)(i), that specified cells at Casuarina Prison are set aside as a Special Handling Unit 'for the confinement of prisoners who pose a major threat to the prison system'.[14] Part of the policy was redacted, apparently for security reasons. I think it proper to note, however, that the declared area is described as a secure unit. The evidence at trial was that the unit has two wings, each with eight cells. It has a separate entrance, separate exercise areas, and separate visitor areas. The cells are for a single person.
[14] Special Handling Unit is often abbreviated to SHU. I have used the acronym when referring to the SHU Procedures and the SHU Management Committee, and when quoting from documents and submissions.

Rule 5.2 describes prisoners (those considered to pose a major threat to the prison system) who may be placed in the Special Handling Unit. It sets out nine matters which may lead to a prisoner being so considered. The most general factors, and those apparently relied on in relation to the applicants, are the commission or demonstrated intention to commit 'serious incidence [sic] of violence within the prison system' and being a 'serious threat to the good order of a prison'.
By r 5.3, the Assistant Commissioner Custodial Operations 'shall establish and maintain Procedures consistent with this policy and Regulation 54C'. The SHU Procedures are required to address matters including the requirement for referrals, the management regime/routine, the makeup and role of the Special Handling Unit Management Committee, and review of a prisoner's placement.
Rule 5.3 does not purport to confer on the holder of that office any authority to order that any particular prisoner or category of prisoners be confined separately. The policy of separate custody of those categories of prisoners specified in r 5.2 is to be implemented by officers - but no person is given the power to decide whether a particular prisoner comes within the category of prisoners in r 5.2.

The SHU Procedures

The SHU Procedures appear as Appendix 1 to Adult Custodial Rule 2. The SHU Procedures are signed as approved by the Assistant Commissioner Custodial Operations pursuant to Adult Custodial Rule 2.
The respondents submit, in my opinion correctly, that the SHU Procedures are not themselves rules made in the exercise of the power under s 35.
Adult Custodial Rule 2, r 5.3, does not purport to adopt or incorporate the SHU Procedures. It requires (and, by implication, authorises) the Assistant Commissioner Custodial Operations to establish and maintain SHU Procedures addressing specified matters.
By cl 2 of the SHU Procedures:
This document provides clearly defined procedures governing the separate management of prisoners that pose a major threat to the prison system.
Clause 5 provides for referrals (requests for placement), assessment, the SHU Management Committee, the regime for prisoners (set out in Appendix 02), review of placement, and use of the West side of the Special Handling Unit.
The opening paragraph of cl 5 provides:
These Procedures complement Adult Custodial Rule 2
These procedures refer to prisoners who were placed in the SHU as a result only of a SHU Order made under regulation 54C… The procedures do not relate to prisoners who may be accommodated in the SHU under other provisions… (emphasis added)
Regulation 54C does not, in its terms, provide for an order pursuant to which a prisoner may be placed in the Special Handling Unit. It provides for the chief executive officer, by instrument, to set aside a specified part of the prison; to determine the prisoners who shall be confined in that part of the prison; and by order under s 35 to make provision for the management, control, security and routine in that part of the prison.
Clause 5.1.1 provides:
If a designated Superintendent… is of the opinion that a prisoner within their prison meets the criteria in section 5.2 they may request the Assistant Commissioner Custodial Operations to consider placement of the prisoner in the Special Handling Unit …
Clause 5.1.2 requires the Superintendent, prior to transferring the prisoner to Casuarina Prison, to forward specified documentation, including a memorandum stating the basis for the request, copies of all incident reports, conduct reports and other material that supports the placement, and other material relating to the prisoner including their current management plan and information relating to their health.
The Assistant Commissioner Custodial Operations conducts an assessment of the prisoner and approves or rejects the placement based on the assessment from the requesting Superintendent and Justice Intelligence Service.[15] Clause 5.2.4 provides:
The Assistant Commissioner Custodial Operations is to advise the Deputy Commissioner Adult Custodial and Commissioner of each SHU placement or revocation. (Notification to the Minister will be in accordance with Policy Directive 41).[16]
[15] Clause 5.2.
[16] The Policy Directive was not in evidence and I can draw no inference from the reference to notifying the Minister.
Clause 5.3 provides for the Constitution and role of the SHU Management Committee. The committee is required to meet at regular intervals of no more than 28 days to review and recommend continued placement or otherwise of each prisoner in the Special Handling Unit and provide recommendations to the Assistant Commissioner Custodial Operations. The committee is required to ensure that prisoners are given the opportunity to provide their views for their ongoing management 'in person at the meeting and if the prisoner declines to engage, to record that fact in the minutes'. There is a corresponding provision in cl 5.4.6 for all Special Handling Unit prisoners to attend the committee meetings.
The committee is required to assess each prisoner's progress, make a recommendation to the Assistant Commissioner Custodial Operations regarding the prisoner's continued placement, ensure each prisoner's Case Management Report is completed in a timely manner, and provide each prisoner with a signed copy of their monthly report.[17]
[17] Clause 5.3.
Clause 5.4 provides for matters including the regime to which prisoners will be subject while in the Special Handling Unit. The Standard Regime is Appendix 02 to the Rule.
In supplementary submissions filed after the hearing, by leave, the respondents submitted that the SHU Procedures do not alter the content of Adult Custodial Rule 2, or the categories of prisoners who may be placed in the Special Handling Unit. They submitted that, by r 3, the policy is to be implemented by the Adult Custodial Division. The respondents submitted that the SHU Procedures are an exercise of a discretionary authority conferred by r 5.3 to implement the requirements of the Rule by establishing and maintaining 'SHU Procedures consistent with this policy and Regulation 54C', pursuant to which offices of the Adult Custodial Division will implement the Rule.

