Hamzy v Commissioner of Corrective Services and the State of NSW

[2020] NSWSC 414

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hamzy v Commissioner of Corrective Services and the State of NSW [2020] NSWSC 414

Hearing dates:

14 and 15 October 2019

Date of orders:

22 April 2020

Decision date:

22 April 2020

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   Proceedings 2016/276127 are dismissed.

 

(2)   Proceedings 2016/276186 are dismissed.

 

(3)   Proceedings 2017/177196 are dismissed.

 

(4)   Proceedings 2018/41479 are dismissed.

 

(5)   The question of costs in all proceedings is reserved.

 

(6)   Absent agreement being reached as to costs:

 

(a)   the plaintiff is to file written submissions with my Associate, not exceeding three pages in length, by 1 May 2020.

 (b)   the defendant is to file written submissions in reply with my Associate, not exceeding three pages in length, by 8 May 2020.

Catchwords:

Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant requiring legal practitioners to undergo criminal records enquiry as part of the approval process to visit high risk restricted inmates – Whether decision unlawful – Whether decision unreasonable – Whether decision infringed or removed the right of a high risk inmate to choose a legal practitioner

 

Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to decision of the defendant to deny the plaintiff access to AVL facilities for the purposes of conferring with his legal representative – Where the defendant took into account the fact that conversations over AVL could not be monitored – Where defendant also took into account the security risk which would arise if the plaintiff were granted access – Whether defendant’s decision was unreasonable

 

Administrative Law – Judicial Review – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Challenge to the practice of the defendant to permit limited monitoring of calls between the plaintiff and his legal representative – Whether such a practice unlawful – Whether such a practice amounted to an impermissible intrusion into legal professional privilege

 

Statutory interpretation – Prison legislation – General principles applicable to the interpretation of such legislation – General reluctance of Courts to interfere in matters of prison administration – Necessity to recognise the difficulty of the task of managing prisons – General recognition of Parliament’s intention to give those responsible for the management of prisons a broad discretion commensurate with their task

 

Human Rights Law – Where plaintiff a high risk restricted inmate in a correctional facility administered by the defendant – Where defendant required that communications to which the plaintiff was party during visits in custody be in English – Where plaintiff asserted a right to be able to speak Arabic – Whether the right to freedom of expression encompassed a right of the plaintiff to be able to speak in the language of his choice – Whether provisions of the regulations pursuant to which the defendant acted in requiring that conversations be conducted in English were invalid constitutionally or otherwise

  Words and phrases – “in English” – “based on”

Legislation Cited:

Commonwealth of Australia Constitution Act
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
International Convention on the Elimination of All Forms of Racial Discrimination
International Covenant on Civil and Political Rights
Racial Discrimination Act 1975 (Cth)
Surveillance Devices Act 2007 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)

Cases Cited:

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1
Allitt v Sullivan [1988] VR 621
ALRM v South Australia (1995) 64 SASR 551
Anderson v Pavic [2005] VSCA 244
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Australian Medical Council v Wilson and ors. (1996) 137 ALR 653
Ballantyne v Canada Communication Nos 359/1989, 385/1989; 31 March 1993
Bromley London Borough Council v Greater London Council [1983] 1 AC 768
Bryson v NSW Bar Association [2003] NSWADTAP 29
Clark v Commissioner for Corrective Services [2016] NSWCA 186
Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143
Conyngham v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423
Flynn v R (1949) 79 CLR 1; [1949] HCA 38
Fryske Nasjonale Partij v Netherlands (1985) 9 EHRR 240
Fyfe v State of South Australia [2000] SASC 84
Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11
Guesdon v France Communication No 219/1986; 25 July 1990
Iliafi & Ors v The Church Jesus Christ of Latter-Day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26
JMA Accounting Pty Limited and anor. v Commissioner of Taxation and ors. (2004) 211 ALR 380; [2004] FCAFC 274
Knight v Commissioner, Corrections Victoria [2013] VSC 13
Koowarta v Bjelke-Petersen (1982) 153 CLR 168; [1982] HCA 27
Law Society of South Australia v Le Poidevin (1988) 201 LSJS 76
Macedonian Teachers’ Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489
Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No.4) [2016] FCA 33
Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28
McEvoy v Lobban (1989) 48 A Crim R 412
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Nguyen v Refugee Review Tribunal (1977) 74 FCR 311
Patsalis v NSW [2012] NSWSC 267
Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320
R v Khazaal (2006) 167 A Crim R 565; [2006] NSWSC 1353
R (Daly) v Secretary of State for the Home Department [2001] UK HL 26; [2001] 2 AC 532
R v Hull Prison Board of Visitors; Ex parte St Germain [1979] 1 All ER 701
R v Secretary of State for the Home Department; Ex parte Leech [1994] QB 198
R v Secretary of State for the Home Department; Ex Parte Simms [1999] QB 349
Raymond v Honey [1982] 1 All ER 756
Rich v Groningen (1997) 95 A Crim R 272
Rich v Secretary, Department of Justice [2010] VSC 390
Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
Solosky v R (1979) 105 DLR (3rd) 745
Walker v R [1993] 2 Qd R 345
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46

Texts Cited:

English Vocabulary Elements (2nd Edition) (Denning, Kessler and Leben) Oxford University Press 2007

Category:

Principal judgment

Parties:

Bassam Hamzy – Plaintiff
Commissioner of Corrective Services – First Defendant
State of NSW – Second Defendant

Representation:

Counsel:
M Finnane QC – Plaintiff
J Emmett and J Edwards – First and Second Defendants

  Solicitors:
Zali Burrows Lawyers – Plaintiff
Crown Solicitor for NSW – First and Second Defendants

File Number(s):

2016/2761272016/2761862017/1771962018/41479

Publication restriction:

Nil

Judgment

INTRODUCTION

1. Bassam Hamzy (the plaintiff) is currently serving a sentence of full-time imprisonment. That sentence is administered by the Commissioner of Corrective Services (the defendant) [1] pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act).

   1. Although the plaintiff has joined the State of NSW in some of the proceedings, the focus of the issues is upon the decisions of the Commissioner. I have accordingly referred to the Commissioner as the defendant, the State of NSW having taken no active role in the proceedings.

2. Pursuant to cl 15 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the Regulation), which has been made pursuant to ss 79 and 271 of the Act, the defendant may designate an inmate as an extreme high risk restricted (EHRR) inmate if, and only if, he is of the opinion that:

1. the inmate constitutes an extreme danger to other people, or an extreme threat to good order and security; and

2. there is a risk that the inmate may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place.

3. The defendant has formed that opinion in respect of the plaintiff, and has designated him as an EHRR inmate. As a consequence, the plaintiff is serving his term of imprisonment in the High Risk Management Correctional Centre (HRMCC) in Goulburn, NSW.

4. Against this background, the plaintiff commenced four separate sets of proceedings in this Court in which he:

1. sought orders requiring the defendant to do, or to refrain from doing, various things in relation to his custodial management (the judicial review proceedings); [2]

   2. Proceedings 2016/276127.

2. challenged the requirement imposed by the defendant that communications to which he (the plaintiff) is a party in custody be conducted in English, on the basis that such a requirement is unlawful by virtue of ss 9(1) and/or 10(1) of the Racial Discrimination Act 1975 (Cth) (the RDA), or alternatively inconsistent with those provisions and thus inoperative, to the extent of the inconsistency, by virtue of s 109 of the Commonwealth of Australia Constitution Act (the Constitution) (the RDA proceedings); [3]

   3. Proceedings 2016/276186.

3. sought an order for the return of a USB drive seized from his cell (the USB proceedings); [4] and

   4. Proceedings 2018/41479.

4. challenged decisions made by the defendant pursuant to a Behavioural Management Plan which operates in the HRMCC (the BMP proceedings). [5]

   5. Proceedings 2017/177196.

5. I was informed at the commencement of the hearing that the USB proceedings have been resolved on the basis of an agreement between the parties that the USB drive in question, which had remained in the custody of the Court, be returned to the plaintiff's representatives. That has now been done.

