Hamzy v Commissioner of Corrective Services NSW

[2022] NSWCA 16

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16

Hearing dates:

3, 4 November 2021

Decision date:

23 February 2022

Before:

Bathurst CJ at [1];
Basten JA at [6];
Leeming JA at [92]

Decision:

1.    Extend time in which to seek leave to appeal from the judgment of the Common Law Division dated 22 April 2020 until 24 June 2021.

2.   Insofar as the summons relates to proceeding 2016/276127,

(1)   grant leave to appeal and dispense with the rules as to filing and service;

(2)   allow the appeal in respect of grounds 1, 2, 3 and 4 in the draft notice of appeal dated 28 May 2021;

(3)   set aside the judgment entered on 22 April 2020 dismissing the proceeding and in lieu thereof, declare that:

a. cl 94(3) of the Crimes (Administration of Sentences) Regulation 2014 does not authorise the Commissioner to refuse a visit to an EHRR inmate by a legal practitioner for any reason other than a criminal record check;

b.   the Commissioner’s “drop-in” policy of periodically monitoring telephone calls and AVL access to check whether (i) an EHRR inmate and the other person are speaking English and (ii) the other person is the approved recipient of the call, does not apply to communications between an EHRR inmate and that inmate’s legal practitioner;

(4)   set aside order (1) (as to costs) made on 15 May 2020.

3.   Insofar as the appeal is brought from proceeding 2016/276186,

(1)   grant leave to appeal; and dispense with the rules as to filing and service;

(2)   dismiss the appeal.

4.    Dismiss the notice of motion filed 14 September 2021.

5.    No order as to the costs in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – construction of regulations – validity of regulation – construction of regulation-making power – whether regulations which cut down common law rights authorised – grounds to refuse visits – application to communications with legal practitioners – Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 94

CONSTITUTIONAL LAW – inconsistency – State law having discriminatory impact on ethnic group – whether inconsistent with Racial Discrimination Act 1975 (Cth), ss 9, 10; Constitution, s 109

HUMAN RIGHTS – discrimination – grounds – racial discrimination – ethnic origin – restrictions on use of language – disparate impact – prison security – extreme high risk inmate – communications with family and lawyers – Racial Discrimination Act 1975 (Cth), ss 9, 10

PRISONERS – administration – supervision of visits and telephone calls – requirement to communicate in English – validity of Regulation – Commissioner’s monitoring policy – validity of policy – application to legal visits and communication with legal representatives – prisoners’ right to lawyer of choice and access to courts – whether criminal record check authorised – power to refuse visits by legal practitioners for any other reason

STATUTORY INTERPRETATION – regulation-making power – authorising regulations limiting common law rights – sufficiency of general words – administration of prisons – rights of access to courts and legal advice – Crimes (Administration of Sentences) Regulation 2014, cll 15, 101, 116, 119

Legislation Cited:

An Act to amend the Law affecting transported Convicts, with respect to Pardons and Tickets of Leave (1843) 6 Vict c 7

Anti-Discrimination Act 1977 (NSW), s 7; Pt 2

Civil Liability Act 2002 (NSW), Part 2A

Civil Rights Act 1964 (US), Title VII

Commonwealth Constitution, s 109

Crimes (Administration of Sentences) Act 1999 (NSW), ss 2A, 21, 55, 79, 190, 204, 232, 235, 235B, 271, 271A, Schedules 1, 2

Crimes (Administration of Sentences) Regulation 2001, cl 81

Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 15, 76-80, 82-84, 86, 91-104, 108, 110, 112, 113, 115-119A, 122

Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995, cl 92

Criminal Code Act 1983 (NT), s 181

Felons (Civil Proceedings) Act 1981 (NSW), s 3

Interpretation Act 1987 (NSW), ss 31, 32

Legal Profession Uniform Law (NSW), cl 78

Race Relations Act 1971 (NZ), s 25

Race Relations Act 1976 (UK), s 3

Racial Discrimination Act 1975 (Cth), ss 8, 9,10, 13-15; Pt II

Supreme Court Act 1970 (NSW), s 75A

Telecommunications (Interception and Access) Act 1979 (Cth)

Trade Practices Act 1974 (Cth), s 155

Universal Declaration of Human Rights

Cases Cited:

Abbas v NSW Commissioner of Police [2019] NSWSC 1841

Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551

Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; [1999] HCA 62

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44

Attorney-General (South Australia) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3

Azriel v NSW Land and Housing Corporation [2006] NSWCA 372

Baird v Queensland (2006) 156 FCR 451; [2006] FCAFC 162

Ballantyne v Canada UN Human Rights Committee, Communication 359, 385/1989 (31 March 1993)

Baybaşin v The Netherlands [2006] ECHR 690

Belcher v Deneen (1832) Dowl Sel Cas 168

Clark v Commissioner for Corrective Services [2016] NSWCA 186

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700; [2017] NSWCA 142

Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246

Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; [1978] HCA 54

Elliott v Minister Administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123

Esso Australia Pty Ltd v The Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54

Evans v State of New South Wales (2008) 168 FCR 576; [2008] FCAFC 130

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

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

Green v Woodroffe (1828) Dowl Sel Cas 106

Griggs v Duke Power Co 401 US 424 (1971)

Hamzy v Commissioner of Corrective Services [2020] NSWSC 414

Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8

Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44

Iliafi v The Church of Jesus Christ of Latter-day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26

John Holland Pty Ltd v Victorian WorkCover Authority (2009) 239 CLR 518; [2009] HCA 45

Jones v Scully (2002) 120 FCR 243; [2002] FCA 1080

Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181

King-Ansell v Police [1979] 2 NZLR 531

Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29

Lambert v Weichelt (1954) 28 ALJ 282

Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39

Leech, R (on the Application of) v Parkhurst Prison [1988] AC 533; [1988] UKHL 16

Mabo v Queensland (1988) 166 CLR 186; [1988] HCA 69

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

Mandla v Dowell Lee [1983] 2 AC 548

Mehmet Nuri Ӧzen v Turkey (2014) 58 EHRR 27

Miller v Wertheim [2002] FCAFC 156

Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565

Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27

Munkara v Bencsevich [2018] NTCA 4

Nguyen v Refugee Review Tribunal (1997) 74 FCR 311

Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74

Nusret Kaya v Turkey [2014] ECHR 408 (2nd Section) (No 43750/06 et al, 22 April 2014)

Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146

Patsalis v New South Wales [2012] NSWSC 267

Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R(Daly)v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532

R v Gardener and Yeurs [1829] Dowl Sel Cas 108

R v Home Secretary; Ex parte Simms [1999] QB 349

R v Khazaal [2006] NSWSC 1353; 167 A Crim R 565

R v Maloney [2012] QCA 105

R v Secretary of State for the Home Department, Ex Parte Pierson [1998] AC 539; [1997] UKHL 37

Raymond v Honey [1983] AC 1

Reed v Commissioner of Corrective Services [2008] NSWSC 161

Ren v Jiang (No 3) [2014] NSWCA 204

Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33

Rondel v Worsley [1969] 1 AC 191

Ruhani v Director of Police (No 2) (2005) 222 CLR 580; [2005] HCA 43

Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215

Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4

Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317

South Australia v Tanner (1989) 166 CLR 161

TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68

Técnicas Reunidas SA v Andrew [2018] NSWCA 192

Victoria v Commonwealth (1996) 187 CLR 416; [1996] HCA 56

Victoria v Macedonian Teachers’ Association of Victoria Inc (1998) 91 FCR 47; [1999] FCA 1287

Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49

Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28

Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56

Wotton v Queensland (No 5) [2016] FCA 1457

Texts Cited:

M Bilder, “The Corporate Origins of Judicial Review” 116 Yale Law Journal 502 (2006)

W Blackstone, Commentaries on the Laws of England (Bk IV, ch 29) (2016, Oxford University Press)

J Donnelly, “Judicial Review for the Convicted Felon in Australia - A Consideration of Statutory Context and the Doctrine of Attainder” (2012) 16(1) University of Western Sydney Law Review 137

European Convention for the Protection of Human Rights and Fundamental Freedoms, Arts 10(2), 14

International Convention on the Elimination of All Forms of Racial Discrimination, Arts 2, 5

International Covenant on Civil and Political Rights, Arts 19, 27

S Joseph and M Castan, The International Covenant on Civil and Political Rights (3rd ed, 2013, Oxford University Press)

D Meagher and M Groves, “The Common Law Principle of Legality and Secondary Legislation” (2016) 39(2) UNSWLJ 450

N Rees, S Rice and D Allen, Australian Anti-Discrimination & Equal Opportunity Law (3rd ed, 2018, The Federation Press)

W Sadurski, “Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn’t” (1986) 11 Syd Law Rev 5

R Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria (facsimile edition 1974 of 2nd ed 1863)

V Windeyer, “A Birthright and Inheritance” (1962) 1 U Tas Law Rev 635

Category:

Principal judgment

Parties:

Bassam Hamzy (Applicant)
Commissioner of Corrective Services New South Wales (First Respondent)
State of New South Wales (Second Respondent)

Representation:

Counsel:
Applicant in person
J Emmett SC, J Edwards (Respondents)
C O Gleeson, M Parker (Amicus Curiae)

Solicitors:
Crown Solicitor for New South Wales (Respondents)

File Number(s):

2021/181517

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 414

Date of Decision:

22 April 2020

Before:

Bellew J

File Number(s):

2016/276127, 2016/276186, 2017/177196, 2018/41479

HEADNOTE

[This headnote is not to be read as part of the decision]

The appellant, Mr Bassam Hamzy, is serving a sentence of full-time imprisonment in the High Risk Management Correctional Centre in Goulburn. He has been designated an “extreme high risk restricted inmate” (EHRR inmate) under the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Regulation). Clause 15 of the CAS Regulation authorises the Commissioner of Corrective Services to designate an inmate as an EHRR inmate if of the opinion that the inmate constitutes an extreme danger to other people or an extreme threat to good order and security, and 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.

Mr Hamzy brought four proceedings in the Supreme Court, Common Law Division challenging the lawfulness of aspects of the conditions of imprisonment to which he was subject as an EHRR inmate. Clause 94 of the CAS Regulation purported to empower the Commissioner to refuse to permit visits to EHRR inmates by any person, including lawyers, “on the basis of a criminal record check or for any other reason”. Pursuant to a “drop-in policy” implemented by the Commissioner, Corrective Services officers randomly monitored telephone calls made by EHRR inmates, including calls with legal practitioners, to determine whether they were being conducted in English and with the approved recipient. Additionally, cll 101, 116 and 119(6) of the CAS Regulation purported to require most communications by EHRR inmates to be in English. The primary judge dismissed each of the proceedings challenging the validity of these provisions and the drop-in policy.