The Special Handling Unit regime

The regimes for prisoners placed in the Special Handling Unit and those separately confined pursuant to s 43 are not identical.
Relevantly, for a prisoner the regime for a prisoner confined in the Special Handling Unit provided:
(1)exercise and out of cell hours were to be taken within the confines of the Unit;
(2)a prisoner may exercise with other prisoners in the Special Handling Unit at the discretion of the Officer in Charge;
(3)the time out of cell is to be 'maximised so far as is practicable' but should not be less than three hours a day;
(4)'limited association' with other prisoners during work, leisure and educational activities at the discretion of the Officer in Charge;
(5)meals to be eaten in the cell or communal dining 'at the discretion of the [Officer in Charge]';
(6)contact visits permitted two hours a week 'unless otherwise directed by the Superintendent', with all visits under supervision in a designated area;
(7)religious visits only within the confines of the Special Handling Unit;
(8)medical access, where practical, within the Special Handling Unit or under close supervision;
(9)work within the confines of the Special Handling Unit.
The evidence at trial was that the regime, in particular time out of cell, was not always adhered to. I set that out in more detail below.
The Confinement Regime Rules for each applicant while subject to separate confinement under s 43 provided for exercise for a minimum of one hour a day, alone; meals in cell; and no work.[18] The Regime for Mr O'Driscoll permitted only non-contact visits.

The delegation

[18] Affidavit of Yen Mong Chang affirmed 24 March 2021, YMC-6; YMC-8.

By an instrument of delegation, dated 23 February 2015, the chief executive office delegated a range of functions under the Act and regulations to the Assistant Commissioner Custodial Operations. Relevantly, the delegations include the powers and functions under s 43, but not those under reg 54C.
The power under s 35 is not delegable.