6. I was further informed that the plaintiff no longer wishes to pursue the BMP proceedings.

7. That leaves the judicial review proceedings and the RDA proceedings for determination.

THE JUDICIAL REVIEW PROCEEDINGS

The plaintiff’s pleaded case

8. The amended summons filed by the plaintiff in the judicial review proceedings seeks relief pleaded in the following terms: [6]

   6. Ground 1(d) in the amended summons was not pressed.

Ground 1(a) – The plaintiff's right to access legal representation

1. Relief in the nature of a Declaration that the provision that only the Commissioner for Corrective Services NSW may approve a person to visit an extreme high risk inmate or a national security interest inmate pursuant to clause 94(1) of the Crimes (Administration and Sentencing Regulation [sic] 2014 (NSW) is invalid to the extent that the provision includes visitations by legal representatives pursuant to:

1. the right to access legal representation under the Crimes (Administration and Sentencing Regulation [sic] 2014 (NSW), clauses 78(2) and 82.

2. the right to access legal representation and a fair hearing under Chapter III of the Constitution;

3. the right to access legal representation and a fair hearing under the common law of Australia;

4. the right to access legal representation and a fair hearing under customary international law, as adopted or incorporated into the common law of Australia.

2. Relief in the nature of a Declaration that the decision by the Commissioner of Corrective Services NSW to exercise his discretion and require the legal representatives of the plaintiff to undergo a criminal record check before granting approval to visit the plaintiff pursuant to clause 94(2) of the Crimes (Administrative Sentences) Regulation [sic] 2014 (NSW) was unreasonable.

Ground 1(b) – The plaintiff's access to the Audio Visual Link (AVL)

3. Relief in the nature of a Declaration that the decision by the Commissioner of Corrective Services NSW to deny the plaintiff access to AVL facilities to communicate with his legal representatives was invalid or unreasonable pursuant to:

1. the right to use a telephone under the Crimes (Administration and Sentencing [sic] Regulation 2014 (NSW), clause 163.

2. the right to communicate with legal representatives under Chapter III of the Constitution;

3. the right to communicate with legal representatives under the common law of Australia;

4. the right to communicate with legal representatives under customary international law, as adopted or incorporated into the common law of Australia. [7]

   7. It is noted that notwithstanding paragraph (a), no specific submissions were made on behalf of the plaintiff regarding Clause 163.

Ground 1(c) – The plaintiff's access to the Offender Telephone System (OTS)

4. Relief in the nature of a Declaration that the practice by officers of the Commissioner for Corrective Services NSW to “drop in” and intercept the telephone calls by the plaintiff to his legal representatives is contrary to law, pursuant to:

1. the right to private and confidential communications by way of a telephone under the Crimes (Administration and Sentencing [sic] Regulation) 2014 (NSW), clause 163;

2. the Surveillance Devices Act 2007 (NSW);

3. the Telecommunications (Interception and Access Act [sic] 1979 (Cth);

4. the right to private and confidential communications with legal representatives under Chapter III of the Constitution;

5. the right to private and confidential communications with legal representatives under the common law of Australia;

6. the right to private and confidential communications with legal representatives under customary international law, as adopted or incorporated into the common law of Australia. [8]

   8. It is noted that notwithstanding paragraphs (f) and (g), no submissions were made on behalf of the plaintiff regarding the Surveillance Devices Act 2007 (NSW) or the Telecommunications (Interception and Access) Act 1979 (Cth).

……

A Writ of Prohibition

5. Relief in the nature of a Writ of Prohibition restraining the defendants, their employees, officers, delegates or agents from giving effect to the relevant clauses of the Crimes (Administrative Sentences) [sic] Regulation 2014 (NSW).

Costs

6. Relief in the nature of an Order for costs.

THE EVIDENCE

9. A joint tender bundle was admitted by consent. [9] The plaintiff read the following affidavits:

1. Zali Burrows, solicitor, of 20 September 2019;

2. the plaintiff of 23 September 2019; and

3. Zali Burrows, solicitor, of 25 September 2019.

   9. Exh A. This included the evidence relied upon by the parties in the RDA proceedings.

10. Neither the plaintiff nor Ms Burrows was cross-examined on those affidavits. It should be noted that although the joint tender bundle included three further affidavits of Ms Burrows, none of those affidavits were read.

11. The defendant read the following affidavits:

1. Geoffrey Poulsen, Acting Manager of Security at the HRMCC, of 13 August 2017 (with exhibit GP1);

2. Geoffrey Poulsen of 10 August 2018;

3. Bernhard Ripperger, Director, Community Protection Legal, Department of Communities and Justice, of 18 September 2019; and

4. Bernhard Ripperger of 15 October 2019.

12. Neither Mr Poulsen nor Mr Ripperger was cross-examined.

The agreed facts

13. A statement of agreed facts formed part of the evidence in the judicial review proceedings and is in the following terms:

1.   The plaintiff is designated as an extreme high risk restricted inmate pursuant to cl. 15(3) of the Crimes (Administration of Sentences) Regulation 2004 (“the CAS Regulation”). He is currently housed in Area 2 of the High Risk Management Correctional Centre (“the HRMCC”) at Goulburn.

Visits in person

2.   The Commissioner of Corrective Services (“the Commissioner”) permits lawyers to visit the plaintiff or any other EHRR inmate in person only if they are approved to do so. The Commissioner relies, in this respect, on cl. 94(1) of the CAS Regulation.

3.   Since about 2016, the Commissioner has required that all lawyers seeking approval to visit the plaintiff and other EHRR inmates in person undergo criminal record checks by way of a Criminal Record Inquiry (“CRI”). The Commissioner relies, in this respect, on cl. 94(2) of the CAS Regulation.

4.   The Commissioner’s usual practice is to grant approval for periods of 12 months. After that period, in order to continue their approval, lawyers wishing to visit are required to provide a further CRI form to permit an updated criminal record check to be [sic] occur.

5.   Ms Zali Burrows and Mr Michael Finnane have both been required to seek approval to visit the plaintiff and to submit CRI forms. Both Ms Burrows and Mr Finnane are presently approved to visit the plaintiff.

6.   The Commissioner has previously refused to grant (or not granted) approval to visit the plaintiff to solicitors who have failed to submit a CRI form, including Mr Martin Churchill, Mr Ali Abbas and Mr Chris Eliopoulos.

7.   The Commissioner’s position in respect of Mr Finnane’s application for approval to visit Mr Hamzy is set out in the letter from him to Mr Finnane, dated 26 April 2019, which is annexed to this document.

Access to lawyers by audio visual link (“AVL”)

8. From approximately 30 September 2009 to 4 July 2019, Mr Hamzy was housed in Area 1 of the HRMCC. AVL facilities were available in Area 1 of the HRMCC. Those facilities permitted inmates to make unmonitored calls.

9. The plaintiff applied to use the AVL facilities in Area 1 of the HRMCC, and was permitted to do so from time to time, until May 2016. On 20 May 2016, a Corrective Services officer wrote to Mr Hamzy informing him that his use of the AVL facilities was prohibited indefinitely.

10.   AVL facilities are available in Area 2 of the HRMCC and are, in some cases, permitted to be used by EHRR inmates to contact their lawyers. Corrective Services officers are able to monitor the visual link but not the audio link. Monitoring of the audio of calls made on the AVL facilities in Area 2 is not available. The plaintiff has never applied for access to the AVL facilities in Area 2.

11.   The Commissioner, through Bernhard Ripperger, has stated that, based on the information currently available, and without pre-judging any application before it is made, the limitation with respect to monitoring AVL booths in HRMCC Area 2 is likely to be a powerful consideration against the plaintiff being granted access to his lawyers by AVL.