Mr Hamzy appealed in respect to two proceedings. The principal issues before the Court were:

1. Whether cl 94 of the CAS Regulation, properly construed, applied to visits by lawyers, and if so whether it was invalid;

2. Whether the “drop-in policy” was unlawful in its application to telephone calls between EHRR inmates and their lawyers, and

3. Whether cll 101, 116 and 119(6) of the CAS Regulation were inconsistent with ss 9(1) or 10(1) of the Racial Discrimination Act 1975 (Cth) and for that reason invalid to the extent of the inconsistency by operation of s 109 of the Constitution (Cth).

The Court held, allowing the appeal in relation to issues (1) and (2) and dismissing the appeal in relation to issue (3):

As to issue (1), per Leeming JA, Bathurst CJ and Basten JA agreeing:

1. The regulation-making power in the Crimes (Administration of Sentences) Act did not authorise cl 94 insofar as it conferred on the Commissioner a general power “for any other reason” to refuse to permit an EHRR inmate’s chosen lawyer to visit: at [206]-[212], [220]-[238]. The power to require a criminal record check was authorised: at [202]-[205], [220]-[238].

Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 considered.

Elliott v Minister Administering Fisheries Management Act 1994 (2018) 97 NSWLR 1082; [2018] NSWCA 123; Attorney-General (South Australia) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3; Evans v State of New South Wales (2008) 168 FCR 576; [2008] FCAFC 130; Patsalis v New South Wales [2012] NSWSC 267 applied.

2. Applying s 32(2) of the Interpretation Act 1987 (NSW), the result was that cl 94 applied in its terms to all visitors save for legal practitioners, but in its application to legal practitioners was to be read down so that the words “or for any other reason” were omitted: at [254].

As to issue (2), per Leeming JA, Bathurst CJ and Basten JA agreeing:

3. Neither cl 119(6) nor any other source of power in the Act or CAS Regulation authorised the “drop-in policy” insofar as it applied to telephone conversations between an EHRR inmate and his or her legal practitioner: at [239]-[252]. The clause itself was however not invalid, and did not require reading down in accordance with s 32(2): at [255].

Discussion of the rights enjoyed by convicted inmates: at [167]-[182];

Raymond v Honey [1983] AC 1; Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27; Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 considered.

Discussion of the interaction between construction and validity: at [183]-[188];

Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246; Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700; [2017] NSWCA 142; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 applied.

As to issue (3), per Leeming JA, Bathurst CJ agreeing:

4. Having regard to the manner in which the case was conducted, there was no contravention of s 9 of the Racial Discrimination Act as there was nothing to suggest that the purpose of the requirement to use English in cll 101, 116 and 119 of the CAS Regulation had anything to do with discrimination: at [274].

5. Insofar as the appellant relied on s 10 of the Racial Discrimination Act, there was no other law which conferred a right enjoyed by persons of another race, colour or national or ethnic origin which, by dint of s 10, could be relied on by the appellant: at [274].

As to issue (3), per Basten JA, agreeing in the result for separate reasons:

6. Given the manner in which the case was run at trial, the primary judge was correct to dismiss the proceedings with respect to the Racial Discrimination Act, although the lawfulness of the provisions of the CAS Regulation challenged could not be determined on appeal: at [89]-[91].

7. An act imposing a constraint on the use of some or all languages may be an act which engages the operation of s 9 or s 10 of the Racial Discrimination Act because its adverse effects have a disparate impact on particular national or ethnic groups, but whether such an act is unlawful discrimination will depend on whether it has a legitimate purpose which is pursued by means which are not unreasonable: at [89]-[91].

Discussion of:

(a) the relevance of personal circumstances in identifying a breach of s 10 of the Racial Discrimination Act. The criminal law may be inconsistent with s 9 or s 10 of the Racial Discrimination Act if it has a disparate impact on particular ethnic groups; it is not immune from invalidation on the basis that it merely prescribes the consequences of a person’s actions or the circumstances of incarceration: at [22]-[42].

Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215; Nguyen v Refugee Review Tribunal (1997) 74 FCR 311; Munkara v Bencsevich [2018] NTCA 4; Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28; Baybaşin v The Netherlands [2006] ECHR 690 (Application 13600/02, 6 July 2006); Nusret Kaya v Turkey [2014] ECHR 153; Mehmet Nuri Ӧzen v Turkey (2014) 58 EHRR 27 considered.

(b) the meaning of the phrase “ethnic origin” in s 9 of the Racial Discrimination Act. A group of shared ethnic origin may be identifiable by a common language. Accordingly, a State law which precludes the use of a common language among members of such a group may involve a restriction based on ethnic origin: at [55]-[60].

King-Ansell v Police [1979] 2 NZLR 531; Mandla v Dowell Lee [1983] 2 AC 548 considered.

(c) the meaning of the phrase “based on race” in s 9 of the Racial Discrimination Act. The requirement for an act to be “based on race” relates not to any causal requirement, but connotes that the act be done or undertaken by reference to race: at [64]-[68];

Baird v Queensland [2016] FCA 1457; Macedonian Teachers’ Association of Victoria Inc. v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489; [1998] FCA 1650; Wotton v Queensland (No 5) [2016] FCA 1457 considered.

(d) the nature of the rights covered by s 9(2) of the Racial Discrimination Act. Language is a function of race, or national or ethnic origin, but the adoption of a single language of public administration is reasonable and justifiable so long as any disadvantage is ameliorated: at [69]-[88];

International Convention on the Elimination of All Forms of Racial Discrimination, Art 5; International Covenant on Civil and Political Rights, Arts 19, 27;

Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11; Mabo v Queensland (1988) 166 CLR 186; [1988] HCA 69 applied; Guesdon v France Human Rights Committee, Communication 219/1986; 25 July 1990; Fryske Nasjonale Partij v Netherlands (1985) 9 EHRR 240; Ballantyne v Canada UN Human Rights Committee, Communication 359, 385/1989 (31 March 1993); Iliafi v The Church of Jesus Christ of Latter-day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26 considered.

Judgment

BATHURST CJ

BASTEN JA

Issues raised

Racial Discrimination Act

(1) Pleading

(2) Operation of s 10

(3) Reasoning of trial judge

(4) Operation of s 9

The statutory scheme

“based on race”

“human right or fundamental freedom”

Conclusions

LEEMING JA

Factual background and procedural matters

Clause 94 of the CAS Regulation and its practical operation

Part 5 of the CAS Regulation

The reasons of the primary judge on cl 94

The parties’ submissions on cl 94

The appellant’s submissions

Respondents’ submissions

Submissions of the amicus curiae

The “drop-in policy”

Factual background

The reasons of the primary judge

The parties’ submissions on the drop-in policy

The appellant’s submissions

The respondents’ submissions

Submissions of the amicus curiae

Consideration

The rights enjoyed by convicted inmates

The interaction between construction and validity

Threshold question of construction: the interaction between cl 92 and cl 82

The legal and practical effect of cl 94 upon visits by legal practitioners

(a) criminal record check

(b) for any other reason

The regulation-making power

Is cl 94 authorised by the regulation-making power?

Conclusion on cl 94

Is the drop-in policy authorised?

Reading down

The claim based on the Racial Discrimination Act

The reasoning of the primary judge

The parties’ submissions on the Racial Discrimination Act

The appellant’s submissions

Respondents’ submissions

Consideration

Conclusion and orders

1. BATHURST CJ: I have had the advantage of reading the judgments of Basten JA and Leeming JA in draft.

2. Justice Leeming at [92] has referred to what he described as three broad issues raised on the appeal. In relation to the first two issues, I agree with his reasons and conclusions.

3. So far as the third issue is concerned, I agree with Basten JA and Leeming JA that s 10(1) of the Racial Discrimination Act 1975 (Cth) has no application in the present case as there was no other law which conferred a right enjoyed by a person of another race, colour or national or ethnic origin which by s 10 could be relied on by the appellant. In these circumstances, I would prefer not to express any views on the additional reasons given by Basten JA for dismissing the claim based on s 10.

4. So far as s 9 of the Racial Discrimination Act is concerned, I agree for the reasons given by Basten JA and Leeming JA that having regard to the manner in which the case was conducted, there is no contravention of that section as a purpose of the requirement to use English contained in the relevant regulations had nothing to do with discrimination.

5. In these circumstances I agree with the orders proposed by Leeming JA.

6. BASTEN JA: In 2016 the appellant, Bassam Hamzy, commenced two proceedings in the Common Law Division challenging the lawfulness of the conditions of imprisonment to which he was subject as an “extreme high risk restricted inmate”. He challenged both specific provisions in the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“Regulation”) and practices adopted by the Commissioner of Corrective Services (“Commissioner”). The Commissioner was (and is) the officer having statutory responsibility for the care, direction, control and management of all correctional centres in NSW and having the care, control and management of all offenders held in such centres. ^[1] The Commissioner and the State of New South Wales were joined as defendants at first instance and as respondents to the appeal.

   1. Crimes (Administration of Sentences) Act 1999 (NSW), s 232.

7. In October 2019 the 2016 proceedings and two more recent proceedings (commenced in 2017 and 2018 respectively) were heard by Bellew J, each being dismissed. ^[2] The two more recent proceedings were not the subject of the present appeal. The extensive delay in addressing the 2016 proceedings is troubling. The delay was exacerbated by the failure of the appellant to appeal for more than 12 months from the date of the judgment. However, as there was no objection by the respondents to the appellant being granted an extension of time, the circumstances giving rise to the delay were not explored in this Court. Importantly, both the legislative scheme and the administrative practices were said not to have changed over the period of some five years.

   2. Hamzy v Commissioner of Corrective Services [2020] NSWSC 414 (“Hamzy”).

8. With respect to the issues raised in what has been identified as the judicial review proceeding, I agree with the reasoning and conclusions of Leeming JA. With respect to the challenge raised under the Racial Discrimination Act 1975 (Cth) and s 109 of the Constitution, I agree that the proceeding was correctly dismissed by the trial judge, but prefer to state my own reasons for that conclusion, which differ from those of the trial judge. The nature of the challenge and the submissions have been summarised by Leeming JA. I agree with the orders proposed by Leeming JA.

Issues raised

9. As noted by the trial judge, the primary relief sought by the appellant was a declaration that cll 101, 116 and 119(6) of the Regulation were invalid. As State laws, to the extent that those provisions were inconsistent with either s 9 or s 10 of the Racial Discrimination Act, they were invalid by operation of s 109 of the Constitution (Cth). In the event that the premise of the proposed declaration was made good, consequential relief was sought restraining the respondents and relevant employees and officers from giving effect to those provisions of the Regulation.

10. Each of cll 101, 116 and 119(6) is set out by Leeming JA in full and need not be repeated here. ^[3] In summary, each relates to communications between an “extreme high risk restricted inmate” and another person. The effect of each is to require that communications be conducted in English, unless the Commissioner approves the use of “another language”, or otherwise authorises` the communication.