Factual background

Mr Garlett is a sentenced prisoner; Mr O'Driscoll is being held on remand awaiting trial.
The Special Handling Unit has two wings, each containing eight cells. Two of the cells have their own dedicated exercise yard.[19] Prisoners held in the Special Handling Unit are restricted to the unit.[20] Mr Anderson deposed that the role of the Special Handling Unit is to manage prisoners 'who pose a major threat to the prison system and are isolated from the general population for the good order and security of prisons'.[21]
[19] Affidavit of Michael John Walsh sworn 24 March 2021 [33].
[20] Affidavit of Michael John Walsh sworn 24 March 2021 [9].
[21] Affidavit of Peter Anderson affirmed 24 March 2021 [30].
On 19 October 2020, the first respondent, the Assistant Commissioner Custodial Operations, made an order in respect of each applicant, pursuant to s 43 of the Prisons Act, requiring that the applicant be separately confined for a period of 30 days (to end on 17 November 2020). The ostensible reason for the order was threat to the good order of the prison.[22] The period of separate confinement pursuant to s 43 was in the Special Handling Unit.[23]
[22] The respondent has extensively redacted documents, and it is possible to refer only to that information which remains.
[23] See affidavit of Yen Mong Chang affirmed 24 March 2021, YMC-15, YMC-16. The evidence of Mr Anderson, however, was that prisoners subject to s 43 would generally be held in the Multi-Purpose Unit: [40].
On 13 November 2020, on the application of the Superintendent Casuarina Prison, the first respondent made the further decision for each applicant to be placed in the Special Handling Unit.[24]
[24] First affidavit of Mark David Gregson sworn 23 February 2021, MDG-14.
On 17 November 2020, the separate confinement orders expired.
The applicants' placement in the Special Handling Unit has continued now for more than four months. Although the placement was approved 'subject to review after one month', there is no evidence of any review in December 2020.
Placement in the Special Handling Unit is reviewed monthly by the SHU Management Committee.[25] The committee met on 25 November 2020.[26] Mr Anderson deposed that the committee meeting for 30 December 2020 was rescheduled to 23 December 2020 to meet the availability of attendees.[27] The minutes of the SHU Management Committee meeting of 27 January 2021, however, record the previous meeting was that on 25 November 2020.[28]
[25] Adult Custodial Rule 2, Procedures cl 5.3.
[26] First Affidavit of Mark David Gregson sworn 23 February 2021, MDG-14.
[27] Affidavit of Peter Anderson affirmed 24 March 2021 [68].
[28] Affidavit of Yen Mong Chang affirmed 24 March 2021, YMC-19.
Later in these reasons, I set out the regime for prisoners in the Special Handling Unit. That document is not dated, although Adult Custodial Rule 2 and the SHU Procedures are dated in 2011.
Currently, the increase in prison numbers in the Special Handling Unit 'has placed stressors on the ability to provide the type of environment the SHU was designed for'.[29] Previously, recreation with other prisoners was facilitated and prisoners were unlocked and together for recreation for the majority of the scheduled day.[30] Currently, the 'intention' is that each applicant access three hours of exercise and recreation a day.
[29] Affidavit of Peter Anderson affirmed 24 March 2021 [32].
[30] Affidavit of Peter Anderson affirmed 24 March 2021 [33].
But that exercise and recreation time, and whether a prisoner can exercise with other prisoners, is affected by a range of factors. Mr Walsh referred to several: the presence of contractors on the wings; visits by an official visitor, inspector, or staff of the Aboriginal Visitor Scheme; a lockdown to enable staff to attend an incident elsewhere in the prison; short staffing on a particular day; the number of prisoners being held in the Special Handling Unit at the time and which prisoners can take their recreation at the same time as others.[31]
[31] Affidavit of Michael John Walsh sworn 24 March 2021 [19] - [27]; see also the affidavit of Glenn Hindle sworn 24 March 2021 [19] - [23].
Mr Walsh said that it was possible for a prisoner to be unable to leave his cell on a particular day.[32] He estimated that 'on average, each SHU Prisoner has between one or two hours of Recreation Time each day, at least'.[33] Mr Hindle estimated that prisoners in the Special Handling Unit got their planned three hours of recreation time about 50% of the time.[34]