Access to lawyers by telephone

12.   The Commissioner permits the plaintiff to make telephone calls to lawyers only if they have first been approved as legal contacts on the Offender Telephone System (“OTS”).

13.   Ms Burrows and Mr Finnane are both approved legal contacts for the plaintiff to access on the OTS.

14. Corrective Services officers monitor OTS calls made by the plaintiff to his lawyers in the manner described in the affidavit of Geoffrey Poulsen, sworn 13 August 2017, at [35].

15.   Corrective Services’ policy is that monitoring officers will listen to a call briefly and randomly. If, in that time, the listening officer determines that the call is not with the approved recipient or is not being conducted in English or another approved language, the call will be disconnected. The making of that determination may, in some cases, involve the exercise of an evaluative judgment, having regard to the circumstances of the OTS call.

The affidavit evidence

14. In addition to the agreed facts, various parts of the affidavit evidence addressed the issues raised in the judicial review proceedings.

Visits by legal representatives

15. In his affidavit of 13 August 2017, Mr Poulsen explained that as an EHRR inmate the plaintiff is presently placed at the HRMCC. [10] This facility houses inmates who have been determined to represent a significant risk to correctional centre security as well as to the wider community, and who require a higher level of supervision than the general prison population. In terms of the restrictions placed by the defendant on communications by inmates in the HRMCC, Mr Poulsen said: [11]

7. Corrective Services restricts communications by, and visits to, EHRR inmates, in particular through monitoring their communications and contact with people outside the correctional system. Communications are only permitted with approved people.

8. The restrictions on the communications of EHRR inmates are aimed at reducing the risk posed by the inmate due to unrestricted external communications and are not intended to prevent inmates from accessing legal representation.

10. At [4].

11. At [7]-[8].

16. Mr Poulsen also made reference to the general conditions which govern visits by legal representatives to EHRR inmates: [12]

22. Visits to EHRR inmates must be non-contact visits, meaning that they take place in an environment where physical contact between the visitor and the inmate is prevented, unless the Commissioner approves a contact visit: see cl. 100 of the Regulation. In my experience, legal visits to EHRR inmates are usually conducted as non-contact visits. Inmates and visiting lawyers sit on either side of a clear barrier, through which they may see each other and speak to each other but not have any physical contact.

23. Because legal visits are routinely non-contact visits, inmates and visiting lawyers are not able to directly pass documents to one another. In order for documents to be shared during a visit, the inmate or the legal practitioner must hand it to a Corrective Services Officer, who will take it to the other person. The Corrective Services Officer is required to give the document a cursory check to ensure that it is a legal document and that it does not contain prohibited material, but does not read the document beyond the minimum necessary to do so. At the conclusion of the visit, the document must be returned to either the inmate or the legal representative in whose possession the document was at the start of the visit.

12. At [22]-[23].

17. In her affidavit of 20 September 2019, Ms Burrows deposed to the difficulties that she had experienced in being able to visit the plaintiff: [13]

[4] A recent example of difficulty with seeing Mr Hamzy was last week when granted a legal booking for Mr Finnane QC and myself on Friday 6 September 2019 930am – 11.30am and 12.30pm – 2pm. My CRI was processed and approved expeditiously as to facilitate my access on Friday. I had approval and I was refused entry. I subsequently corresponded with the chief of staff of the Commissioner, Mr Frommer and executive services seeking [sic] urgent legal visit as it was not appropriate for Mr Finnane to be without a solicitor in a legal visit. I was subsequently allowed into the centre after 12.30pm yet with processing time, I had about less than 1 hour with Mr Hamzy in [sic] visit with Mr Finnane.

13. At [4] under the heading “Recent difficulty with seeing Mr Hamzy”.

18. Annexure D to that affidavit was an email sent by Ms Burrows to the defendant at 9:55am on 6 September 2019 in the following terms:

I received confirmation yesterday that my CRI was approved, and that I could attend legal visit [sic] with Mr Finnane QC to see Bassamn [sic] Hamzy. I booked the visit for Mr Finanne [sic] QC and myself today. Further, I sent an email yest3rday [sic] regarding a computer to be available and bringing [sic] USB. I did not receive any communication indicating that my visit would be refused today, noting the 5 hour return drive.

I am at Goulburn now and have been refused entry because my legal visit is not approved.

This is viewed as [sic] hinderance [sic].

I would be grateful for immediate clearance to visit my [sic] Hamzy with Mr Finnane QC.

19. In terms of Ms Burrows’ visits to the plaintiff, Mr Poulsen said the following in his affidavit of 13 August 2017: [14]

19. Ms Burrows has completed a CRI and is approved to visit Mr Hamzy, subject to that CRI remaining current. Ms Burrows was notified of that approval by an email of 21 June 2017 from Ms Angela West, General Manager, Security & Intelligence … The email states that “all communications with your clients are for legal purposes and are limited to current matters before the court”. I understand that Ms Burrows assists a large number of inmates in the HRMCC, and the limitation in respect of current matters before the court was imposed in an attempt to more equitably provide access to the limited available bookings for legal visits.

20. In order to visit Mr Hamzy, Ms Burrows must comply with the ordinary operational requirements for legal visits to the HRMCC. Those requirements include that an application be made 48 hours in advance of the visit and that the visitor must present appropriate identification. The approval of any visit will be subject to operational and resourcing requirements. … I am aware that applications by Ms Burrows to visit Mr Hamzy on other dates have been refused, including for reasons of capacity and because she failed to apply in advance.

14. At [19]-[20].

20. In his affidavit of 15 October 2019, Mr Ripperger addressed the events surrounding Ms Burrows’ visit to the HRMCC on 6 September 2019: [15]

3. At the time that Ms Burrows sought to book the visit on 6 September 2019, she was not approved to visit Mr Hamzy, because her approval had lapsed and not been renewed (on account of her not having submitted an updated Criminal Records Inquiry (“CRI”) form). As a result, her booking was initially refused and was not entered into the HRMCC's systems when it was made. The booking for Mr Finnane was accepted.

4. On 3 September 2019, Ms Burrows provided an updated CRI form for the purpose of extending her lapsed approval to visit Mr Hamzy. …

5. On 5 September 2019, a Corrective Services Officer sent an email to Ms Burrows informing her that her approval to visit Mr Hamzy had been extended to 5 September 2020. …

6. I am aware that Ms Burrows and Mr Finnane attended the Goulburn Correctional Complex on 6 September 2019 to visit Mr Hamzy and that Ms Burrows was not initially permitted to enter the HRMCC. Mr Finnane was permitted to visit Mr Hamzy in the morning and afternoon visit sessions.

7. I am instructed that the reason why Ms Burrows was initially not permitted to enter the HRMCC was because she was not booked to visit Mr Hamzy on 6 September 2019. After Ms Burrows attended the HRMCC and further enquiries were made, relevant officers were made aware of Ms Burrows' approval, granted the previous day, and a decision was made to permit Ms Burrows to visit Mr Hamzy notwithstanding that her booking had not been entered. Ms Burrows was then permitted to enter the HRMCC in the afternoon visit session.

15. At [3]-[7].

The plaintiff’s access to computers and AVL facilities

21. Ms Burrows also made reference to the issue of the plaintiff’s access to a laptop computer for the purposes of her being able to confer with him: [16]

5. Prior to the visit, I sent an email to HRMCC seeking that a laptop be available for the legal visit and that I was bring in [sic] a USB. This USB was provided to me by Mr Frommer containing materials in these proceedings. Mr Finnane was declined consent to bring the USB into the legal visit and a laptop computer was not made available.

6. When I was in [sic] legal visit I noticed that there are no computers in the legal visit boxes, [sic] further note that there are several boxes to be sound proofed and you speak through a microphone now. At times there was a static, echo, voice delay and difficulty in hearing Mr Hamzy clearly.