    3. See [111], [119] and [123] below.

11. The agreed facts on which these clauses of the Regulation were challenged included the fact that the appellant and his immediate family are Arabic speakers and communicate with each other at least partly in Arabic. In particular, the plaintiff’s parents do not have “very good English”. Some Arabic words were said to have no precise equivalent in English and the Arabic language was “essential to the practice of the Islamic faith.” The appellant himself is fluent in English, as was apparent from his conduct of the appeal.

12. Before turning to the scope and operation of the Racial Discrimination Act, three contextual propositions should be noted. First, as a prisoner, the appellant suffered a significant impairment of his individual liberty. That included the impairment of his ability to meet and communicate with friends and family. While the criminal law provides imprisonment as a penalty for an offence, rather than providing for the punishment of prisoners, this impairment of the freedom to contact others inhered in the penalty of imprisonment.

13. Secondly, each of the constraints on communication noted above was engaged because the appellant had been designated an extreme high risk restricted inmate. That designation was available under the Regulation, cl 15(3) of which provides:

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.

14. It was an agreed fact that the appellant was designated as an extreme high risk restricted inmate pursuant to this provision. That status turned on the opinion of the Commissioner as to the specified criteria. The agreed fact was as to the status, rather than that the appellant constituted such a danger or threat, or that the risk identified in par (b) was in fact engaged. Nevertheless, the terms of cl 15(3) would be relevant to the kinds of constraint on human rights protected under international law, such as maintaining ordre public or as being “necessary in a democratic society, … for the prevention of disorder or crime….” ^[4]

    4. See, eg, European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”), Art 10(2).

15. Thirdly, no reliance was placed on the prohibition of racial discrimination in Pt 2 of the Anti-Discrimination Act 1977 (NSW). There is no need, therefore, to address the interrelationship of that State Act and the Regulation made under another State Act.

Racial Discrimination Act

1. Pleading

16. The appellant’s claims under the Racial Discrimination Act were two-fold. First, he pleaded that the impugned clauses of the Regulation were “inconsistent with the right to equality before the law pursuant to s 10 of the Racial Discrimination Act”. Secondly, he pleaded that the clauses were “invalid by virtue of s 9 of the Racial Discrimination Act 1975 (Cth) and/or s 109 of the Constitution.”

1. Operation of s 10

17. Section 10 of the Racial Discrimination Act is entitled “Rights to equality before the law”. It assumes that a right enjoyed by persons of a particular race, colour or national or ethnic origin are enjoyed to a more limited extent by persons of another race, colour or national or ethnic origin. The rights of the latter are, by force of s 10, to be enjoyed to the same extent as by the former. Section 10 relevantly reads:

10   Rights to equality before the law

(1)   If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2)   A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

…

18. The term “the Convention” in subs (2) refers to the International Convention on the Elimination of All Forms of Racial Discrimination (the “Convention” or “CERD”), to which the Act gave effect as part of Australian domestic law. The result is that terms in the Act are to be construed having regard to their meaning in the international context from which they derive.

19. This provision can operate with respect to rights under state law, but it does not directly render a state law invalid. As Mason J explained in Gerhardy v Brown: ^[5]

“Section 10 is not aimed at striking down a law which is discriminatory or is inconsistent with the Convention. Instead it seeks to ensure a right to equality before the law by providing that persons of the race discriminated against by a discriminatory law shall enjoy the same rights under that law as other persons.”

5. (1985) 159 CLR 70 at 94; [1985] HCA 11.

20. Although not directly relevant to the present case, it is convenient to note that s 10 will not be contravened by a law which qualifies as a “special measure” protective of a minority. Section 8(1) provides:

8   Exceptions

(1)   This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).

21. In fact, no law was identified by the appellant as providing the rights which the appellant asserted he was denied; rather he relied on the differential operation of the clauses of the Regulation with respect to persons of different ethnic origins. Section 10 could have been put to one side on this basis as providing no support for the appellant’s case. However, the trial judge was, no doubt, cautious in dismissing a claim by an unrepresented litigant if it were to have an unarticulated basis in law.

1. Reasoning of trial judge

22. In rejecting the appellant’s reliance on s 10, the trial judge identified two problems in applying s 10. First, the judge was “not satisfied that the right asserted by the plaintiff is one which falls within s 10(1).” ^[6] As discussed below, there were problems with the judge’s formulation of the right relied on, which incorporated the discriminatory ground, but if there were a right arising under a state law which was limited in its availability on the prohibited ground (race), it would be likely to attract the operation of s 10. Unlike the rights and freedoms covered by s 9 (discussed below), it need not be a right in a field of public life, although that may not be a significant restriction. ^[7] The purpose of s 10 is to give effect to the mandate in Art 2.1(c) of the Convention to “nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.” It provides a legislated basis for “equality before the law”, as the title to the section proclaims. It is not confined to nullifying laws with an apparent discriminatory purpose. ^[8]

    6. Hamzy at [165].

    7. Gerhardy v Brown at 97 (Mason J).

    8. Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [105] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

23. Secondly, the judge reasoned that, “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. ^[9] 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.” ^[10]

    9. Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215 at [45] per Goldberg and Hely JJ. Footnote in Hamzy at [165].

    10. Hamzy at [165].

24. With respect, this reasoning cannot be accepted; nor, to the extent it finds support in Sahak v Minister for Immigration and Multicultural Affairs,^[11] on which the judge relied (quite properly, as it was a decision of the Full Court of the Federal Court), should that reasoning be followed.

    11. (2002) 123 FCR 514; [2002] FCAFC 215 (North, Goldberg and Hely JJ).

25. Sahak involved a challenge to s 478 of the Migration Act 1958 (Cth), which imposed a short, non-extendable period within which an asylum seeker refused a protection visa could obtain review by the Federal Court. Such a law may, in its practical operation, disadvantage non-English speakers in obtaining access to the courts. In rejecting the applicants’ claim that they had been denied equal treatment under s 10, Goldberg and Hely JJ stated:

“[45] But such discrimination or disadvantage as arose from the practical operation of s 478 of the Act was not racial discrimination in terms of the Convention or s 10 of the RDA. Section 478 of the Act does not deprive persons of one race of a right that is enjoyed by another race, nor does it provide for differential operation, depending upon the race, colour or national or ethnic original of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language barrier. There may be persons of another race whose first language is English, but who are inhibited in their enjoyment of the relevant right by reason of illiteracy or some physical infirmity or other impediment. Any differential effect which the application of s 478 of the Act produces is not based on race, colour, descent or national or ethnic [origin], but rather on the individual personal circumstances of each applicant.”

26. Aspects of this reasoning may be doubted. While it was true that the limitation period did not “provide for differential operation, depending upon the race … of the relevant applicant”, the joint reasons went further to consider whether it had a differential effect based on national or ethnic origin; that is, did the language barrier have the practical effect of impairing access to the courts for Afghani and Syrian applicants who therefore did not enjoy equal rights with those who are fluent in English? The joint reasons compared the applicants with persons who were fluent in English but who suffered illiteracy or some physical or other infirmity. That comparison was not apt, the examples not being protected characteristics. It is well-understood that the Racial Discrimination Act covers specific protected characteristics; others may be found in the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) and in State legislation.

27. The third member of the Court, North J, reasoned differently:

“[6] However, it is appropriate that I indicate a strong inclination to the view that s 478 would in those circumstances, as a practical matter, restrict the right of persons such as the appellants to access the right to challenge decisions of the Tribunal to an extent that persons of other national origins do not experience. In particular, to say that any differential impact is suffered not because of national origin, but rather as a result of individual personal circumstances, appears to me to adopt a verbal formula which avoids the real and practical discrimination which flows as a result of the operation of s 478.

[7]   Although arising in a different statutory context, the point may be illustrated by reference to the landmark decision of the Supreme Court of the United States of America in Griggs v Duke Power Co (1971) 401 US 424.

[8]   The question in that case was whether an employer's requirement that applicants for employment pass an intelligence test or hold a school diploma was an unlawful employment practice. Such a practice was a practice which deprived the applicant of an employment opportunity or adversely affected their status because of, inter alia, their race or colour. The requirement was shown to operate to disqualify Negroes at a substantially higher rate than white applicants. The reason was that Negroes had historically enjoyed much lower educational opportunities than whites.

[9]   It was not said that Negroes suffered discrimination by reason of their personal educational standards but rather by reason of race or colour. To approach anti-discrimination provisions in the former way would rob them of much of their intended force. Such a construction runs counter to the aims of such legislation.”

With respect, this reasoning is to be preferred and is consistent with other authority discussed below.

28. Similar arguments to those raised in Sahak had earlier been put to the Federal Court in Nguyen v Refugee Review Tribunal. ^[12] Nguyen was cited in Sahak, but only for the proposition that s 10 may be enlivened where the operation of a particular law is discriminatory although, on its face, it applies equally to all persons. ^[13] The trial judge in Hamzy, however, also found support in the reasoning of two members of the Court in Nguyen, Tamberlin J and Sundberg J. Tamberlin J stated: ^[14]

“In the present case, the right to ‘receive’ notice of a decision is not lessened by the fact that the notice is sent in the de facto official language of Australia, namely English. 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. It would be impractical and inefficient to notify all applicants of the decision in their mother tongue. By the letterhead and the form of the letter, a recipient in the situation of the appellant, upon receipt of the notice of decision, would have been reasonably alerted to the fact that it was an official document which called for translation or the seeking of further information.” ^[15]

12. (1997) 74 FCR 311 (Tamberlin, Sundberg and Marshall JJ).

13. Sahak at [37].

14. Nguyen at 319C.

15. See also Nguyen at 326-327 (Sundberg J).

29. The use of an official language in communications from and to government and in the course of the public administration of the law is one matter; the requirement that individuals use the official language in personal communications with each other is quite another matter and will be addressed below. It may be doubted that aspects of the reasoning in Nguyen and Sahak are consistent with the reasoning adopted in Maloney v The Queen ^[16] by the High Court (discussed below).

    16. (2013) 252 CLR 168; [2013] HCA 28.

30. The reasoning of the majority judges in Sahak was accepted in Munkara v Bencsevich,^[17] a decision of the Northern Territory Court of Appeal involving provisions of the (since repealed) Alcohol Protection Orders Act 2013 (NT). Orders could be made under that Act imposing restraints on access to alcohol where a qualifying offence had been committed. The claimant contended that the law, while facially neutral, operated disproportionately to the disadvantage of Aboriginal people in the Territory, causing them to enjoy certain rights to a more limited extent than persons of other races.

    17. [2018] NTCA 4.

31. Blokland J (with whom Kelly and Barr JJ agreed) referred to the factual premise of the claimant’s argument in the following terms:

“[101]   Counsel also asserted that ‘affectation by alcohol and race are very interrelated concepts when it comes to Aboriginal people in the Northern Territory’.