[32] Affidavit of Michael John Walsh sworn 24 March 2021 [31].
[33] Affidavit of Michael John Walsh sworn 24 March 2021 [38].
[34] Affidavit of Glenn Hindle sworn 24 March 2021 [28]. Mr Hindle estimated that the other 50% of the time, prisoners in the Special Handling Unit have between two to three hours of Recreation Time.
The evidence from the prison records is that each applicant frequently spent more than 21 hours in a day in his cell. The evidence does not extend past 21 February 2021. The respondents' evidence is that, in the initial period in the Special Handling Unit, the applicants refused to leave their cells for exercise. There is, however, reasonable information in the records for the period from 6 December 2020 and 21 February 2021. During that period:
(1)there was only one day when Mr O'Driscoll was recorded as out of his cell for three hours or more, and days when he was out of his cell for less than two hours were frequent;
(2)Mr Garlett was recorded as out of his cell for three hours or more on 32 days[35] - a little less than half of the total days - and there were also days when he was out for two hours or more.
[35] I have included days recorded as 175 minutes or more.
During the period from 4 December 2020 to 21 February 2021, the Special Handling Unit Occurrence Book records the explanation (identically worded) on many occasions that the applicants (or one of them) was 'provided less than 3 hours out of cell as a result of the SHU scheduled day being unable to accommodate the number of exercise periods required to effectively manage the risk between individual prisoners in accordance with their SHU management plan'.[36] That statement is recorded 34 times in the Offender Notes for Mr Garlett and 45 times for Mr O'Driscoll between 1 January and 22 February 2021.[37]
[36] Affidavit of Yen Mong Chang affirmed 24 March 2021, YMC-18.
[37] Affidavit of Yen Mong Chang affirmed 24 March 2021, YMC-3, YMC-4.
When out of his cell, Mr O'Driscoll is permitted to interact and socialise with two other prisoners, and his exercise and out of cell time is scheduled at the same time as theirs. Mr Garlett is permitted to socialise with only one other prisoner.[38]
[38] Affidavit of Peter Anderson affirmed 24 March 2021 [52] - [57].
Prisoners in the Special Handling Unit can also speak to each other through the walls and cell door hatches.[39]
[39] Affidavit of Glenn Hindle sworn 24 March 2021 [56].
Mr Anderson said that both applicants are employed as 'SHU workers'.[40] Mr Walsh deposed that the applicants complete general cleaning duties while out of their cells, but said that might be included in the three hours spent out of the cell.[41]
[40] Affidavit of Peter Anderson affirmed 24 March 2021 [66].
[41] Affidavit of Michael John Walsh sworn 24 March 2021 [15], [36].
Meals are not eaten in a communal area, but in the cell.[42]
[42] Affidavit of Peter Anderson affirmed 24 March 2021 [65].
Showering was in the cell and not in a shower block. Programs for rehabilitation are unavailable because they are group based.[43]
[43] Affidavit of Peter Anderson affirmed 24 March 2021 [66].
The respondents also led evidence regarding the materials (including televisions and radios) that prisoners were permitted in their cells, educational materials, and access to medical facilities. I have not set that evidence out in detail because the question before me is whether the regime to which they were subject amounts to separate confinement. Except to the extent it bears on that question, the conditions under which the applicants were confined is not relevant. Further, it was not possible, on the evidence presented, to compare those elements of the regime in the Special Handling Unit to that in the general prison population.
Similarly, I have not set out the evidence of the applicants regarding the conduct of prison officers, to the extent that it does not bear on the questions that require determination.
The evidence included minutes of two meetings of the Special Handling Unit Committee, in January and February 2021. On each occasion no action was recommended in relation the applicants, and 'future benchmarks for SHU discharge' were recorded as 'TBA'.[44]
[44] See, for example, affidavit of Yen Mong Chang affirmed 24 March 2021, YMC-20, page 344.