16. At [5]-[6] under the heading “Recent difficulty with seeing Mr Hamzy”.

22. In his affidavit of 23 September 2019, the plaintiff deposed to the difficulties that he has experienced in being given access to a computer, and to AVL facilities, whilst in custody. [17] He stated, in particular, that he had been denied access to a computer on three separate occasions since 16 August 2017, before saying:[18]

14. I believe that I am the only inmate in the HRMCC and The State of NSW that has been denied access to AVL facilities, notwithstanding inmates on charges of murder, terrorism drug dealing and the like is permitted to use AVL facilities to conference with their lawyers.

17. Commencing at [5].

18. At [14]. It is noted that when referring to the plaintiff’s correspondence in this judgment, the correspondence is reproduced in the exact terms in which it has been written.

23. In his affidavit of 13 August 2017 Mr Poulsen said the following regarding access by inmates to computers: [19]

24. Corrective Services does not permit lawyers visiting HRMCC to bring or use their own laptops during a visit. However, there are several laptops, owned by Corrective Services, that are made available to visiting lawyers on request. Access to these laptops is subject to availability and to any particular security or operational requirements on a particular day. Lawyers may bring files on a USB storage device to use with the laptop, and may view files on the USB device or create files to save to the USB device during the visit. No records are kept of access to the laptop. However, I can recall two occasions on which Mr [sic] Burrows has been granted access to a laptop computer during legal visits with Mr Hamzy.

25. Because visits with lawyers are routinely non-contact visits, only the lawyer has access to the laptop computer. However, the lawyer may show the inmate content on the laptop screen through the clear barrier between the inmate and the lawyer. In one of the visiting rooms in the HRMCC, there is also a second screen on the inmate’s side of the barrier that may be used to mirror the screen of the laptop. That screen was installed in June 2017.

19. At [24]-[25].

24. In terms of the plaintiff’s access to AVL facilities, Mr Ripperger explained his affidavit of 18 September 2019 that between 30 September 2009 and 4 July 2019 the plaintiff had been housed in an area of the HRMCC known as Area 1, and was transferred to Area 2 on 4 July 2019. [20] He explained that this relocation did not result in any material change to the plaintiff's access to computers, legal visits, telephone calls to legal representatives, AVL facilities or correspondence. [21] In terms of the plaintiff’s access to AVL facilities, Mr Ripperger explained that there are six AVL booths in Area 2 which are available to facilitate legal conferences on weekdays between 9:30am and 11:30am and 12:30pm and 2:30pm. [22] Mr Ripperger then said: [23]

19. AVL use in HRMCC Area 2 may be subject to visual monitoring by closed circuit television, which permits CSNSW officers to view the inmate using the AVL booth and the recipient of the AVL call. However, there is no system for audio monitoring of AVL calls. Accordingly, unlike the position with respect to legal telephone calls on the Offender Telephone System, it is not possible for CSNSW officers to “drop in" to an AVL conversation to ensure that it is only with the approved recipient (that is, that the conversation is only with the person who is visible on the AVL booth screen, noting that a person who is not the approved recipient could remain invisible on the AVL booth screen, and yet still be able to communicate verbally with the inmate).

20. I have examined CSNSW records and requests for access to the AVL system by a lawyer seeking to hold legal conferences with Mr Hamzy by AVL. No such requests have been made since the introduction of the current system.

21. On the basis of the information now available to me, and without pre-judging any application before it is made, I consider that the limitation with respect to monitoring the AVL booths in HRMCC Area 2 is likely to be a powerful consideration against Mr Hamzy being granted access to his lawyers by AVL. Any decision, in this respect, would ultimately be made by the Commissioner of Corrective Services (or his delegate).

20. At [5].

21. At [6].

22. At [17].

23. At [19]-[21].

25. In his affidavit of 13 August 2017, Mr Poulsen expressed his understanding that conversations over AVL could not be monitored. [24] He then said:[25]

I have formed the view, in my capacity as Acting Manager of Security at the HRMCC, that the provision of AVL access to Mr Hamzy, including either the video link facility or the unmonitored telephone in the AVL room holding cell, would pose a significant security risk, given the lack of appropriate supervision, in that it would increase the likelihood that he would conduct illegal activities from within the HRMCC.

24. At [50].

25. At [51].

26. Mr Ripperger also explained that a laptop computer owned by the defendant has now been assigned to the plaintiff, as part of the defendant's developing policy to facilitate access to computers by inmates. [26] He said that the plaintiff would shortly have access to a computer at all times when in his cell. [27]

    26. Commencing at [10].

    27. At [13].

27. Ms Burrows’ affidavit of 25 September 2019 annexed a bundle of documents which had been provided to her by the plaintiff. Generally speaking, those documents recorded complaints made by the plaintiff to the defendant about:

1. his inability to access a computer;

2. the defendant’s refusal, at one point, to allow him to include Ms Burrows on a list of nominated telephone contacts; and

3. the termination of phone calls he had made to legal practitioners.

The plaintiff’s access to the Offender Telephone System

28. A further document issued by the defendant and entitled “Information for extreme high risk restricted inmates” was annexed to the affidavit of Ms Burrows of 25 September 2019. [28] Under the heading “Telephone calls and audio visual link (AVL) access”, the following was stated in the same document:

No telephone calls or AVL access, with the exception of calls to the Ombudsman, ICAC or other exempt body, will be permitted unless approved by the Commissioner or delegate. All approved calls will be monitored, with the exception of calls to an exempt body or your legal representative. The conversation (including legal calls) must be in English or another language approved by the Commissioner or delegate.

CSNSW staff may re-verify the legitimacy of the call at various intervals throughout the duration of the call or AVL link to your legal representative by momentarily 'dropping in' on the conversation.

'Dropping in' means a brief interception of the call to ensure that the conversation is being conducted in English (or another approved language) and that both you and your legal representative are still speaking in this approved language. The interception of the call will not continue if both you and the legal representative are complying with these conditions.

The call or AVL link will be terminated if at the moment the call is intercepted it is established that the conversation is NOT in English (or another approved language) and/or the conversation is with someone other than your approved legal practitioner) [sic].

Each approval for a telephone contact is only for the person nominated in your request and their telephone number. [Emphasis in original].

28. Annexure B commencing at p.141 of Exh A.

29. The contents of this document are generally consistent with that part of the affidavit of Mr Poulsen of 13 August 2017 in which he explained the practice of monitoring calls:[29]

[35]   OTS calls with EHRR inmates are monitored by Corrective Services Officers to ensure that they are in English and are with approved contacts. In order to monitor calls without breaching inmates’ privilege or confidentiality, it is the practice of Corrective Services that officers periodically “drop in” to the line, listen for only long enough to check that English is being spoken and that the call is with the approved recipient, and then disconnect. No records are made of anything heard during a “drop in” unless the call is not in English or not with an approved person.

29. At para [35].

30. The plaintiff has, for some time, taken issue with the defendant’s officers “dropping in” on his conversations with legal practitioners. For example, on 13 April 2016 he wrote to the defendant stating: [30]

I want all my legal calls to be totaly Private & Confidential in line with the law. I do not accept DCS Breach my privlage commucation, nor do I permit the monotring, nor do I agree for my calls to be monitered, & nor do my lawyers as was stated by DCS to The ombudsmans enquires. DCS already commited a criminal offence by listing to a legal call without a warrent & without Notice when I called ACS. Now I request all my legal calls are Privlage. I want my legal calls to be Private Confidental & Privlage & dont want or agree for them to be monitered as stated to the ombudsman.

30. Exh A p. 318. The content of this document is set out in the terms in which it was written.

31. On 2 December 2016 he again wrote to the defendant stating: [31]

I state carigorically that I do not give any permission, authority or consent to any person or officer to listen to my legally privilaged calls wich are in the pursual of my legal affairs. I am disscusing Privilaged documents, sent in by my lawyers by mail & privilaged document I recived on the legal visit and Material suppressed by the Court.