[102]   That contention is rejected. It adds nothing to the bare statement of the statistics, i.e. that Aboriginal people form about 27 percent of the population and have received over 90 percent of the alcohol protection orders. It could also be said that ‘serious domestic violence and race are interrelated concepts when it comes to Aboriginal people in the Northern Territory’ because the statistics are much the same. Put that way, the concept is simplistic and offensive. The appellant’s submission ignores the reality of deprivation and disadvantage that are the real matters referred to by the High Court in Bugmy and are well acknowledged to be important factors associated with criminal behaviour and alcohol and substance abuse. Further, it ignores the fact that most Aboriginal people do not abuse alcohol and that many non-Aboriginal people do.

…

[104]   Aboriginal people make up about 30 percent of the population of the Northern Territory yet make up more than 80 percent of the prison population. To take a further example, an Aboriginal person is statistically many times more likely than a non-Aboriginal person to be imprisoned for the offence of causing serious harm contrary to s 181 of the Criminal Code. Yet it could not be sensibly argued that by reason of s 181 of the Criminal Code Aboriginal persons enjoy the right to personal freedom to a more limited extent than persons of another race. The reason is obvious. Section 181 does not limit the right to freedom – it merely prescribes consequences for a person’s actions – as did the Alcohol Protection Orders Act.”

32. The operation of the criminal law considered in Munkara differed from the provision considered in Sahak. However, the reasoning, which appears to place a fence around criminal laws of general application, on the basis that any disparate impact on a particular ethnic group does not attract the operation of the Racial Discrimination Act, is not self-evidently correct. Nor is the “reality” of deprivation and disadvantage in Aboriginal communities a separate and independent factor. It provides the basis for many forms of intervention involving differential treatment of Indigenous peoples which fall within the exception for special measures under s 8 of the Racial Discrimination Act, or are not forms of racial discrimination at all because they do not disadvantage affected communities. ^[18] These programs and arrangements recognise that a characteristic of Aboriginal communities is that they suffer levels of deprivation and disadvantage, partly associated with the destruction of their traditional ways of life and of their association with traditional lands. These characteristics themselves derive from and reflect the ethnic origin of the affected community.

    18. See Maloney at [349]-[358]; Wojciech Sadurski, “Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn’t” (1986) 11 Syd Law Rev 5.

33. The criminal law is not immune from invalidation under the Racial Discrimination Act. A more principled approach to the disproportionate operation on Aboriginal communities of a provision such as s 181 of the Criminal Code Act 1983 (NT) (causing serious harm) referred to in Munkara, would be to uphold its operation as reasonable and justifiable because it was protective of the same (Aboriginal) communities in which the offences largely occur and thus protective of Aboriginal victims of offending. In other words, the disproportionate operation of aspects of the criminal law may require further analysis, rather than dismissal on the basis that the law “merely prescribes the consequences for a person’s actions”.

34. Maloney v The Queen ^[19] involved an offence under a Queensland law regulating possession of alcohol on Palm Island, an Aboriginal community. The law was not one of general application, but applied to Aboriginal communities. The law was held to be a “special measure” within s 8, and thus avoided contravention of s 10. ^[20] However, five members of the High Court (Kiefel J dissenting on this issue) held that, had it not been a special measure, it would have offended s 10. ^[21] Gageler J held that benign discrimination is not unlawful under the Convention or the Racial Discrimination Act. ^[22] The Court of Appeal had held that while the right to possess liquor in a public place invoked an aspect of the right to own property, that right was not absolute, but was subject to regulation in the public interest, and the impugned provisions imposed restrictions which were reasonable and legitimate to achieve the stated objectives of the legislation. ^[23] Thus the right to own property had not been infringed. That reasoning was rejected; French CJ stated:

“[38]   With respect to the Court of Appeal, its analysis in relation to the right to own property should not be accepted. The impugned provisions were directed at an Indigenous community. It is not a sufficient answer to the appellant's complaint about those provisions that she was not deprived of her property and that property rights are frequently qualified by regulation, especially in the case of alcohol. In this case, the impugned provisions had the effect that Indigenous persons who were the Palm Island community, including the appellant, could not enjoy a right of ownership of property, namely alcohol, to the same extent as non-Indigenous people outside that community. The impugned provisions effected an operational discrimination notwithstanding the race-neutral language of s 168B of the Liquor Act, under which the appellant was charged.”

19. Above at fn 16.

20. Maloney at [47] (French CJ), [110] (Hayne J), [139] (Crennan J), [188] (Kiefel J), [253] (Bell J), [375] (Gageler J).

21. Maloney at [38] (French CJ), [85] (Hayne J), [112] (Crennan J), [229] (Bell J), [379] (Gageler J).

22. Maloney at [347].

23. R v Maloney [2012] QCA 105.

35. Hayne J stated: ^[24]

“[84] It is important to recognise that, even though the impugned provisions take geographical place as the criterion for their operation, they deal with the rights of persons. When it is said, correctly, that the impugned provisions apply equally according only to whether a person is in a restricted area on Palm Island, it remains of the very first importance to the application of the RDA to recognise that the effect of the impugned provisions is on the rights of those who live on Palm Island (and any other person who is visiting Palm Island). Those who live on Palm Island are overwhelmingly Aboriginal persons. The extent to which the residents of Palm Island enjoy the right to own property differs from the extent to which persons resident elsewhere in Queensland enjoy that right, and argument in this Court proceeded on the implicit footing that those who are resident elsewhere are predominantly non-Aboriginal persons. Unless s 8(1) of the RDA applies, s 10 is engaged.

[85] This conclusion neither proceeds from the premise nor entails the conclusion that the appellant has a universal right to possess or consume liquor. The appellant rightly disclaimed any right of that kind. Section 10 does not entail that those affected by the impugned provisions, who are predominantly Aboriginal persons, have any absolute right to possess or consume liquor. Rather, unless s 8(1) applies, those Aboriginal persons are entitled to enjoy the right to possess or consume liquor to the same extent as non-Aboriginal persons.”

24. Crennan J at [112] agreed with his reasons on this issue.

36. Bell J resisted importing a ‘reasonable and legitimate purpose test’ as a defence to reliance on s 10:

“[214] Nothing in the text of s 10 interpreted in its statutory context warrants reading the provision as engaged only by a law that limits the enjoyment of rights for a purpose that is not ‘legitimate’ or in a manner that is disproportionate to the achievement of a ‘legitimate’ purpose. Section 8(1) is the means by which laws may validly provide for the differential enjoyment of Convention rights based on race in order to secure substantive equality.”

37. Gageler J dealt with the concept of unequal enjoyment of a right as justifiable by treating holistically the concepts of equality in s 10 and special measures under s 8 in order to give effect to the statutory intention to implement the Convention. Gageler J concluded:

“[346]   The critical point for present purposes is that consistency with the principles and objective of the Convention limits those legislative aims that can be regarded as legitimate and limits those legislative criteria that can be regarded as proportionate. In particular, the range of legitimate aims and the range of proportionate criteria are limited by the integration of the concept of special measures within the broader concept of equality in the enjoyment of human rights.

[347]   Within the scheme of the Convention, a measure that operates in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race may be justified as adopting proportionate criteria in pursuit of an aim of redressing some other imbalance in the enjoyment of human rights by persons of a particular race. But such a measure can only be so justified if it meets the requirements of a special measure as expressed in Arts 1(4) and 2(2) of the Convention. If justified as a special measure, it is not discrimination within the meaning of the Convention. If not justified as a special measure, it is discrimination and a denial of equal protection.

[348] Within the scheme of Pt II of the RDA, a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, and that meets the requirements of a special measure, is excluded from the application of s 10 by s 8 of the RDA. The application of s 10 to a law that operates directly in fact to result in persons of one race enjoying a human right to a more limited extent than persons of another race, but that does not meet the requirements of a special measure, cannot be avoided by showing that the criteria the law adopts are nevertheless proportionate or reasonably necessary to the pursuit of a legitimate aim where the substance of the aim is redressing some other imbalance in the enjoyment of human rights by persons of a particular race. Otherwise, the carefully tailored regime for permissible special measures would be undermined. Unless it is a special measure excluded by s 8, the law is one to which s 10 applies.”

38. The approach of Gageler J has much in common with the reasoning of Professor Sadurski that beneficial or protective laws are not discriminatory within the Convention. However, this reasoning leaves unresolved the proper approach to laws which may have a legitimate purpose (such as national security or public order), but have a discriminatory effect. Arguably, this was the preferable way to consider the appellant’s case, but it was not addressed in this way at trial, or in this Court.

39. To attribute the effects of the clauses of the Regulation impugned by the appellant to “the personal circumstances of his being in custody”, would be analogous to dismissing Ms Maloney’s claim on the basis that the adverse operation of the law was attributable to her residing on Palm Island. Such an approach cannot be sustained. Even if the judge’s reason were an elliptical reference to the restrictions being justified by the circumstances of the appellant’s incarceration, that would involve a rejection of the core of the reasoning as to justification adopted in Maloney.

40. Further, if that basis of the judge’s reasoning as to the non-engagement of s 10 were applied, it would seem that any racially discriminatory treatment of prisoners would be beyond the protection of s 10. But that would contradict the uniform approach of international bodies to such cases. This Court was taken to three decisions of the European Court of Human Rights dealing with complaints by prisoners. The first, Baybaşin v The Netherlands,^[25] involved a Turkish national challenging the circumstances of his incarceration. One aspect involved a complaint that he was not allowed to communicate with close relatives in Kurmancî (a Kurdish dialect), which was said to involve an unjustified interference with his right to respect for his family and private life under Art 8 of the European Convention on Human Rights (“European Convention”). ^[26] Article 8 was subject to a requirement that a public authority not interfere with the right to respect for private and family life “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The case bears a close relationship to the facts of the present case in that the prisoner was held in a high security establishment (EBI).

    25. [2006] ECHR 690 (Application 13600/02, 6 July 2006).

    26. Ibid, p 23.

41. The European Court noted that: ^[27]

“Candidates for placement in the EBI include: prisoners who have escaped or attempted to escape through violent means; those who have displayed violence against prison staff; organised crime leaders, whose organisations have the means to help them to abscond; and prisoners whose escape would cause a major public outcry.”

After noting that incarceration “by its nature entails limitations on a detainee’s private and family life”, the Court continued: ^[28]

“The Court notes that this prohibition [on use of Kurmancî] was based on the [1999] Prison Act and the EBI house rules, the latter providing that, in contacts with the outside world, detainees in the EBI can only use a limited number of languages, ie Dutch, English, French, German, Spanish, Italian, Turkish or Moroccan. The Court considers that the prohibition was thus ‘in accordance with the law’. It further has found no reason to doubt that the prohibition was aimed at the prevention of disorder or crime and was therefore in pursuit of a legitimate aim under Article 8(2).

