Hamzy v Commissioner of Corrective Services (NSW)
[2011] NSWSC 120
•11 March 2011
Supreme Court
New South Wales
Medium Neutral Citation: Hamzy v Commissioner of Corrective Services (NSW) and Anor [2011] NSWSC 120 Hearing dates: 8 December 2010 Decision date: 11 March 2011 Jurisdiction: Common Law - Administrative Law Before: Johnson J Decision: 1. Pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005 , an order is made dismissing the claims for relief in paragraphs 1, 2, 3 (except for subparagraph (c)), 5, 6, 7, 8 and 9 of the "Relief Claimed" part of the Amended Statement of Claim filed 5 August 2010.
2. Pursuant to Rule 14.28 Uniform Civil Procedure Rules 2005 , an order is made striking out paragraphs 9-14, 17-22, 25, 30-42 and 46 (except for subparagraphs (c) and (g)) of the "Grounds" section of the Amended Statement Claim filed 5 August 2010.
3. The Plaintiff is ordered to pay the Defendants' costs of the Notice of Motion, but only for the period on and after 26 June 2009.
4. The Plaintiff is ordered to pay the costs of the Defendants with respect to the proceedings which are dismissed in accordance with Order 1 made above, but only for the period on and after 26 June 2009.
Catchwords: ADMINISTRATIVE LAW - claim for damages and prerogative and declaratory relief - sentenced prisoner detained in restricted facilities in correctional system - limits on movements, associations and visits - restriction on residual liberty - whether segregation order required - whether such placement permissible under general power of management and good order - retrospective legislation allowing separation of prisoners without segregation order - summary dismissal application Legislation Cited: Felons (Civil Proceedings) Act 1981
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Racial Discrimination Act 1975 (Cth)
Interpretation Act 1987
Prisons Act 1952
Correctional Centres Act 1952
Prisons (Amendment) Act 1993
Crimes (Administration of Sentences) Further Amendment Act 2002
Crimes (Administration of Sentences) Legislative Amendment Act 2008
Crimes (Administration of Sentences) Amendment (Parole) Act 2004
Uniform Civil Procedure Rules 2005
Crimes (Administration of Sentences) Regulation 2001
Crimes (Administration of Sentences) Amendment Regulation 2009Cases Cited: Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services [2009] NSWSC 304
Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62
General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125
Webster v Lampard [1993] HCA 57; 177 CLR 598
Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937
Agar v Hyde [2000] HCA 41; 201 CLR 552
Wickstead v Browne (1992) 30 NSWLR 1
Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241
Preston v Star City Pty Limited [1999] NSWSC 1273
NRMA Insurance Limited v AW Edwards Pty Limited (Court of Appeal, 11 November 1994, BC9404893)
R v Hamzy [2002] NSWSC 128
R v Hamzy [2004] NSWCCA 243
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1
Minister for Immigration and Multicultural and lndigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566
Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625
Kelleher v Commissioner, the Department of Corrective Services [1999] NSWSC 86
Minister for Primary Industries and Energy v Austral Fisheries Pty Limited [1993] FCA 45; 40 FCR 381
Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Kingston v Keprose Pty Limited (1987) 11 NSWLR 404
Smith v Allan (1993) 31 NSWLR 52
Anderson (Commissioner, Corrections Victoria) v Pavic [2005] VSCA 244
Jarrott v Maughan (1987) 28 A Crim R 148
Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388
Collins v Downs (Roden J, unreported, 14 December 1982)
Maybury v Osborne [1984] 1 NSWLR 579
Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82
Kaufman v Smith [2001] VSC 420; 124 A Crim R 259
Refrigerated Express Lines (A'Asia) Pty Limited v Australian Meat and Livestock Corp [1980] FCA 38; 44 FLR 455
Bromley v Dawes (1983) 34 SASR 73
Binse v Williams [1998] 1 VR 381
Sandery v South Australia (1987) 48 SASR 502