All my discusions are confidential – Secret & privlaged. I do not consent to any person or officer to listen to any part of my privlaged commucation.

31. Exh A p. 320. The content of this document is set out in the terms in which it was written.

THE RELEVANT LEGISLATION

32. In the course of argument I was taken by counsel for both parties to a number of provisions of the Act and the Regulation. They included the following.

Crimes (Administration of Sentences) Act 1999

33. Section 78A of the Act is in the following terms:

78A Separation and other variations in conditions of custody of inmates

(1) Nothing in this Act requires the conditions of custody of inmates to be the same for all inmates or for all inmates in the same correctional centre or of the same classification or designation, including conditions with respect to association with other inmates.

(2) An inmate or group of inmates in a correctional centre may be held separately from other inmates in the correctional centre for the purposes of the care, control or management of the inmate or group of inmates.

(3) In particular, inmates may be separated because of a requirement of this Act or the regulations, because of the classification or designation of the inmates, because of the nature of any program being undertaken by the inmates or because of any intensive monitoring that is required of the inmates.

(4) The making of a segregated custody direction under Division 2 is not required to authorise a separation of inmates.

(5) Anything done or omitted that could have been validly done or omitted if this section (and section 79 (1) (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted.

34. Section 79 provides (inter alia) as follows:

79 Regulations

(1) The regulations may make provision for or with respect to the following matters—

…

(c) the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified,

(c1) the designation of inmates for the purposes of or in connection with the management of security and other risks,

…

(i) visits to inmates, including--

(i) the days and times that visits may be allowed, and

(ii) the maximum number of persons who may visit an inmate at the same time, and

(iii) the classes of persons who may be prohibited from visiting inmates, and

(iv) the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed, and

(v) the procedures to be observed by visitors and inmates during visits, and

(vi) without limiting subparagraphs (iv) and (v), the identification of visitors (including the removal of face coverings within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for that purpose),

(j) the making and receiving of telephone calls by inmates

…

35. Section 232 of the Act confers a number of responsibilities on the defendant in the following terms:

232 Commissioner

(1) The Commissioner--

(a) has the care, direction, control and management of all correctional complexes, correctional centres and residential facilities, and

(a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2 or 3, and

(b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law.

(2) In the exercise of the functions referred to in subsection (1) (a), (a1) and (b), the Commissioner is subject to the direction and control of the Minister.

(3) The Commissioner may delegate to any person any of the Commissioner's functions, other than this power of delegation.

(4) Sections 10 (2), 11 (3), 12 and 17 (4) do not limit the power of the Commissioner to delegate functions under those sections.

36. The regulation making power is contained in s 271(1) of the Act:

271 Regulations

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act.

37. A specific provision regarding regulations relating to high risk offenders is contained in s 271A of the Act:

271A Regulations relating to high risk offenders

(1) The regulations may provide for the preparation and implementation of plans of management in respect of persons who are high risk offenders, and the provision of services and programs in respect of those persons, by Corrective Services NSW.

(2) The regulations may confer functions on the Review Council in respect of high risk offenders.

(3) A person is a "high risk offender" if--

(a) the person is the subject of an extended supervision order, interim supervision order, continuing detention order, interim detention order or emergency detention order under the Crimes (High Risk Offenders) Act 2006, or

(b) the person is the subject of an extended supervision order, interim supervision order, continuing detention order, interim detention order or emergency detention order under the Terrorism (High Risk Offenders) Act 2017, or

(c) the person is a Commonwealth post sentence terrorism inmate.

Crimes (Administration of Sentences) Regulation (2014) (NSW)

38. Clause 3 of the Regulation defines a number of terms, including the following:

"exempt body" means--

(a) the Ombudsman, the Judicial Commission, the New South Wales Crime Commission, the Law Enforcement Conduct Commission, the Anti-Discrimination Board, the Civil and Administrative Tribunal, the Independent Commission Against Corruption, the Inspector of Custodial Services, the Privacy Commissioner, the Information Commissioner, the Legal Aid Commission, the Legal Services Commissioner or the Legal Services Tribunal, or

(b) the Commonwealth Ombudsman, the Australian Human Rights Commission or the Australian Crime Commission.

"exempt person" means a Member of Parliament, a legal practitioner or a police officer.

39. Clause 5, which is within Part 2 of the Regulation dealing with admission procedures applicable to correctional centres, is in the following terms:

5 Inmates to be notified of rights and obligations

As soon as practicable after an inmate is first received into a correctional centre, the governor must ensure the inmate is informed of the following--

(a) the correctional centre rules (that is, the terms of any general directions given under Part 2 of the Act or under Parts 2-9 of this Regulation),

(b) the inmate's obligations relating to discipline and conduct,

(c) the inmate's rights of legal representation and appeal in relation to proceedings under this Regulation,

(d) the case management process,

(e) the authorised methods of seeking information and making complaints,

(f) the role of an Official Visitor,

(g) the functions of the Review Council in relation to the segregation and protective custody of inmates,

(h) any other matter necessary to enable the inmate to understand the inmate's rights and obligations and adapt to living in the centre.

40. Clause 15(3) gives the Commissioner power to designate an inmate as an extreme high risk restricted inmate:

15 Designation of high security, extreme high security, extreme high risk restricted and national security interest inmates

…

(3) The Commissioner may designate an inmate as an extreme high risk restricted inmate if of the opinion that--

(a) the inmate constitutes--

(i) an extreme danger to other people, or

(ii) an extreme threat to good order and security, and

(b) there is a risk that the inmate may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place.

41. Clause 82 (which is contained within Division 2) governs visits to an inmate by legal practitioners:

82 Visits to transact legal business

In addition to any other visit authorised by this Regulation, an inmate is entitled to be visited by the inmate's legal practitioner.

42. Clause 92 provides that Division 4, which addresses the control of visits to correctional centres and inmates, applies to all visits under Divisions 1, 2 and 3.

43. Clause 94 is contained within Division 4 of the Regulation, which makes provision for the control of visits to correctional centres and inmates. Clause 94 is in the following terms:

94 Approval of visitors to extreme high risk restricted inmates and national security interest inmates

(1) A person may visit an extreme high risk restricted inmate or a national security interest inmate only if the person has been approved by the Commissioner as a visitor to that inmate.

(2) The Commissioner may require a visitor to undergo a criminal record check before approving the person as a visitor to an extreme high risk restricted inmate or a national security interest inmate.

(3) The Commissioner may, on the basis of a criminal record check or for any other reason, refuse to approve a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate.

(4) The Commissioner may revoke an approval of a person as a visitor to an extreme high risk restricted inmate or a national security interest inmate at any time.

(5) The Commissioner may authorise a departure from the requirements of this clause in respect of a particular visitor or a particular visit.

(6) This clause does not limit the general power of a governor to refuse to allow a person to visit an inmate under clause 106.

44. Clause 101 of the Regulation is in the following terms:

101 Visits to extreme high risk restricted inmates to be conducted in English or approved language

(1) During a visit to an extreme high risk restricted inmate, all communications must be conducted in English or another language approved by the Commissioner.

(2) If communications are conducted in a language other than English, the visit must take place within the hearing of an interpreter approved by the Commissioner.

(3) In any case, a visit to an extreme high risk restricted inmate must take place within the hearing of a correctional officer.

(4) The Commissioner may authorise a departure from the requirements of this clause in respect of a particular visitor or a particular visit.

45. Particular arrangements may be made in respect of the inspection of legal documents pursuant to cl 103:

103 Special arrangements for legal documents

(1) An authorised officer may inspect or examine, but not read, any document or other recorded material, including information recorded in electronic form, that is taken into a correctional centre by an inmate's legal practitioner for the purpose of discussing or transacting legal business.