As to the question whether the prohibition was necessary in a democratic society, the Court notes that, under the EBI detention regime, detainees are allowed, within certain constraints, contacts with the outside world but that – with the exception of privileged contacts – all correspondence and telephone calls are screened for security reasons, and that, in order to enable an adequate supervision of such contacts, detainees are only allowed to use a limited number of specifically designated languages, including Turkish. The Court further notes that the security measures in the EBI are designed to prevent escapes and that the screening of detainees’ contacts with the outside world is aimed at ensuring that detainees do not obtain or exchange information relating to any escape attempt…. Further noting the reasons given by the Appeals Board in its decision of 22 January 2004 for rejecting the applicant’s complaint about being prohibited to use Kurmancî in his contacts with his relatives, and considering that it has not been established that it would be impossible for the applicant to use Turkish or any other permitted language in his contacts with his family, the Court cannot find that an unreasonable balance was struck between the applicant’s right to respect for his family life and correspondence and the authorities’ interest in maintaining the strict EBI security rules.”

The complaint was rejected.

27. Ibid, fn 14.

28. Ibid, p 28.

42. A second case, Nusret Kaya v Turkey, ^[29] considered a complaint that the Republic of Turkey prevented prisoners using the Kurdish language in their telephone conversations. A third case, Mehmet Nuri Ӧzen v Turkey, ^[30] involved a prohibition on the use of Kurdish in written correspondence by prisoners to their families. These cases are less apposite as they concerned rules applying to the prison population at large and were not sought to be justified as relating to high risk security concerns. Further, as with Baybaşin, they involved the right to respect for family and private life and were not directly concerned with a linguistic freedom. However, in each case a claim of a violation of Art 8 was upheld. Their reasoning mirrors that in Baybaşin. This reasoning is, arguably, available in considering the operation of s 10, which is not restricted to specific rights, but, as has been noted, was not raised in the present case.

    29. [2014] ECHR 408 (2nd Section) (No 43750/06 et, al 22 April 2014).

    30. (2014) 58 EHRR 27 at [50]-[59].

43. The trial judge’s central reason for rejecting the engagement of s 10 lay in his identification of the right in question. That issue may now be further addressed in the context in which it was determined, namely the operation of s 9.

1. Operation of s 9

The statutory scheme

44. As the appellant contended, s 9, in contrast to s 10, in combination with s 109 of the Constitution, can operate to invalidate an inconsistent State law. The analysis of this element of the appellant’s claims should commence with the language of s 9, which relevantly provides:

9   Racial discrimination to be unlawful

(1)   It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A)   Where:

(a)   a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b)   the other person does not or cannot comply with the term, condition or requirement; and

(c)   the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

(2)   A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

…

(4)   The succeeding provisions of this Part do not limit the generality of this section.

45. The focus of the argument, both in this Court and in the Court below, was upon s 9(1) and (2). However, to understand the structure and operation of the Act it is necessary to have regard also to s 9(1A) and (4). Section 9(1) refers to an act which has “the purpose or effect” of impairing the exercise of a human right. The phrase “purpose or effect” encompasses both disparate treatment (sometimes described as direct discrimination) and disparate impact (sometimes described as indirect discrimination). A clear example of a statutory formulation designed to address disparate impact discrimination is to be found in s 9(1A). The separate statement in subs (1A) raises an issue as to the scope of subs (1). If, as suggested below, the appellant’s case was in truth one of disparate impact discrimination, the relationship between these two subsections is important. It was not addressed in the course of argument.

46. The impugned act involved the imposition of a requirement that prisoners’ communications with all visitors must be in English. While the prohibited ground is not narrowly defined (“race, colour, descent or national or ethnic origin”), it does not expressly advert to language. ^[31] Language could be treated as “a characteristic that appertains generally to persons of that race”, as provided by s 7(2) in the definition of discrimination on the ground of race in the Anti-Discrimination Act 1977 (NSW), but such language does not appear in s 9. Perhaps because of the limitations on the protection granted by s 9(1A) (for example, the requirement must be “not reasonable having regard to the circumstances of the case”), it was not pursued by the appellant. The question remains how, if at all, a requirement to speak English may fall within s 9(1).

    31. Cf European Convention on Human Rights, Art 14.

47. The insertion of subs (1A) in s 9, without amendment to s 9(1), requires careful attention. The reference in s 9(1) to an act based on race which has “the purpose or effect” of nullifying or impairing the enjoyment of a human right is readily understood as covering both disparate treatment (purpose) and disparate effect. In 1971 the US Supreme Court held in Griggs v Duke Power Co ^[32] that “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Similarly, the imposition of a criterion which operated as an artificial, arbitrary and unnecessary barrier to employment was equally impermissible under Title VII of the Civil Rights Act 1964 (US). In Griggs, an employment case, the Supreme Court held: ^[33]

“The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”

32. 401 US 424 (1971).

33. Griggs at 431.

48. The effect of s 9(1A) is to impose a test of reasonableness on a condition or requirement which may be neutral on its face. (The inclusion in par (c) of a requirement that has “the purpose … of nullifying or impairing” suggests a complete overlapping of subss (1) and (1A), which may not have been intended.) The test of business necessity referred to in Griggs, which may be applicable under subs (1), is generalised, and perhaps weakened, by the test of “not reasonable” in subs (1A). Further, the introduction of subs (1A) tended to obscure a third possibility, namely that a purportedly neutral ground for taking particular action may mask an intention based on race.

49. Part II of the Racial Discrimination Act, in addition to ss 9 and 10, includes a number of provisions identifying particular areas of activity within which racial discrimination is prohibited. These include access to places and facilities (s 11), interests in land and places of accommodation (s 12), the provision of goods and services (s 13), the right to join trade unions (s 14) and employment (s 15). Relevantly for present purposes, s 13 renders it unlawful for a person to supply services to any section of the public on terms which are less favourable than those on which it supplies those services to other persons by reason of the race of the other person or “of any relative or associate of that other person.” It may have been arguable that, in providing prisoners with space and time within which they could receive visits, and in providing telephone facilities for communicating with lawyers and friends and relatives, the Commissioner was providing a service within the terms of s 13. Again, arguably, the English-speaking requirement had the effect of providing such services on terms which were less favourable for those who, by reason of their ethnic origins, were less able to comply with the requirement than persons who were native English speakers. However, no reliance was placed on s 13 and, as the effect of s 13 is not to limit the generality of s 9, although it may expand the operation of the legislation beyond the coverage given by s 9, it is not necessary to consider the operation of s 13 further. Certainly there is no reason to limit the operation of s 9 by reference to s 13.

50. As has been noted in the cases, the application of s 9(1) requires attention to its several elements. ^[34] These may be identified, relevantly for this case, as follows:

    34. Iliafi v The Church of Jesus Christ of Latter-day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26 at [44] (Kenny J, Greenwood and Logan JJ agreeing).

1. the doing of an act;

2. the act:

1. being intended to restrict, or

2. having the effect of restricting,

the claimant’s enjoyment of a human right or fundamental freedom;

3. the restriction being selective and based on “race”, in the sense of national or ethnic origin; and

4. the human right or fundamental freedom being of a kind covered by the Convention.

51. It is unnecessary, and may be confusing, to address these elements in the order set out above, which is indeed not the order in which they appear in s 9 itself. It may even be thought inappropriate to formulate issues in this way. As Mortimer J explained in Wotton v Queensland (No 5): ^[35]

“[530]   It is critical, as Allsop J observed in Baird v Queensland,^[36] that provisions such as s 9(1) not be dissected into small pieces so that their intended holistic operation and meaning are lost. To describe s 9(1) in terms of a series of ‘elements’, as the respondents’ submissions do, is to take a step along the path to dissection. Nevertheless, s 9(1) can be seen as having a conduct-based limb and an outcome-based limb. First, there must be an act involving a distinction, exclusion, restriction or preference which is based on race, colour, descent or national or ethnic origin. This is the conduct-based limb. Second, the act (in the expanded character given to it by the first limb) must have either the purpose or the effect of nullifying or impairing a human right. This directs attention to the actual outcome of the act, if ‘effect’ is the focus; or on what was intended, in a purposive sense, to be the outcome, if ‘purpose’ is the focus.”

35. [2016] FCA 1457.

36. (2006) 156 FCR 451; [2006] FCAFC 162.

52. There is, nevertheless, a helpful discipline in understanding the different elements to be addressed. In the present case, there was no dispute that the restriction was imposed under the Regulation, and it appears to have been common ground that the promulgation of the Regulation constituted an “act” for the purposes of s 9(1). However, the preferable analysis may be that the State Regulation cannot authorise the doing of any act to enforce a restriction which is unlawful under a Commonwealth law. ^[37] The nature of the restriction was not in doubt.

    37. See Gerhardy v Brown at 121 (Brennan J).

53. This dissection invites the observation made by Allsop J (Spender and Edmonds JJ agreeing) in Baird v Queensland: ^[38]

“[37] … The pleading can be seen to conflate two separate elements of s 9: (i) the act must involve a distinction; and (ii) that act involving the distinction must be based on race. … [I]n fairness to the pleader, one must be careful to recognise that s 9(1) is one whole section and not a sum of finite elements. The provision is to be interpreted in a holistic way rather than by reference to disembodied individual elements.”

There is undoubtedly a degree of artificiality in treating separately the concept of “race”, the scope of the connecting factor “based on”, and the nature of the “right”; nevertheless, there is merit in addressing each on a preliminary basis.

38. See fn 36.

54. The concept of race is important, because the restriction concerns use of language, and there is no express reference to “language” in Art 2 of the Convention. However, the Convention was in fact preceded by the European Convention, Art 14 of which expressly included a reference to “language”:

ARTICLE 14

Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

55. The Convention, limited to “racial discrimination”, identified distinctions based on “race, colour, descent, or national or ethnic origin”, omitting other possibly related terms, including “language”, but adding “descent”. However, the concept of racial discrimination is not marked by clear boundaries, nor specific criteria. The term “race” itself is notoriously imprecise. Both the Convention and the Racial Discrimination Act refer to national or ethnic origin. In the leading Australian text on discrimination law, Rees, Rice and Allen, state: ^[39]

“The term ‘ethnic origin’ has been held to have a social rather than biological meaning. The case law indicates that, in order for a collection of people to qualify as an ‘ethnic group’ for the purposes of the term ‘ethnic origin’, the members of the group must have a distinct social identity, both in their own eyes and in the eyes of others in the community, which is derived from that group and has a number of shared longstanding characteristics, such as customs, beliefs and traditions, drawn from a common history. It appears that there need not be any shared religious affiliation even though most groups which have been found to constitute an ‘ethnic group’ have been people with a common religion, or at least a common religious heritage.”

39. Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination & Equal Opportunity Law (3rd ed, 2018, The Federation Press) at [5.4.14].