Farr v Corrective Services Commission (Qld) (1999) 109 A Crim R 153
Kennon v Spry [2008] HCA 56; 238 CLR 366
R v Kidman [1915] HCA 58; 20 CLR 425
Maxwell v Murphy [1957] HCA 7; 96 CLR 261
Knight v Corrections Victoria [2009] VSC 607
Martinez v Minister for Immigration and Citizenship [2009] FCA 528; 177 FCR 337
NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; 72 NSWLR 456
The Queen v Hughes [2000] HCA 22; 202 CLR 535
Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158Texts Cited: Matthew Groves, "Administrative Segregation of Prisoners: Powers, Principles of Review and Remedies" (1996) 20 Melb UL Rev 639
"Special Report to Parliament Pursuant to Section 31 of the Ombudsman Act Concerning the Prisons (Segregation) Amendment Bill 1992" (4 May 1992)Category: Principal judgment Parties: Bassam Hamzy (Plaintiff)
Commissioner of Corrective Services (NSW) (First Defendant)
State of New South Wales (Second Defendant)Representation: Mr CD Jackson (Plaintiff)
Mr J Kirk; Mr SJ Free (First and Second Defendants)
Yazbek Lawyers (Plaintiff)
Crown Solicitor's Office (First and Second Defendants)
File Number(s): 2009/297956
Judgment
JOHNSON J : The Plaintiff, Bassam Hamzy, is serving sentences of imprisonment in the New South Wales prison system for serious crimes. During the course of that imprisonment, the Plaintiff has been detained in restricted facilities which have further confined, in a number of respects, his movements, associations, visits and other communications with persons inside and outside prison. This further detention, or deprivation of residual liberty, has been undertaken (in the main) without a segregation order being made under s.10 Crimes (Administration of Sentences) Act 1999 ( "CAS Act" ).
The Plaintiff has brought proceedings against the Defendants, the Commissioner of Corrective Services (NSW) ( "the Commissioner" ) and the State of New South Wales, seeking injunctive, prerogative and declaratory relief, an order by way of habeas corpus and orders that the Defendants pay damages to him arising from what is said to be his unlawful detention in stricter facilities within the prison system.
The Defendants have moved for summary dismissal of a substantial part of the Plaintiff's claim. The Defendants contend (amongst other things) that a s.10 segregation order was not, and is not, required to authorise the stricter confinement of the Plaintiff. This judgment considers and determines the summary dismissal application.
Procedural History of Proceedings
On 11 December 2007, Bell J granted leave to the Plaintiff under s.4 Felons (Civil Proceedings) Act 1981 to commence proceedings against the Commissioner: Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469. That grant of leave related to proceedings commenced by the filing of a Summons in this Court on 16 November 2007 seeking a review of a segregated custody direction made on 22 April 2007.
The Plaintiff's Summons was amended on a number of occasions in 2007 and 2008, until a proposed Fourth Amended Summons was served on 3 October 2008 incorporating a claim for damages for false imprisonment with respect to various past and present periods of detention.
On 24 October 2008, the Plaintiff filed a Notice of Motion seeking leave to proceed with the claim for damages for false imprisonment. On 31 October 2008, the Commissioner filed a Notice of Motion seeking summary dismissal of the proceedings or the striking out of the claim then framed in the Third Amended Summons, and as proposed in the Fourth Amended Summons.
On 24 April 2009, Adams J dismissed the Commissioner's Notice of Motion and granted the Plaintiff leave under the Felons (Civil Proceedings) Act 1981 to institute proceedings for false imprisonment: Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services [2009] NSWSC 304. At the hearing before me on 8 December 2010, the Court was informed that separate proceedings commenced by Emad Sleiman, which were also the subject of Adams J's judgment of 24 April 2009, had been discontinued.