(2) The governor of a correctional centre must ensure that arrangements are made for an inmate and the inmate's legal practitioner to have joint access to any document or other recorded material that is taken into the centre for the purpose of discussing or transacting legal business.

(3) Nothing in this clause limits the operation of clause 100.

46. Clause 116 is in the following terms:

116 Additional requirements for correspondence from extreme high risk restricted inmates and national security interest inmates

(1) All correspondence from an extreme high risk restricted inmate or a national security interest inmate to any other person (other than an exempt body) must be written in English or another language approved by the Commissioner, unless the Commissioner otherwise authorises.

(2) If a letter or parcel received from an extreme high risk restricted inmate or a national security interest inmate and addressed to any person (other than an exempt body) contains any correspondence that is written in a language other than English, the governor or nominated officer may arrange for a translation of the correspondence.

47. Clause 119 is contained within Division 7 which governs the use of (inter alia) telephones by inmates and is in the following terms:

119 Permission required to make telephone calls or send faxes

(1) An inmate must not make a telephone call or send a fax without the permission of an authorised officer.

(2) An inmate must not make more telephone calls or send more faxes in any week than the maximum number fixed by the Commissioner for the inmate or the class of inmates to which the inmate belongs.

(3) An inmate must not have telephone or fax communication with an inmate of another correctional centre without the permission of the governors of both correctional centres.

(4) A correctional officer may terminate an inmate's telephone call or fax communication if of the opinion that--

(a) the continuation of the call or communication will, or is likely to--

(i) prejudice the good order and security of any correctional centre, or

(ii) constitute a threat to the personal security of any person, or

(b) the call or communication is being conducted in contravention of this Regulation.

(5) As soon as practicable after terminating an inmate's telephone call or fax communication, a correctional officer must ensure details of the reason for the termination are recorded, and report the details to the governor.

(6) All telephone calls made by an extreme high risk restricted inmate or a national security interest inmate must be conducted in English or another language approved by the Commissioner, unless the telephone call is made to an exempt body or unless the Commissioner otherwise authorises.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

48. In addressing ground 1(a) in the amended summons, senior counsel for the plaintiff emphasised the fundamental common law right of every person to choose his or her own legal representative(s). He submitted that as a person in custody, the plaintiff's right in that respect had been acknowledged, at least in part, by cl 82 of the Regulation. Senior counsel submitted that such a fundamental common law right cannot be restricted or removed except in the clearest of circumstances.

49. Senior counsel submitted that the evidence established that the defendant had at least restricted, if not revoked, the right of the plaintiff to choose his own legal representative by deciding to implement a policy which:

1. required that any legal practitioner seeking to visit an EHRR inmate agree to complete a form authorising a CRI to be undertaken;

2. required that any legal practitioner seeking to visit an EHRR inmate be approved to do so;

3. required that any application for approval to visit an EHRR inmate be renewed each 12 months, necessitating a repeat of the process in (i) and (ii) above;

4. required that a booking be made by an approved legal practitioner to visit an EHRR inmate at least 48 in advance of the proposed visit;

5. prevented Ms Burrows from visiting the plaintiff on 6 September 2019 because she had not given 48 hours’ advance notice of her intended visit; and

6. mandated that an approval which had been granted to a legal practitioner to visit one EHRR inmate could not be relied upon by that practitioner as constituting an approval to visit another EHRR inmate, thus necessitating a requirement for the practitioner to undergo multiple procedures of the kind in (i) above, depending upon how many separate inmates were to be visited.

50. Senior counsel submitted that the defendant’s decision to implement such a policy amounted to “trampling" on the plaintiff's common law rights in a way which was unauthorised by law, and which amounted to the plaintiff being denied access to a legal practitioner. He submitted, in particular, that there was nothing contained in the Act or the Regulation which reflected any intention by the Parliament to impose restrictions on a person's right to choose, or have access to, a legal practitioner, nor was there anything in the Act or Regulation which reflected an intention to allow a practice which required a legal practitioner to submit to a CRI, and thus undergo what senior counsel described as a “burdensome" process, in order to be able to visit an EHRR inmate. Senior counsel submitted that it was both inappropriate and unlawful to require a legal practitioner to submit to a CRI in the absence of some express legislative provision permitting such a policy.

51. In advancing these submissions, senior counsel acknowledged that restrictions of this kind may be appropriate in the case of (as he put it) “other people” (i.e. people other than legal practitioners) who might want to visit the plaintiff. He developed this proposition by submitting that the process of requiring a legal practitioner to undergo a CRI was entirely unnecessary because it could be inferred, without enquiry, that any legal practitioner who held a current practising certificate was a person of no prior convictions. It was submitted that this demonstrated that the defendant’s policy was lacking in utility. As I understood it, senior counsel relied on that asserted lack of utility as a further indicator of the unreasonableness of the defendant’s decision to formulate and implement the policy.

52. It was further submitted that the proper administration of justice demanded that any legal practitioner acting for an EHRR inmate not be impeded in carrying out his or her professional duties. Senior counsel submitted that the process of requiring a legal practitioner to undergo a CRI necessarily gave rise to such an impediment.

53. Senior counsel further submitted that the conditions governing personal visits by a legal practitioner to an EHRR inmate, which prevent any physical contact between the two, further demonstrated the impermissible and unreasonable nature of conduct by the defendant which encroached upon the rights of the plaintiff. In this regard, senior counsel referred specifically to that part of Mr Poulsen’s evidence which, he submitted, established that an officer of the defendant may read a document for the purposes of determining whether it was prohibited. [32] It was submitted that this amounted to a violation of any legal professional privilege which might otherwise attach to material of that nature. [33]

    32. Set out at [16] above.

    33. This submission appeared to fall outside the ambit of ground 1(a). In any event, the procedure referred to by senior counsel is authorised by cl 103 of the Regulation.

54. Senior counsel for the plaintiff then turned to ground 1(b) of the amended summons, which challenged the defendant’s decision to refuse the plaintiff access to AVL facilities for the purposes of conferring with his legal representatives. Bearing in mind the evidence of Mr Ripperger as to the reasons why the plaintiff would not be granted access to AVL facilities, it was submitted that the defendant had no authority to “breach the entitlement of [the plaintiff] to complete confidentiality of discussions” with those representatives.

55. Senior counsel also pointed out that in the absence of being given access to AVL facilities for the purposes of such discussions, it was necessary for the plaintiff’s legal representatives to travel to Goulburn for that purpose. As I understood it, that circumstance was said to further reflect the unreasonableness of the defendant’s decision.

56. As to ground 1(c) of the amended summons, senior counsel for the plaintiff submitted that legal professional privilege is not a rule of practice, but an important substantive law. He submitted that there was nothing in the Act or the Regulation that abrogated that privilege, or which otherwise authorised the defendant to “drop in” on an inmate’s calls. Senior counsel submitted that there was no entitlement, absent a clear statutory intention, for any person to engage in a breach of legal professional privilege by “dropping in” on calls between a legal practitioner and an inmate. In advancing these submissions, he emphasised that the evidence established that such practice was an entirely discretionary one, in terms of determining:

1. whether to monitor a conversation at all;

2. the length of time over which any conversation was monitored; and

3. whether a particular conversation would be monitored on more than one occasion in the course of its duration.

57. It was submitted that the practice was a breach of legal professional privilege because those officers of the defendant who “dropped in" on calls necessarily gained an understanding of what legal advice an inmate was seeking and obtaining.

58. Beyond these matters, senior counsel relied, in support of this ground, on the submissions advanced in support of the relief sought in paragraph 1(b) of the amended summons.

Submissions of the defendant

59. Counsel for the defendant commenced by citing a number of general principles which, he submitted, were relevant to the resolution of the issues in the judicial review proceedings.