The grounds of review

Ground 1 ‑ who has power to order confinement in the Special Handling Unit

The applicants contend that the Assistant Commissioner Custodial Operations did not have any power to make the decision to authorise their placement in the Special Handling Unit as any such power was only reposed by the Act and Regulations in the chief executive officer. The SHU Procedures were not made by the chief executive officer, and could not confer power on the Assistant Commissioner Custodial Operations.
That ground, read with the particulars, confuses several discrete matters:
(1)the decision to authorise placement in the Special Handling Unit;
(2)the power to make rules under s 35 for the management, control, security and routine in a part of the prison set apart under reg 54C(1)(a)(i) and of the prisoners confined in that part of the prison; and
(3)the powers under reg 54C to determine the prisoners who shall be confined in a part of the prison so set apart.
The applicants' primary contention is that the SHU Procedures are not orders under s 35 of the Act because they were made by the Assistant Commissioner Custodial Operations, and not by the chief executive officer personally. The SHU Procedures therefore did not confer any power on the Assistant Commissioner Custodial Operations to make the decisions under review.
The respondents submitted, in my opinion correctly, that Adult Custodial Rule 2 was made by the chief executive officer and approved by the Minister as required by s 35. Adult Custodial Rule 2 is, in substance, 'for the management, control and security of prisons generally … and for the management, control, and security of prisoners'.
The respondents further submitted that the SHU Procedures are not themselves a rule made under s 35, and are not required to be made by the chief executive officer. The submission should be accepted, to the extent that the SHU Procedures are procedures by which the policy and content of Adult Custodial Rule are implemented.
But the respondents' argument does not identify the source of the power to determine that a particular prisoner should be placed into the Special Handling Unit (or some other part of a prison set aside for categories of prisoner).
First, the respondents submitted that, if the chief executive officer were required to make decisions to place prisoners in the Special Handling Unit personally, the chief executive officer would have to make a rule under s 35 that applies to a particular prisoner.[45] The submission has a basic flaw: the decision to place a prisoner in a special unit need not be made by a rule. The power to determine from time to time the prisoners who are to be confined in a separate unit is conferred on the chief executive officer by reg 54C(1)(a)(ii). The placement of a particular prisoner is directly authorised by the regulations and does not have to be implemented by a rule.[46]
[45] Respondents' written submissions [46].
[46] Cf. reg 54C(1)(a)(iii).

The respondents' construction of Adult Custodial Rule 2 is that it constitutes a rule by the chief executive officer that prisoners 'who are considered to pose a major threat to the prison system' may be placed in the Special Handling Unit. The decision that a particular prisoner should be so considered is merely procedural and an 'implementation' of the rule, and requires no further authority. The Assistant Commissioner Custodial Operations was required to comply with Adult Custodial Rule 2 and did so by making the decisions in accordance with the Rule.
The flaw in the submission is that Adult Custodial Rule 2 is intended to complement regulations and, if there is any inconsistency between a rule and a regulation, the rule is to be read and have effect subject to the regulation.[47] Regulation 54C(1)(a) has several elements: first the formation of the opinion by the chief executive officer that the management, control or security of a prison or of the prisoners therein requires that prisoners of a particular category or description be confined in a separate part of the prison; second, the making of an instrument specifying that part of the prison be set aside for the confinement of that particular category or description of prisoner; third, the determination from time to time of the prisoners who shall be confined in that part; and fourth, the making of rules under s 35 for the management, control, security and routine in that part of the prison.
[47] Section 35(2).
The third element does not refer to a category or description of prisoners. As a matter of construction, it remains for the chief executive officer to determine from time to time the prisoners who shall be confined. Adult Custodial Rule 2 must be read subject to the regulation.
The respondents further submitted that a rule under s 35 may confer a discretionary authority on a person or class of persons,[48] and that by providing that prisoners within the scope of r 5.2 may be placed in the Special Handling Unit, the Rule confers a discretionary authority on officers who are required to implement the policy to place prisoners within the unit.
[48] Section 35(3).
Where a discretionary authority is conferred by a written law, it is generally necessary to specify the person, or class of persons, on whom that authority has been conferred. But, Adult Custodial Rule 2 does not, by its words, purport to confer the authority to determine who should be separately confined on any person or class of persons. Further, it would be inconsistent with reg 54C(1)(a)(ii) to read the Rule in the way argued for by the respondents.
Despite the confusion apparent in ground 1, the underlying contention in the second particular of ground 1 is, in my opinion, correct: the power conferred by reg 54C(1)(a)(ii) to make the decisions to place the respondents in the Special Handling Unit has not been delegated. It had to be exercised by the chief executive officer personally. The SHU Procedures made by the Assistant Commissioner Custodial Operations do not (and could not) confer power to determine the prisoners who shall, from time to time, be confined in that part of the prison set aside as a Special Handling Unit.
I would uphold ground 1.