The primary issue raised by the Notice of Motion determined by Adams J on 24 April 2009 was whether a prisoner/detainee, properly imprisoned, could maintain a claim for damages at common law for the tort of false imprisonment. The judgment of Adams J held that it was sufficiently arguable (for the purposes of a summary dismissal application) that it was possible to maintain such a claim. The Defendants do not seek to re-agitate that issue in the current Notice of Motion.
On 22 June 2009, the Plaintiff filed a Statement of Claim in the present proceedings.
On 5 August 2010, the Plaintiff filed an Amended Statement of Claim which is the relevant pleading for the purpose of the present application.
On 19 August 2010, the Defendants filed a Notice of Motion seeking summary dismissal of selected claims for relief contained in the Amended Statement of Claim, and the striking out of other parts of the Amended Statement of Claim which would also fail if the summary dismissal application was successful.
On 19 August 2010, a Defence was filed in response to the Amended Statement of Claim.
Relevant Legal Principles on Summary Dismissal Application
I approach the application upon the basis that a very clear case is required before summary dismissal is granted and that the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 ( "General Steel" ) at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-3.
The test is not whether the Plaintiff would probably fail in his action against the Defendants, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. Where the court is asked to summarily dismiss a plaintiff's case, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal application to succeed, a high degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575-6.
By bringing an application for summary dismissal, the Defendants undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37].
The present application turns upon the resolution of legal questions. The fact that, in order to deal with a summary dismissal application, it is necessary to consider at some length the applicable law, is in itself no reason for not determining what the law is and granting summary dismissal accordingly: General Steel at 130; NRMA Insurance Limited v AW Edwards Pty Limited (Court of Appeal, 11 November 1994, BC9404893, per Mahoney JA at page 13).
It has been said that the more complex and arguable a legal point is, and the more dependent it may seem to be upon debatable factual premises, the less likely is it that summary dismissal will be appropriate: NRMA Insurance Limited v AW Edwards Pty Limited (per Kirby P at page 7). However, as will be seen, there are no areas of disputed fact which would arise in this case which may affect the resolution of the relevant legal arguments.
The resolution of the present application involves questions of law only, and the proper construction of a number of statutory provisions. The only evidence before the Court on the application are documents explaining a number of Department of Corrective Services management and case-plan procedures with respect to the facilities in which the Plaintiff has been housed, together with a number of formal orders, warrants and other documents relating to the Plaintiff since 2002. I admitted this evidence, subject to relevance, over the objection of counsel for the Plaintiff. I am satisfied that this evidence has some relevance to the determination of this application, at least to the extent that it serves to explain a number of procedural aspects within different correctional centres, and to identify a number of formal documents relating to the Plaintiff.
Factual Background
On 15 March 2002, the Plaintiff was sentenced to lengthy terms of imprisonment for a number of offences, including murder and conspiracy to murder: R v Hamzy [2002] NSWSC 128. The earliest date upon which the Plaintiff may be eligible for release on parole is 14 December 2023.
On 23 July 2004, the Court of Criminal Appeal dismissed an appeal against the Plaintiff's conviction and sentence: R v Hamzy [2004] NSWCCA 243.
Following the imposition of sentences on 15 March 2002, the Plaintiff was conveyed to the Silverwater Correctional Centre under a warrant of commitment issued pursuant to s.62 Crimes (Sentencing Procedure) Act 1999 .
In April 2002, the Plaintiff was made the subject of a segregated custody direction and was transferred to the high-risk maintenance unit ( "HRMU" ) which at that time was part of the Goulburn Correctional Centre ( "Goulburn CC" ). The Plaintiff was detained in the HRMU, save for brief and immaterial periods when he was held at the Metropolitan Remand and Reception Centre and the Long Bay Hospital, from 19 April 2002 until 22 April 2007. This period is referred to in the Amended Statement of Claim as the "first HRMU period" .
From March 2002 until August 2002, the Plaintiff was classified as a "Category A2" inmate for the purpose of Clause 22 Crimes (Administration of Sentences) Regulation 2001 ( "CAS Regulation" ). On or around 26 August 2002, the Plaintiff was reclassified as a "Category A1" inmate for the purpose of Clause 22. The Plaintiff continues to be classified as a "Category A1" inmate.