56. This statement may be supported by reference to two cases, the first being the decision of the New Zealand Court of Appeal in King-Ansell v Police. ^[40] Mr King-Ansell was the leader of the National Socialist Party of New Zealand and was responsible for publishing inflammatory anti-Semitic propaganda. He was convicted of using words likely to excite hostility or ill-will against a group of persons on the ground of “the colour, race, or ethnic or national origins of that group of persons.” ^[41] On the appeal, noting “the depth of Jewish history and the unbroken adherence of Jews to culture, traditions and a mutually intelligible language, as well as religion”, Woodhouse J stated: ^[42]

“It happens that some evidence was given in the present case by a Dr MacPherson who spoke as a sociologist concerning the modern connotations of the word ‘ethnic’. However, he also has qualifications in the field of anthropology and influenced perhaps by that second training, he began by discussing difficulties that had arisen in scientific circles by reason of the several meanings of the primary word ‘race’. He said that to avoid confusion it had been thought necessary ‘to tie it to some scientific referent which happens to be genetics’. … He went on: ‘A scientific referent for race is the most satisfactory because it gets beyond the problem of common usage and the confusion which arises from that. No doubt all this is very true but I think myself that the evidence may have tended to divert attention from the true issue in the case. The issue, of course, is not the meaning which very wisely may have been given to the concept of race for purposes of comprehensible scientific discussion but what meaning the word is intended to convey in the statute. In that regard it will be noticed that Dr MacPherson himself has recognised that the word has a ‘common usage’, as he expressed it. And that common usage has for long enabled constant reference to be made to biologically different people as a single race. For example, it is a natural use of the word to speak of the English race or the Slavs as a race or of Germans. It is a meaning which is concerned, not with genetic processes, but with share characteristics of a socio-political nature such as customs, philosophy and thought, history, traditions, nationality, language or residence without any reference to biological considerations. And when the purpose and language of the Race Relations Act is considered as a whole I am satisfied that is the way in which the term is intended to be used.”

40. [1979] 2 NZLR 531.

41. Race Relations Act 1971 (NZ), s 25(1).

42. King-Ansell at 536.

57. Richardson J, referring to and adopting a dictionary meaning of “ethnic” as “of or relating to a particular population having a common language or common racial or cultural origins”, ^[43] concluded: ^[44]

“Those shared historical bonds to which he referred are sufficient to constitute national origins. In the same way a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group.”

43. King-Ansell at 540.

44. King-Ansell at 543, after referring to a graphic description by Lord Simon of Glaisdale as to why Scotsmen constitute a nation and have retained their national origins.

58. The second case concerned the identification of Sikhs as a “racial group” for the purposes of the Race Relations Act 1976 (UK). Section 3(1) of that Act defined “racial group” as a group defined by reference to “colour, race, nationality or ethnic or national origins”. In Mandla v Dowell Lee,^[45] accepting that Sikhs were a racial group for the purposes of the Act, Lord Fraser of Tullybelton stated: ^[46]

“For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.”

Lord Fraser expressly approved the approach of the New Zealand Court of Appeal in King-Ansell. ^[47]

45. [1983] 2 AC 548.

46. Mandla at [562].

47. Mandla at [563].

59. Findings to similar effect have been made in both the Federal Court and this Court. Hely J approved the reasoning in King-Ansell and Mandla in Jones v Scully,^[48] as did the Full Court of the Federal Court in Miller v Wertheim. ^[49] This Court accepted that Jews constitute a “race” for the purposes of the definition in the Anti-Discrimination Act 1977 (NSW), based upon the phrase “ethnic origins”, in Azriel v NSW Land and Housing Corporation. ^[50]

    48. (2002) 120 FCR 243; [2002] FCA 1080 at [111]-[112].

    49. [2002] FCAFC 156 at [14].

    50. [2006] NSWCA 372 at [47].

60. Given the inclusion of the phrase “ethnic origin” in s 9(1) of the Racial Discrimination Act, and given the agreed fact that the appellant identifies as being “Arab in ethnic origin” and that he and his immediate family are Arabic speakers, a State law which precludes them speaking Arabic amongst themselves involves a restriction based on ethnic origin and thus satisfies the first limb of s 9(1) of the Racial Discrimination Act.

61. The next question is whether the imposition of the restriction had either the purpose, or the effect, of impairing the enjoyment of a human right or fundamental freedom. In answering the first limb of that question (distinguishing purpose or effect), it is necessary to confront the separate criteria identified in s 9(1) and s 9(1A).

62. Despite the repetition of the phrase “purpose or effect” in par (c) of subs (1A), the subsection is clearly directed to an act involving the imposition of a “term, condition or requirement”, as opposed to an act which directly excludes or restricts persons of a particular race (including a particular ethnic origin). The purposive element (disparate treatment) is not apparent in the present case. Many persons of diverse ethnic groups, including many of Arabic ethnicity, are able to comply with the language requirement and are unaffected by it. However, some persons are unable to comply. The circumstances are thus similar to those which arose in Mandla v Dowell Lee, where the school authority did not exclude Sikhs, but did require that boys should cut their hair short and not wear turbans. Some Sikhs might be willing to comply with the rule, but the parents of the boy concerned would not comply. The case therefore turned upon whether the school authority could justify the rule: the House of Lords concluded that it had failed to do so. Analogously, in the present case, the clauses of the Regulation which require use of English in communication involve the imposition of a requirement for the purposes of s 9(1A). It may be accepted that, in so far as the Regulation applies to the appellant in his communications with members of his immediate family, he either does not or cannot comply fully with the terms of the requirement. His communications are to that extent impaired. However, the requirement will only contravene the prohibition in s 9(1A) if it is “not reasonable having regard to the circumstances of the case”, within the terms of par (a).

63. As the case was run at trial, no reliance was placed by either party on s 9(1A). There was no consideration as to whether the English language condition was “not reasonable”, nor, indeed, as to which party bore the onus of proof in that regard. No reliance was placed on the operation of subs (1A) on the appeal. The question of reasonableness would depend in part on the evidence as to the operation of the Regulation. Each of the clauses under challenge involved a prohibition subject to a power in the Commissioner either to authorise the use of a particular language or to waive the operation of the clause in particular circumstances. The operation of these exceptions might have an important bearing on the reasonableness of the requirements as set out in the impugned clauses. Similarly, the fact that, at least in relation to communication with members of his family, the purpose of the language requirement was to allow the authorities to monitor communications, it would be necessary to consider the reasonableness of that requirement in the context of a person deemed to be an extreme high risk restricted inmate. Again the issue was not agitated either at trial or on the appeal. Accordingly, the question of compliance with subs (1A) cannot be resolved.

225. However, the respondents also pointed, correctly, to the statements of this Court in Elliott at [35] and [40] that it is incorrect to say that the clear statement principle has any overriding operation and that it remains necessary to give effect to the text of the statute, read in context and having regard to its apparent purpose.

226. Elliott also confirms that the principle for determining the validity of delegated legislation is Attorney-General (South Australia) v Adelaide City Corporation. On this issue, and on the significance of the judgments of French CJ and Heydon J in that decision, and of the Full Federal Court in Evans v State of New South Wales (2008) 168 FCR 576; [2008] FCAFC 130, I have been assisted by an article by D Meagher and M Groves, “The Common Law Principle of Legality and Secondary Legislation” (2016) 39(2) UNSWLJ 450.

227. French CJ invoked the principle of legality in an examination of whether the by-law in Attorney-General (South Australia) v Adelaide City Corporation was a “reasonable and proportionate, and therefore valid, exercise of the by-law making power” (at [43]). However, Hayne J (with whom in this respect Bell J agreed) rejected any recourse to whether the by-law was a reasonable or proportionate response, endorsing in a passage at [122]-[123] the approach taken by Brennan J in South Australia v Tanner (1989) 166 CLR 161 at 178-179. Crennan and Kiefel JJ favoured an approach which appealed to proportionality (at [201]) but their Honours proceeded directly to examine the implied freedom in respect of political communication. It may be noted that the rule-making power in issue was a purposive power (see at [10]) to which proportionality reasoning may have been more apt. In Orellana-Fuentes v Standard Knitting Mills Pty Ltd at [104] the point was made that the regulation making power in that appeal was not a purposive power such as that considered in Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4, but rather raised the question “whether there is a real and substantial connection between the delegated legislation and the subject matter of the grant of power”. Section 271 of the Crimes (Administration of Sentences) Act is a broadly worded regulation-making power, not expressed in terms of purpose.

228. Heydon J’s conclusion was that the by-law making power was expressed in words which were “too general, ambiguous and uncertain to grant a power to make by-laws having the adverse effect on free speech of the challenged clauses”: at [158], and for that reason his Honour did not reach the implied freedom. He dissented in the result. Nonetheless, that approach resembles the reasoning in Patsalis summarised above.

229. The reasoning in Patsalis also resembles the approach taken by a Full Court of the Federal Court in Evans at [67]-[84], where a regulation-making power expressed in terms of “regulating ... the conduct of the public” was held not to authorise a regulation preventing the exercise of free speech that amounted to expressions of opinion which neither disrupted nor interfered with the freedoms of others and which were not objectively offensive in the sense traditionally used in State criminal activities: at [83]. The regulation conferred a power to direct a person in a declared area to cease engaging in conduct that “causes annoyance or inconvenience to participants in a World Youth Day event”, with failure to comply with a direction without reasonable cause being an offence. The Court concluded at [83] that “Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed”.

230. Just as in Patsalis, the Full Court read down the effect of general words upon basal common law rights. Evans is especially apt, insofar as it concerns a generally worded regulation-making power.

231. Applying the principles summarised above to the non-purposive regulation-making power conferred by s 271, the approach in Evans accords with the general presumption of non-interference stated in this Court in Patsalis. It may fairly be said that a regulation which reserves to the Commissioner a broad right to deny EHRR inmates face-to-face access to the legal practitioner of their choice is not comprehended by the general words of s 271 authorising regulations for conditions upon visitors.

232. The context of prison regulation, and in particular the regulation of EHRR inmates, is that there may be expected to be legal practitioners visiting EHRR inmates for the purposes of defending serious criminal charges, or appealing from their convictions of serious criminal charges. That context brings the right to a lawyer of one’s own choice, with whom an inmate can have a legally privileged confidential conference, to the forefront. Yet absent from the long list of subject matters enumerated in s 79(1) is any power to impair either of those important rights. Nor does s 271A (which is specific in relation to high risk inmates) go further to authorise regulations applicable to EHRR inmates which materially detract from their right to legal representation of their choice. That is in circumstances where, as Ms Gleeson who appeared as amicus submitted, the regulation-making power descends to details such as the way in which face coverings may be removed to confirm a visitor’s identity. In short, the absence of any conferral of power to make regulations which materially diminish an inmate’s right to the lawyer of his or her choice is conspicuous.