60. Firstly, counsel submitted that the right of a person to choose a legal practitioner was not absolute, and that there were necessarily circumstances in which that right could be curtailed, or even removed altogether, by legislation.

61. Secondly, whilst accepting that any inmate must not have his or her right to a fair hearing compromised, counsel submitted that what might be required to ensure that this is achieved will necessarily vary from case to case, and will depend, at least in part, on the nature of the proceedings in question, and the stage that such proceedings have reached.

62. Thirdly, counsel submitted that “prison legislation" such as the Act and the Regulation recognises the necessity for those who have the responsibility of administering and managing correctional authorities to have the power to properly carry out those tasks. This, it was submitted, informed any process of judicial review of the exercise of such power, and that it was necessary to strike a balance between the duties and responsibilities of correctional authorities to administer prisons, and the reluctance of the common law to construe legislation in a way which impedes access to the courts.

63. Against this background, counsel for the defendant turned firstly to ground (1)(a) in the amended summons. Counsel submitted that cl 94 of the Regulation does not deprive an inmate of access to a legal representative and that any inmate, including the plaintiff, remains able to choose and engage any legal representative who is willing to undergo a CRI. It was submitted that in all of these circumstances, cl 94(2) was clearly within the regulation making power conferred by the Act.

64. It was submitted that on the whole of the evidence, there was no basis for concluding that any of the decisions of the defendant regarding the approval of the plaintiff’s legal representatives were unreasonable, illogical or irrational. Counsel for the defendant submitted, in particular, that in the context of a high risk prison environment, it was not unreasonable for the defendant to approach issues relating to the approval of legal representatives on the fundamental premise that no individual can be assumed to be incorruptible.

65. It was further submitted that the requirement for a legal practitioner wishing to visit an EHRR inmate to undergo a CRI was far from burdensome, and was a practice which, not unreasonably, ensured that the defendant had up-to-date information about such practitioners. It was submitted that for the same reasons, it was not unreasonable for the defendant to implement a system of ongoing approval of legal practitioners by requiring that such process be repeated at 12 month intervals.

143. It follows that decisions of international courts and tribunals are appropriately taken into account in determining the meaning of provisions of the Convention, as well as any Australian law (such as s 9(1) of the RDA) that gives effect to it. However, when taking into account such decisions, it is important to bear in mind the caution expressed by French CJ in Maloney:[95]

     95. Supra at [138].

An interpretation of a treaty provision adopted in international practice, by the decisions of international courts or tribunals, or by foreign municipal courts may illuminate the interpretation of that provision where it has been incorporated into the domestic law of Australia. That does not mean that Australian courts can adopt “interpretations" which rewrite the incorporated text or burden it with glosses which its language will not bear.

144. Article 5(d)(viii) of the Convention identifies a right to freedom of opinion and expression. Given the way in which the plaintiff’s case has been put, the question for this Court is whether that right either extends to, or encompasses, a human right to communicate with other people, in all circumstances, in the language of a person's choice (in this case the Arabic language). The determination of that question necessitates reference to a number of authorities.

145. In Iliafi & Ors v Church of Jesus Christ of Latter-Day Saints Australia the respondent had been established for (inter alia) the furtherance of religious purposes. [96] Within its structure, it created Samoan-speaking groups known as “wards”, of which the appellants were members, and within which the appellants worshipped as a group in their native Samoan language. The respondent closed the wards, following which it announced that the appellants were no longer permitted to use any language other than English in public worship. As a consequence, the respondents could no longer publicly sing or testify in the Samoan language in religious services.

     96. (2014) 221 FCR 86; [2014] FCAFC 26.

146. The appellants brought proceedings in the Federal Magistrates Court (as it was then known) asserting that the respondents had acted contrary to s 9 of the RDA. Having noted that the appellants sought to invoke the right to freedom of expression in Article 5(d)(viii) of the Convention in support of the existence of a right to worship publicly as a group in the Samoan language,[97] Kenny J (with whom Greenwood and Logan JJ agreed) concluded: [98]

     97. At [87].

     98. At [91], citations omitted.

The right to freedom of expression is essentially the freedom to communicate and receive opinion, information and ideas without interference. Thus the right to freedom of expression in Art 19(2) of the ICCPR extends to “every form of subjective ideas and opinions capable of transmission to others, which are compatible with Art 20 of the Covenant, of news and information, of commercial expression and advertising, of works of Art, etc; it should not be confined to means of political, cultural or artistic expression”. … the use of a particular language may be protected by the right to freedom of expression, although this right cannot be equated with a “right to language”.

147. His Honour went on to say:[99]

     99. At [92].

… [T]he right to freedom of expression does not guarantee “linguistic freedom as such” or “guarantee a right to use the language of one’s choice” in all circumstances.

148. The latter conclusion was reached by his Honour by reference to the decision of the Human Rights Committee of the United Nations in Ballantyne v Canada. [100] In that case, those bringing the proceedings conducted various businesses in Québec. Their mother tongue, and that of many of their clients, was English. They each asserted breaches of provisions of the Covenant by the Federal Government of Canada, as well as by the Province of Québec, on the basis that they were forbidden to use English for the purposes of advertising on commercial signs outside their business premises, or use English within the names of their respective firms. The Committee concluded that the restrictions which had been placed on advertising in the English language violated the right to freedom of expression contained in Article 19 of the Covenant. Significantly however, the Committee also said: [101]

     100. (Communications Nos 359/1989, 385/1989; 31 March 1993).

     101. At 11.4.

A State may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one's choice.

149. The corollary of that proposition is that a state may exclude the freedom to express oneself in a language of one's choice within spheres of what might be regarded as “public life”.

150. Some assistance in interpreting what is meant by “public life” in this context is to be found in the decision of the European Commission (the predecessor to the European Court of Human Rights) in Fryske Nasjonale Partij v Netherlands. [102] In that case, members of a Frisian political party had attempted to engage in correspondence with people in various tiers of the Government of the Netherlands using the Frisian language. They refused to submit translations of their correspondence into the Dutch language and argued that the Government’s refusal to allow them to use the Frisian language for administrative purposes constituted a violation of the Convention. The Commission found that the communications related to “administrative matters”, a private context which did not confer a right to use the language of one’s choice: [103]

     102. (1985) 9 EHRR 240.

     103. At 242-243, citations omitted.

According to Article 9 of the Convention everyone has the right to freedom of thought, conscience and religion. Article 10 of the Convention guarantees the right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

However, the Commission recalls that these provisions do not guarantee “linguistic freedom" as such. In particular, they do not guarantee the right to use the language of one's choice in administrative matters.

151. A similar approach was taken by the Human Rights Committee in Guesdon v France. [104] The complainant in that case was a Breton. His mother tongue was Breton and although he could speak French, Breton was the language in which he could best express himself. He was charged with having damaged public property and had requested before a Correctional Tribunal that he and his witnesses be permitted to give their evidence in Breton, on the basis that this was the language used by each of them on a regular basis. That request was refused by the Tribunal and the hearing proceeded. The complainant was given a suspended sentence and asserted before the Committee that the French Courts had violated a number of his rights, including his right to freedom of expression, his right to equal treatment, and his right to the enjoyment of minority rights such as the use of a minority language. The Committee concluded that the right to freedom of expression in Article 19 of the Covenant did not give a person a right to use his or her preferred language in a Court proceeding, such a proceeding being one conducted in the exercise of a public function by the State. Having observed that the fact that a person is not able to speak the language of his or her choice did not raise any issue under Article 19 of the Covenant, [105] the Committee concluded: [106]

     104. Communication No 219/1986; 25 July 1990.

     105. At 7.2.

     106. At 10.4.

French law does not, as such, give everyone a right to speak his own language in court. Those unable to speak or understand French are provided with the services of an interpreter. This service would have been available to the author had the facts required it; as they did not, he suffered no discrimination under article 26 on the ground of his language.