On 21 April 2007, the Commissioner issued a direction to the General Manager of the HRMU that the Plaintiff be transferred to Lithgow Correctional Centre ( "Lithgow CC" ), and be placed on an inmate management program known as the Security Threat Group Intervention Program ( "STGI Program" ). On 22 April 2007, a direction was made under s.10 CAS Act that the Plaintiff be held in segregated custody and the Plaintiff was transferred to Lithgow CC.
The segregated custody order was revoked on 2 June 2008.
The Plaintiff was held in custody in Lithgow CC between 22 April 2007 and 6 July 2008. This period is referred to in the Amended Statement of Claim as the "STG period" .
On 11 June 2008, a further segregated custody order was made pursuant to s.10 CAS Act and, on 6 July 2008, the Plaintiff was removed from the STGI Program at Lithgow CC and transferred to the Multi Purpose Unit at Goulburn CC. On 19 September 2008, the Plaintiff was transferred into the HRMU. The segregated custody order of 11 June 2008 was revoked on 23 September 2008.
On 22 July 2009, the HRMU was proclaimed to be a "correctional centre" in its own right, within the meaning of the CAS Act. The proclamation took effect on the date of publication in the Government Gazette, being 24 July 2009. From that date, the HRMU has been known as the High Risk Management Correctional Centre ( "HRMCC" ). The Plaintiff remains in custody in the HRMCC. The period since 19 September 2008 is referred to in the Amended Statement of Claim as the "second HRMU period" .
The Claims for Relief in the Amended Statement of Claim
The Amended Statement of Claim, taken with particulars provided in correspondence from the Plaintiff's solicitors on 10 May 2010 and 14 July 2010, raises the following issues for determination in the proceedings.
The first issue is whether the Plaintiff is being held unlawfully (and has been so during certain past periods) on the basis that the CAS Act does not authorise the holding of an inmate in circumstances of effective segregation, without a formal segregation order under s.10 CAS Act being in force (and in the absence of some disciplinary order under Part 2 Division 6 CAS Act). This may be described as the "segregated custody issue" .
The Plaintiff seeks to contend that he is being held unlawfully (and has been held unlawfully during certain past periods) as the basis of his claim for damages for false imprisonment and other relief (paragraphs 1, 2, 5, 6, 7, 8 and 9 of the "Relief Claimed" part of the Amended Statement of Claim). This type of claim has been characterised as a claim for deprivation of "residual liberty" . Apart from restrictions on associations with other inmates, the Plaintiff does not contend that his detention was unlawful because of the conditions of his imprisonment, including the period each day when he was locked in his cell. Adams J referred to the distinction between a "residual liberty" claim and a "conditions of imprisonment" claim: Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services at [65]-[66], with the latter type of claim not being allowed to proceed.
The second issue is whether the Crimes (Administration of Sentences) Amendment Regulation 2009 ( "the 2009 Amendment Regulation" ) is invalid, because it is not authorised by the CAS Act and/or was made for an improper purpose. This will be described as the "ultra vires challenge to the 2009 Amendment Regulation" and relates to claims for relief in paragraph 3 of the "Relief Claimed" part of the Amended Statement of Claim.
The third issue is whether Clauses 95A, 108A and 110(6) of the 2009 Amendment Regulation are invalid because they are inconsistent with s.10 Racial Discrimination Act 1975 (Cth) ( "RD Act" ). This will be described as the "RD Act challenge to the 2009 Amendment Regulation" and relates to the claim for relief in paragraph 4 of the "Relief Claimed" part of the Amended Statement of Claim.
The fourth issue relates to the Plaintiff's contention that the segregated custody directions made in respect of him on 22 April 2007 and 11 June 2008 were invalid because they were made for an improper purpose and because there was a reasonable apprehension of bias on the part of the Commissioner.