233. Further submissions were made based on the objects of the Crimes (Administration of Sentences) Act, which commence in s 2A(1)(a) with ensuring that “those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment”. It was said to be foreign to that purpose to curtail inmates’ rights to the lawyer of their choice and to privileged communications with that lawyer. EHRR inmates are among those most likely to require legal representation. The submission is not free from difficulty because of s 2A(3), which provides that “Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings”. If that subsection bears its literal meaning, it is self-defeating: regard cannot be had to the section including subsection (3), and so it can be safely put to one side. If s 2A(3) is given a correcting meaning, so that it is understood as meaning that “nothing in s 2A(1) or (2) ... can be taken into account in any civil proceeding” then it raises a large question whether one provision of a statute can dictate the answer to a question of statutory construction. That was not the subject of argument, but I incline to the view that s 2A(3) falls within the description given in John Holland Pty Ltd v Victorian WorkCover Authority (2009) 239 CLR 518; [2009] HCA 45 at [20], namely, “a statement of intention which informs the construction of the Act as a whole” but which cannot be dispositive of the issue. The process of statutory construction requires regard to be had to the whole of the text and the context, and the insertion of a statement of conclusion such as s 2A(3), while material to the analysis, cannot be dispositive. The position is no different in private law. Thus even if parties by their contract agree that nothing gives rise to a relationship of employment, that cannot be dispositive: Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [58]. It is not necessary to analyse this point any further. No differently from most issues of statutory construction, this appeal does not turn on considerations of general purpose, but rather upon the text of the provisions in their context, and the application of settled principles of statutory construction.

234. For those reasons, although the regulation-making power is not confined to the subject matters in s 79 but extends to matters which are necessary or convenient for carrying out or giving effect to the statute, that power is not to be construed as authorising a regulation which materially cuts down the right to a lawyer of one’s choice.

Conclusion on cl 94

237. The conclusion that cl 94 is not authorised insofar as it confers a general power “for any other reason” upon the Commissioner to refuse to permit an EHRR inmate’s chosen lawyer to visit means that it is necessary to revisit the working hypothesis that cl 94 applies to legal practitioners, in accordance with the interpretative rule in s 32(1) of the Interpretation Act and the general principle that a valid construction is preferred over one that is invalid. However, the considerations point powerfully in the one direction. The force of the words “in addition to”, the unambiguous hierarchical words in cl 92, the specificity of cl 94 being confined to EHRR prisoners and the legislative history confirming that cl 94 is later in time all point against the construction for which the appellant and amicus contended, whereby cl 94 does not apply to legal practitioners. Even though that construction results in partial invalidity (I shall address the operation of s 32(2) below), cl 94 extends as a matter of construction to a legal practitioner retained by an EHRR inmate.

238. I conclude that the power to refuse permission to an inmate’s legal practitioner to visit “for any other reason” is not sustained by the regulation-making power, but the power to require a criminal record check is authorised.

Is the drop-in policy authorised?

239. The reasoning of the primary judge upholding the validity of the drop-in policy had two components. The first was that the drop-in policy was authorised as a necessary concomitant of the power to terminate a call. That may have reflected the way submissions were advanced at first instance, or alternatively it may have relied upon his Honour’s earlier conclusion as to the validity of clauses which applied to legal practitioners. However, it was clear in this Court that whether cl 119(6) applied to telephone calls between EHRR inmates and their legal practitioners at all, and if so whether it was valid, were both in issue. Further, the Commissioner conceded that cl 119(6) fell short of expressly authorising the drop-in policy.

240. The second component was the analogy with checking papers for contraband. In substance, this amounted to an acceptance that there was insufficient interference with an EHRR inmate’s right to a confidential conference with his or her lawyer. But I am unable to agree that the position is analogous, and I think the drop-in policy does materially invade lawyer/client confidentiality.

241. First, as the appellant emphasised, the call might be monitored for some period of time. It would be necessary to wait until the EHRR inmate had ceased speaking and the legal practitioner had spoken sufficiently to confirm the latter’s identity, and this might take a while, perhaps a minute.

242. Secondly, knowledge that the conversation was monitored and any part of it might be heard by an officer was apt to have a chilling effect on what was said.

243. I would accept that the process of “dropping-in” as described in the evidence may be as minimally intrusive as may be devised. There is a superficial resemblance with examining papers for contraband. However, there is a world of difference between examining papers in order to search for contraband articles, and listening to a conversation for the purpose of identifying the language and participants. The former can be done without reading the papers. The latter cannot be done without listening to the words being spoken. That is why, as the appellant and amicus submitted, the drop-in policy is a substantial impairment of the right to provide confidential, privileged instructions to, and to receive confidential, privileged advice from, a legal practitioner.

244. Recognition of those as important common law rights (or, more precisely, immunities) is even more recent than the recognition of the right to a lawyer, as explained in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49, but the position now is well settled. As the joint judgment in that appeal stated at [11]:

“Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.”

245. Thus the generally worded power in s 155 of the Trade Practices Act 1974 (Cth) was held not to defeat a recipient of a notice from refusing to produce documents on the ground of legal professional privilege.

246. Clause 119(6) does not operate to authorise a practice which amounts to a material infringement of confidentiality between an EHRR inmate and his or her lawyer. It is one thing to mandate English, but it is another thing entirely to listen covertly to portions of a conversation between client and lawyer, even if the client and lawyer are aware that that will happen. In any event, in order to authorise listening to a confidential conversation between client and lawyer, clear language or a necessary implication is required. For the reasons already given in connection with cl 94, the general regulation-making power in s 271 read with ss 79 and 271A do not authorise such a practice.

247. The respondents also relied upon four other sources of power to sustain the drop-in policy. One was cl 16 of the CAS Regulation. That regulation provided for the management of high security risk inmates including EHRR inmates, authorising the making of determinations with respect to, inter alia, “any additional security arrangements to be imposed in respect of high security, extreme high security, extreme high risk restricted and national security interest inmates” and “any other matter that is relevant to the management of high security, extreme high security, extreme high risk restricted and national security interest inmates”. However, that regulation likewise falls short of justifying a policy which is a substantial impairment of the ordinary right to provide confidential, privileged instructions to, and to receive confidential, privileged advice from, a legal practitioner. And, once again, cl 16 is not sustained by a regulation-making power which authorises a substantial curtailment of the confidentiality between EHRR inmate and his or her lawyer.

248. The respondents also pointed to three sections in the Crimes (Administration of Sentences) Act: ss 235B, 232 and 235 to sustain the drop-in policy.

249. Section 235B does not assist. That is a power to give instructions “with respect to the management and control of Corrective Services NSW”. As the appellant and amicus submitted, s 235B does not extend to the carrying out of the drop-in policy. “Corrective Services NSW” is defined in s 3 of the Act as “that part of the Department of Justice comprising the group of staff who are principally involved in the administration of this Act”. The drop-in policy is directed at the circumstances in which EHRR inmates are entitled to make phone calls, not at the management and control of corrective services staff.

250. The respondents also relied on ss 232(1) and 235(1) and (2) as sources of power for the policy. Those sections relevantly provide:

“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.

…

235   Functions of correctional officers

(1)  The functions of the various ranks and classes of correctional officers are to be as determined from time to time by the Commissioner.

(2)  Commissioned correctional officers must at all times exercise their functions in connection with the administration and management of correctional complexes and correctional centres in such manner as the Commissioner, having regard to current circumstances, may from time to time direct.

…”

251. Those provisions are all expressed in broad terms and confer a wide range of functions. But once again, they fall short of authorising, either expressly or by necessary implication, a practice which significantly impairs the ordinary incidents of an EHRR inmate’s confidential communications with his or her legal practitioner. There are no clear or express words authorising an abrogation of the right to legal professional privilege.

252. Accordingly, for substantially the same reasons given in relation to whether cl 94 authorises the Commissioner to refuse a visit by an EHRR inmate’s lawyer “for any other reason”, I do not consider that there is power to monitor a conversation between an EHRR inmate and the inmate’s lawyer.

Reading down

253. For those reasons, cl 94 does not validly authorise the Commissioner to refuse to approve a visit by a legal practitioner “for any other reason”. Nor does cl 119(6) or any other source of power authorise the “drop-in” policy insofar as it applies to telephone conversations between an EHRR inmate and his or her legal practitioner. I am not unconscious of the difficulties and risks of managing EHRR inmates, and in particular of the risks presented by meetings and conversations with lawyers retained on their behalf. The essential difficulty faced by the respondents is that the measures which the appellant impugns are not contained in legislation, but in a regulation and a practice, the measures have a significant effect on the rights of an EHRR inmate to a lawyer of their choice and to have confidential communications with that lawyer, and the legislation falls short of authorising any such curtailment of those rights.

254. It is necessary to turn to s 32(2) of the Interpretation Act. Clause 94 is not expressed in general terms which can lead to difficulties in reading down, as observed in Victoria v Commonwealth (1996) 187 CLR 416 at 502; [1996] HCA 56 and APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [92]-[95] and [369]-[370]. Insofar as cl 94(3) is expressed “on the basis of a criminal record check or for any other reason”, it lends itself to reading down at common law by a “blue pencil” test, and may readily be read down pursuant to s 32(2). Insofar as cl 94(3) is invalid in its application to legal practitioners, then s 32(2) authorises a construction whereby the words “or for any other reason” do not apply to visitors who are legal practitioners. The result of the application of s 32(2) is that cl 94(3) applies in its terms to all visitors save for legal practitioners, but in its application to legal practitioners is to be read down so that the words “or for any other reason” are omitted.

255. Turning to the drop-in policy, cl 119 does not sustain the policy, but the clause itself is not invalid, and does not require reading down in accordance with s 32(2). The policy itself is not lawful insofar as it extends to telephone and AVL conversations between EHRR inmates and their lawyers, but s 32 of the Interpretation Act does not apply to policies and practices of the Commissioner.

256. The appeal should be allowed on these issues and the orders dismissing the judicial review proceeding should be set aside. I shall address the appropriate declaratory relief in the orders I propose.

The claim based on the Racial Discrimination Act

257. This aspect of the appeal focusses upon the requirement to use English during visits (cl 101), in correspondence (cl 116) and in telephone calls and AVL conferences (cl 119).

The reasoning of the primary judge

258. The primary judge reproduced the agreed facts in this proceeding, including:

“The plaintiff and his immediate family are Arabic speakers and communicate with each other in Arabic, at least in part. The plaintiff’s parents do not have very good English and the plaintiff sometimes finds it easier to make himself understood, when speaking to them in English, if he translates particular English words into Arabic.”

259. His Honour also reproduced references in the written submissions to “the right to speak to members of his family during visits in the Arabic language” and “the right to speak in a person’s language”, and the oral submission advanced on the appellant’s behalf as follows:

“So we would say he’s a person of a particular race, and perhaps communicating with members of his family, and they’re of a particular race, and they have a particular ethnic origin, and he doesn’t enjoy a right, or enjoys it to a more limited extent than others in that he cannot communicate in the language of his birth with members of his family, nor can they with him, and that right is something held by every other person living in Australia who is entitled to speak in whatever language they like.”