Ground 2 ‑ Is confinement in the Special Handling Unit separate confinement

Ground 2 is premised on a finding that confinement in the Special Handling Unit is separate confinement within the meaning of s 43, and is subject to the limitations imposed by that section.
The term 'separate confinement' is not defined in either the Act or the Regulations. It cannot be intended to include any separation of prisoners, as there is express power to make regulations for the separation of prisoners.
The words of s 43 use 'separate' as an adjective to modify the noun 'confinement'.
The Macquarie Dictionary gives four meanings for separate as an adjective.
•unconnected or distinct: two separate questions.
•being or standing apart; cut off from access: separate houses.
•existing or maintained independently: separate organisations.
•individual or particular: each separate item.
The term 'separate confinement' is also used in reference to separate confinement in a punishment cell. A prisoner may also, as a punishment, be confined in their sleeping quarters, but that is not described as separate confinement.
Whether under s 43, or as punishment, the Act prescribes minimum conditions for prisoners 'separately confined': as to size, ventilation and lighting of the cell;[49] the means of taking air and exercise for not less than one hour each day;[50] the requirement for 48 hours out of a punishment cell after each period of seven days;[51] and the giving of close medical supervision.[52]
[49] Section 43(3), s 82.
[50] Section 43(3), s 82.
[51] Section 78(3), s 79(1).
[52] Section 95B.
Although the Act does not refer to an individual prisoner being confined separately from all other prisoners, the requirements of s 43(3) (and the provisions regarding punishment cells) sufficiently demonstrate an intention that it is confinement of an individual prisoner in a cell in which the confinement is apart from, or cut off from access to, others. It is something different from the regime intended by reg 54C, in which parts of the prison are specified for the confinement of particular categories or descriptions of prisoner, but not the separate confinement of an individual.
The reference in Adult Custodial Rule 2 to the policy of prisoners being 'confined separately' should also be read as a reference to the category of prisoners dealt with by that rule being confined and managed separately from the general prison population, not the separate confinement of an individual prisoner.
It may be that, in practice, the conditions in which a particular prisoner is kept may amount to separate confinement. But that was not the case for the applicants, each of whom had access, although limited, to contact and recreation with others.
The conditions in which each applicant was kept, with many days in which they were unable to enjoy not less than three hours out of their cells, suggests that the regime intended by Adult Custodial Rule 2 is not being maintained in fact. But that is not sufficient to make the regime one of separate confinement. These reasons are not concerned with the conditions of confinement generally, but only with the grounds raised by the application for review and the validity of the decisions made on 13 November 2020.
For these reasons, I would dismiss ground 2.