152. The decision of Kenny J in Iliafi is authority for the proposition that the right to freedom of expression does not guarantee a right to use the language of one’s choice in all circumstances. The common thread to be drawn from the decisions in Ballantyne, Fryske and Guesdon is that in determining whether there are circumstances which do guarantee that right, an important distinction is to be drawn between communications made in a public context and those made in a private context. If the communication falls into the former category, there is no right to use the language of one’s choice. It may be otherwise if the communication falls into the latter category.

153. In my view, the application of these principles to the plaintiff’s case leads to a conclusion that the right to freedom of opinion and expression does not encompass the right that the plaintiff asserts, namely the right to speak and/or express himself in Arabic in all circumstances, including the circumstance of his being an inmate in a correctional centre. As was the case with the Court in Guesdon, a correctional centre is a public facility operated by the State, a circumstance which can be contrasted with the private contexts considered in Ballantyne and Fryske.

154. The decision Nguyenv Refugee Review Tribunal provides, by way of analogy, some further support for this view. [107] In that case, the appellant had made an application for refugee status and a temporary entry permit. The documents supporting those applications were written in the Vietnamese language, and accompanied by an English translation. A letter was sent to the appellant, in English, advising him that his applications had been refused, and also advising him of his right to seek a review of that decision before the Refugee Review Tribunal. An application to that Tribunal was rejected because of a failure to submit it within the stipulated 28 day period. A further letter, again written in English, was sent to the appellant advising him of that rejection. The appellant asserted that because his inability to read English, he was less able to enjoy the right to be notified of the decision than a person of another race who was able to understand English. In dismissing the appeal Tamberlin J observed: [108]

     107. (1977) 74 FCR 311.

     108. At 319.

The use of the official language of Australia in official correspondence cannot be said to be discriminatory in form or in effect any more than legislation and judicial decisions which are printed in English, could be said to be discriminatory. The use of English in the present circumstances is both reasonable and appropriate.

155. Sundberg J said: [109]

     109. At 325.

The official language of Australia is English. The Constitution, statutes, regulations and by-laws are written in English. Proceedings in parliament and the courts are conducted in English. Governments correspond with their citizens in English. In that context a requirement that an appellant be notified in writing of a governmental decision affecting him is, in the absence of something showing a contrary intention, to be understood as requiring a notification in English.

156. The communications sent to the appellant in Nguyen were sent in the discharge of a public function by the Government. The effect of the Court’s decision is that in such circumstances, it is open to the Government to determine the language in which such communications can be made. In the present case the State, represented by the defendant, has an obvious interest in the language in which inmates communicate. That interest stems from the defendant’s responsibility to administer, and maintain good order in, correctional facilities. That interest is sufficient to warrant the defendant being able to select the language in which such communications can occur.

157. For these reasons, the right to freedom of opinion and expression in Article 5(d)(viii) of the Convention does not extend to, or encompass, a human right to communicate with other people, in all circumstances, in the language of a person's choice. It follows that the plaintiff's asserted right is not a human right as a matter of international law. Accordingly, it is not a right which engages either ss 9(1) or 10(1) of the RDA.

158. Before leaving these issues, I should emphasise that nothing that I have said in the preceding paragraphs should be construed as expressing a view that a person who is in custody is to be regarded as (as counsel for the defendant described it) “civilly dead", or a person whose human rights are “checked at the door". Under English law, any convicted prisoner, in spite of his or her imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. [110] That is also the position in Australia. [111] At the same time, the rights of the plaintiff, as an EHRR inmate, are necessarily curtailed as a consequence of the fact of his imprisonment. It is in those circumstances that I have reached the conclusions set out above.

     110. Raymond v Honey [1980] 1 All ER 756 at 759 per Lord Wilberforce citing R v Hull Prison Board of Visitors; Ex parte St Germain [1979] 1 All ER 701 at 716 and Solosky v R (1979) 105 DLR (3rd) 745 at 760.

     111. See for example Rich v Secretary, Department of Justice [2010] VSC 390 at [45].

Do the RDA proceedings fail in any event?

159. Even if I am wrong in those conclusions, there are further reasons why the RDA proceedings must fail.

160. Section 9(1) of the RDA makes it unlawful for a person to do any act:

1. where such act involves a distinction, exclusion, restriction or preference;

2. where such act is based upon race, colour, descent or national or ethnic origin;

3. where such act has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of the right of another person; and

4. where that right is a human right or a fundamental freedom in the political, economic, social, cultural or any other field of public life. [112]

   112. Australian Medical Council v Wilson and ors (1996) 137 ALR 653 at 678 per Sackville J.

161. For the reasons I have previously expressed, I am not satisfied that the right asserted by the defendant is a human right, in which case the requirement in (iv) would not be made out. However, even if it was, the RDA proceedings, insofar as they are based upon s 9(1) of the RDA would still fail.

162. The effect of s 9(1) is that is prohibits certain acts which are based on race, colour, descent or national or ethnic origin. In the context of the present case, the plaintiff asserts that the act of the defendant requiring him to speak English in the course of visits is one which is based on one or more of those factors.

163. The submissions of counsel for the defendant pointed out that conflicting views have been expressed as to the meaning of the term “based on” when used in this context. One line of authority favours the view that an act will be (for example) based on race if it is an act done by reference to race, such that there is no need for a causal relationship between the two. [113] The other line of authority favours the view that a causal relationship must exist between the matters that influenced the act, and the act itself. [114] On that basis, the relevant enquiry is whether the relevant distinction is a material factor in performing the relevant act. [115]

     113. See for example Macedonian Teachers’ Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 at 512 per Weinberg J.

     114. See for example Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No. 4) [2016] FCA 33 at [339]-[340].

     115. ALRM v South Australia (1995) 64 SASR 551.

164. It is not necessary for me to attempt to resolve that conflict. In the present case, the act of the defendant about which the plaintiff complains is the act of requiring him to speak English when being visited, pursuant to cl 101 of the Regulation. There is no evidence whatsoever that it is an act based on race, be it in the sense of an act done by reference to race, or an act done in which race is a material factor in the act being performed. Accordingly, irrespective of how the phrase “based on” might be interpreted, s 9(1) of the RDA has no application, and no issue under s 109 of the Constitution arises.

165. Finally, s 10(1) of the RDA operates to confer, upon persons who are discriminated against, the enjoyment of a relevant right to the same extent as it is enjoyed by persons of another race, colour or national or ethnic origin. [116] For the reasons I have previously expressed, I am not satisfied that the right asserted by the plaintiff is one which falls within s 10(1). Even if it did, the plaintiff’s action based on s 10(1) would fail. This is because there will be no breach of s 10(1) if a person does not enjoy a human right, or does so to a lesser extent, because of his or her individual personal circumstances. [117] In the present case, the fact that the plaintiff is required to speak English during visits arises from the personal circumstances of his being in custody.

     116. Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11 at 98 per Mason J (as his Honour then was).

     117. Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215 at [45] per Goldberg and Hely JJ.

166. Accordingly, s 10(1) of the RDA has no application and similarly no issue under s 109 of The Constitution arises.

CONCLUSION IN RESPECT OF THE RDA PROCEEDINGS

167. For the reasons set out, the RDA proceedings are dismissed.

ORDERS

168. I make the following orders:

1. Proceedings 2016/276127 are dismissed.

2. Proceedings 2016/276186 are dismissed.

3. Proceedings 2017/177196 are dismissed.

4. Proceedings 2018/41479 are dismissed.

5. The question of costs in all proceedings is reserved.

6. Absent agreement being reached as to costs:

1. the plaintiff is to file written submissions with my Associate, not exceeding three pages in length, by 1 May 2020.

2. the defendant is to file written submissions in reply with my Associate, not exceeding three pages in length, by 8 May 2020.

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Endnotes

Decision last updated: 22 April 2020