260. His Honour proceeded on the basis that the right asserted by the appellant was a right to speak and/or express himself in Arabic. His Honour added at [141] that “although the submissions made tangential references to the plaintiff’s religion, no such right was ever asserted in precise terms on the plaintiff’s behalf”, observing that it was incumbent upon the plaintiff to clearly articulate the right(s) he asserts.

261. No complaint was made in this Court that his Honour had unduly narrowly understood the basis of this claim.

262. The primary judge dismissed this proceeding for two separate reasons. The first turned on what Kenny J had said in Iliafi v Church of Jesus Christ of Latter-Day Saints Australia (2014) 221 FCR 86; [2014] FCAFC 26, which distinguished freedom of expression from the right to use a particular language. Her Honour observed that the use of a particular language may be protected by the right to freedom of expression, although this right could not be equated with a “right to language”, and that “the 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”. After summarising some European decisions, the primary judge stated at [152]-[153]:

“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.

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.”

263. His Honour concluded that the right to freedom of expression did not extend to a right to communicate in all circumstances in the language of one’s choice, and did not engage ss 9 or 10 of the Racial Discrimination Act.

264. Separately from the above, at [160]-[166], his Honour said that the claim under s 9 would fail because cl 101 of the CAS Regulation was not an act based on race, colour, descent or national or ethnic origin, and the claim under s 10 would fail because s 10 conferred no right which was not enjoyed by the appellant because of his individual circumstances. Here, the fact that the appellant was required to speak English arose from the personal circumstances of his being in custody.

The parties’ submissions on the Racial Discrimination Act

265. This aspect of the appeal was given less attention in the appellant’s written and oral submissions than the other grounds. In writing, both the appellant and the respondent addressed the point in little over a page. The amicus advised that she had not identified any submissions that could be made to assist the Court on this issue.

The appellant’s submissions

266. The appellant submitted that cll 101, 116(1), 116(2) and 119(6) had “the operation and effect of depriving an inmate and other members of the community who are from other ethnic or racial backgrounds from enjoying a freedom [enjoyed by] English/Anglo Saxon Australia”. He argued that it was inconsistent with the Racial Discrimination Act for inmates to be “charged and punished” if they or a person they were speaking with spoke in a language other than English. On that basis, the regulations requiring inmates to speak English in particular situations were said to be invalid.

267. In oral submissions, the appellant identified the “right” he was unable to enjoy in contravention of s 10 of the Racial Discrimination Act as “the right to speak in our native tongue, our ethnic tongue, our – the language of our ethnic origin”. He argued that no state, or state instrumentality, was entitled to interfere with private communications between himself and members of his family on the basis that they could not properly be characterised as communications “forming part of public life”. He said that his parents were not proficient at speaking English, and that the Arabic language was essential to the practice of his Islamic faith. He emphasised that the practical effect of the requirement to speak English was such that he had been “internally charged because my mother spoke Arabic, and I was told I did not correct her, and the officer found me guilty”.

268. The appellant argued that the right under s 10 arose equally where he was speaking with a lawyer, and that he had had a phone call with his lawyer terminated where a Correctional Services Officer had alleged that he had not been speaking in English.

Respondents’ submissions

269. The respondents proceeded on the basis that the appellant’s primary submission was his disagreement with the primary judge’s conclusion that the appellant’s asserted right to communicate in Arabic on phone calls and during visits did not exist as a matter of law and did not engage the operation of ss 9 and 10 of the Racial Discrimination Act.

270. The respondents submitted that the primary judge was correct in following the decision of the Full Court of the Federal Court in Iliafi, that the right to freedom of expression protected by ss 9 and 10 of the Racial Discrimination Act “cannot be equated with a ‘right to language’” and “does not guarantee ‘linguistic freedom as such’ or ‘guarantee a right to use the language of one’s choice’ in all circumstances”, such as in “administrative matters”. It was said that the applicant had articulated no reason why the Full Court’s conclusion as to the proper construction of Commonwealth legislation was “plainly wrong” and should be followed: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]; [2007] HCA 22.

271. The respondents submitted that even were a protected right to be “properly articulated and engaged”, s 9 of the Racial Discrimination Act did not operate where a burden was imposed in a particular way in accordance with statutory authority, and that any “distinction, exclusion, restriction or preference” imposed by the requirement to speak English was based not on race, colour, descent or national or ethnic origin, but on the “single matter of status as an EHRR inmate”. Section 10 was said to have no work to do in circumstances where the reason a person did not enjoy a protected right was because of their personal circumstances or characteristics. Even if the right to speak in one’s native tongue could be characterised as a “protected right”, in the sense that it was a characteristic of race and therefore a right of the kind encompassed by ss 9 and 10 of the Racial Discrimination Act, the impact on that right was said to flow from Mr Hamzy’s desire (not need) to use Arabic in certain circumstances, and not from his race, colour, descent or national or ethnic origin: Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514; [2002] FCAFC 215. In any case, the respondents submitted that the rights protected by ss 9 and 10 of the Racial Discrimination Act did not extend to communications in circumstances where administrative and security constraints required that the State be able to supervise those communications.

Consideration

272. As is apparent from Basten JA’s judgment, the issues arising on the claims based on the Racial Discrimination Act are of considerable complexity.

273. Contrary to the respondents’ submissions, the reasoning in Iliafi is not a complete answer to this aspect of the appeal. Kenny J’s judgment shows an appreciation of nuances in this area and the sophistication of the reasoning, especially in the European decisions which inform the approach to the operation of the “human rights and fundamental freedoms” engaged by s 9. In particular, her Honour explained that, in light of the way argument had been advanced at trial and on appeal, no claim based on the freedom of expression recognised by Art 19 of the International Covenant on Civil and Political Rights had been advanced by Mr Iliafi (at [94]), and rather the appellants’ claim was confined to one based on Art 27 which protected minority rights, including language rights, in community with other members of their group. Further, Iliafi was confined to a claim based on s 9 of the Racial Discrimination Act, while this ground of appeal is based on ss 9 and 10.

274. Nonetheless, the primary judge was correct to dismiss the summons based on the Racial Discrimination Act. Insofar as the appellant relied on s 10, there was no other law which conferred a right enjoyed by persons of another race, colour or national or ethnic origin which, by dint of s 10, could be relied on by the appellant. Insofar as he relied on s 9, there was nothing to suggest that the purpose of the requirement to use English in cll 101, 116 and 119 of the CAS Regulation had anything to do with discrimination, and to be fair I did not understand that to be part of Mr Hamzy’s case. I would not accept the respondents’ submission that because the requirement was imposed by reason of Mr Hamzy’s status as an EHRR inmate, that is an end to a contention that s 9 might apply. It may be that the requirement to use English had a discriminatory effect, capable of engaging s 9, but if so that gives rise to questions of reasonableness, the practical operation of the clauses including their provision for relaxation in particular cases, and the relationship between subsections (1) and (1A). None of those issues was addressed in the proceedings at first instance. For those reasons, this aspect of the appeal must be dismissed.

Conclusion and orders

275. For those reasons, the appeal should be allowed in part, insofar as it challenges the dismissal of the proceeding challenging cl 94 and the “drop-in policy” in their application to lawyers retained by EHRR inmates (and a consequential costs order). The appeal should be dismissed insofar as it challenges the dismissal of the proceeding based on the Racial Discrimination Act.

276. The appellant sought declaratory relief and no other relief. The amicus submitted in writing that more appropriate orders would be framed in terms of prohibition, but did not elaborate upon this. As presently advised, declaratory relief will suffice. There is nothing to suggest that the Commissioner will not adhere to a declaration which binds him and his officers and employees. I also bear in mind that the regulation is apt to be amended, and unless the power in s 11 of the Subordinate Legislation Act 1989 (NSW) is re-exercised in order to postpone its automatic repeal, the entirety of the CAS Regulation will cease to have effect later this year in any event.

277. It has not been necessary to address the appellant’s further submissions impugning cl 94 and the drop-in policy which went beyond what had been renounced at trial by his counsel (including submissions based on Ch III of the Constitution, and the Telecommunications (Interception and Access) Act 1979 (Cth)). It has also not been necessary to address the further evidence sought to be adduced by the appellant. The notice of motion filed 14 September 2021 should be dismissed. No party sought costs.

278. I propose the following orders.

1.   Extend time in which to seek leave to appeal from the judgment of the Common Law Division dated 22 April 2020 until 24 June 2021.

2.   Insofar as the summons relates to proceeding 2016/276127,

(1)   grant leave to appeal and dispense with the rules as to filing and service;

(2)   allow the appeal in respect of grounds 1, 2, 3 and 4 in the draft notice of appeal dated 28 May 2021;

(3)   set aside the judgment entered on 22 April 2020 dismissing the proceeding and in lieu thereof, declare that:

a. cl 94(3) of the Crimes (Administration of Sentences) Regulation 2014 does not authorise the Commissioner to refuse a visit to an EHRR inmate by a legal practitioner for any reason other than a criminal record check;

b.   the Commissioner’s “drop-in” policy of periodically monitoring telephone calls and AVL access to check whether (i) an EHRR inmate and the other person are speaking English and (ii) the other person is the approved recipient of the call, does not apply to communications between an EHRR inmate and that inmate’s legal practitioner;

(4)   set aside order (1) (as to costs) made on 15 May 2020.

3.   Insofar as the appeal is brought from proceeding 2016/276186,

(1)   grant leave to appeal; and dispense with the rules as to filing and service;

(2)   dismiss the appeal.

4.    Dismiss the notice of motion filed 14 September 2021.

5.    No order as to the costs in this Court.

**********

Endnotes

Amendments

23 February 2022 - At [8] - "I agree with the orders proposed by Leeming JA." added

28 February 2022 - Order 3 - 2016/216186 replaced with 2016/276186

29 August 2022 - at [137] "section" replaced with "clause"

at [145] "the" replaced with "your" in "if both you and your legal representative"

at [149] "respondent's" replaced with "respondents'"

at [211] "communication" replaced with "communicate"

at [214] "34" replaced with "33"

at [276] "in any event" deleted from "is apt to be amended, and in any event, unless the power..."

21 October 2022 - Fn 3 to: See [111], [119] and [123] below.

[25]: Added “[ ]” around “origin” in quote.

[26]: Added “the” after “depending upon” in quote.

[28]: Added “the” after “notice is sent in” in quote. [check]

[33]: Added “for” after “merely prescribes consequences” in quote.

Fn 19: Deleted “*”.

[40]: Changed to “well-being” instead of “well being” in quote.

Fn 29: Changed to “[2014] ECHK 408 (2nd Section) (No 43750/06 et al, 22 April 2014)”.

[50]: Added “:” after “(b) the act”.

[57]: Changed “share” to “shared” in quote.

[58]: Added “of” after “and the memory”, and “an” after “being a minority or being” in quote.

[82]: Changed “activities” to activity” in quote, and “fall” to “falls”.

[86]: Added “was on” after “the ban” in quote.

Decision last updated: 21 October 2022