Ground 3 - procedural fairness

Ground 3 is framed on the assumption that the challenged decisions of 13 November 2020 were made pursuant to Adult Custodial Rule 2, on the applications of the second respondent (the Superintendent of Casuarina Prison) on 3 and 4 November 2020. The applicants contend that they were not provided with a copy of the Adult Custodial Rule 2 or the application (and, by implication) were given no opportunity to be heard.
The content of the obligation to afford procedural fairness depends on the particular statutory framework; 'the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires'.[53]
[53] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26].And see Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 ‑ 585; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 504.
Decisions with regard to management of prisons are not unreviewable. But the authorities clearly state the limits within that review must be conducted. In Barreto v McMullan, Buss P said (in the context of review of the decision of a superintendent of a prison under s 36) that the Act evinced an intention that the rules of procedural fairness should not apply, 'at least in connection with decisions involving the management or supervision of prisoners as distinct from punitive or disciplinary action against prisoners'.[54]
[54] Barreto v McMullan [2014] WASCA 152 [185].
While his Honour was addressing a different power, some of the factors to which he referred are common to the present decision: the practical context in which the decision to exercise the power may be made to ensure the welfare, safe custody, or supervision of prisoners and the security, good order or management of the prison; the fundamental importance of objectives of good order, management and security; the inconvenience in the day to day management and control of a prison in requiring procedural fairness in management decisions; the loss of rights and privileges that attend a person being subject to a term of imprisonment; and the detailed scheme within the Act for dealing with punitive and disciplinary matters.[55]
[55] Barretov McMullan [186] - [190].
Consideration of the specific procedure prescribed by reg 54C and Adult Custodial Rule 2 discloses:
(1)a decision to provide for the separate custody of a prisoner or prisoners is not disciplinary or punitive, in the sense that it is a response to perceived threat to the prison system, and is not dependent upon the prisoner being convicted of or charged with an offence;
(2)the procedure provides for a referral by a superintendent who is of the opinion that the prisoner meets specified criteria;[56]
(3)the SHU Procedures specify the material to be forwarded with a referral, including the basis for the request, but also the current management plan, a mental health status report (if any) and current medical report;[57]
(4)the Assistant Commissioner Custodial Operations is to approve or reject the placement 'based on the assessment from the requesting Superintendent and JIS [Justice Intelligence Service]';[58]
(5)the placement of any prisoner is subject to regular review, at intervals of no more than 28 days, by the SHU Management Committee, which is to review each prisoner's progress and make a recommendation to the Assistant Commissioner Custodial Operations regarding the continued placement;[59]
(6)the SHU Management Committee is to 'ensure that prisoners are given the opportunity to provide their views … in person at the meeting and if the prisoner declines to engage, to record that fact in the minutes'.[60]
[56] Procedures cl 5.1.1.
[57] Procedures cl 5.1.2.
[58] Procedures cl 5.2.2.
[59] Procedures cl 5.3.3.
[60] Procedures cl 5.3.2. See also cl 5.4.6 by which all SHU prisoners 'are to attend' SHU Management Committee meetings.
Those provisions set out a scheme directed not to punishment but to the security, good order or management of the prison. They specify the material on which the relevant decision is to be based. Further, they expressly provide for monthly review at which there is an obligation to give a prisoner the opportunity to be heard in person.
Taking those matters into account, I am not satisfied that the decision to approve a placement, on referral from the Superintendent of the relevant prison, is conditioned by a requirement of procedural fairness with the content alleged.
There were some further matters that emerged in the hearing.
First, Adult Custodial Rule 2, under which the decision was made, is restricted to staff only and not provided to the prisoners. Section 35 provides:
(5)The chief executive officer shall publish rules made under this section in such manner as he considers necessary to bring relevant rules to the attention of officers, persons visiting prisons and prisoners.
(6)The chief executive officer shall take reasonable steps to have rules made under this section, so far as they are relevant to prisoners, made known ‑
(a)to every prisoner who is illiterate; and
(b)in a language that he understands, to every prisoner who does not understand English.
The applicants submitted that s 35 thus imposes a duty to publish the whole of the Rule to prisoners. The submission does not have proper regard to the qualification in both subsections, that the requirement to publish is as to 'relevant rules' or 'so far as they are relevant to prisoners'. That is, the chief executive officer may determine which rules are to be brought to the attention of prisoners, either by publishing them or by some other means.
Clause 5.4 of the SHU Procedures specifically provides for all Special Handling Unit prisoners to be informed of any special provisions that apply to them and to be given a copy of the 'SHU regime' (although I note that documents is also marked 'Restricted ‑ Staff only'). The failure to provide the whole of the Rule to the prisoners is not, itself, a failure to comply with s 35.
Second, the respondents adduced evidence that prisoners 'cannot' attend SHU Committee Meetings, apparently due to the discussion of confidential matters.[61] The applicants did not seek to expand their applications to challenge any subsequent failure by the SHU Management Committee to follow the mandated SHU Procedures.
[61] Affidavit of Peter Anderson, affirmed 24 March 2021 [69].
In any event, the obligation to afford procedural fairness in making a decision is complete when the decision is made.[62] Because the challenged decision is that of 13 November 2020, it is not necessary for me to make any determination regarding failures which occurred after that decision and which do not affect the lawfulness of the decision.
[62] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 [22].
For those reasons I would dismiss ground 3.

Conclusion

I would uphold ground 1, but not the other grounds. I will hear the parties as to the relief that should follow from that finding.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
23 APRIL 2021