The Defendants seek the summary dismissal of the Plaintiff's claim for relief corresponding to the first and second issues listed above only. The Defendants do not seek summary dismissal in respect of the remaining issues raised.
The Defendants submit, correctly in my view, that the two issues which are the subject of this summary dismissal application are legal in nature, depending in substance upon construction of the relevant legislation. There are no areas of disputed fact which could arise which may affect the resolution of these legal arguments.
Submissions of the Parties
Submissions of the Defendants - The Segregated Custody Issue
Mr Kirk, counsel for the Defendants, submits that the Commissioner has the care, control and management of the Plaintiff as an offender held in custody in accordance with Part 2 of the Act: s.232(1)(a1) CAS Act (see [110]). He submits that s.78A (enacted in 2009 and reproduced at [114]) makes clear that, notwithstanding Part 2 Division 2 CAS Act (ss.10-22 reproduced at [106]), an inmate may be held separately from other inmates without the need for a segregated custody order to be made in respect of that inmate. Section 79 CAS Act (see [115]) provides a detailed list of the matters in respect of which the regulations may make provision, including "the management, control, administration, supervision and inspection of correctional centres and correctional complexes" (s.79(a)) and "the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified" (s.79(c)).
With respect to the first issue, described as the segregated custody issue, Mr Kirk notes the Plaintiff's contention that he is effectively being held in "segregated custody" within the meaning of the concept in Part 2 Division 2 CAS Act, but without a segregated custody direction being in force at such time. As a consequence, the Plaintiff contends that his imprisonment during such period was unlawful and he is accordingly entitled to damages and other relief.
The Defendants submit that, throughout the first HRMU period, the STG period and the second HRMU period, the Plaintiff's detention has been managed in accordance with defined custodial plans and programs, as well as in accordance with the CAS Act and the CAS Regulation. Reference is made to the relevant management plans which applied to the Plaintiff at the HRMU (now HRMCC) and Lithgow CC, and case-plan documents relating specifically to the Plaintiff which identify his placement from time to time within particular plans (contained in Exhibit A).
By virtue of his management in accordance with such custodial plans and programs, the Defendants submit that the Plaintiff has been subject to restrictions on the number and identity of inmates with whom he has been permitted to associate. The Defendants submit that this is a function of his placement at any given time within the applicable management program.
Mr Kirk observes that the Plaintiff's argument as to false imprisonment depends upon the proposition that, as a matter of statutory construction, an inmate cannot lawfully be subjected to such restrictions upon his associations with other inmates except by way of a segregated custody order under s.10 CAS Act. In this respect, Mr Kirk notes that the Plaintiff seeks to rely on the principle of statutory construction that the conferral of a specific power to do something, subject to conditions, implies that a more general power within the same Act ought not be construed as authorising the doing of the same act.
Mr Kirk submits that the Plaintiff's case depends upon application of the principle of construction articulated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 (" Anthony Hordern ") where Gavan Duffy CJ and Dixon J said, at 7:
"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
The Defendants also relied upon Minister for Immigration and Multicultural and lndigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 (" Nystrom ") at 589 [59], where Gummow and Hayne JJ said:
" Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power."
Mr Kirk referred to Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489 at 502-504 [39]-[47] where, after reference to Anthony Hordern and Nystrom , the High Court observed at 504 [46] that the two powers in question were capable of co-existing without the latter being repugnant to the former. Further, a contrary finding would have cumbersome consequences which could be taken into account in determining the question of statutory construction (at 504 [47]).
Mr Kirk submits that the Plaintiff's argument is bound to fail, particularly having regard to s.78A CAS Act. He submits that the 2009 second reading debate indicates that the amendment was introduced in direct response to the Plaintiff's proceedings, and was intended to foreclose the type of argument raised in the proceedings regarding unlawful segregated custody. The amendment was intended to put beyond any doubt that, contrary to the arguments sought to be advanced by the Plaintiff, an inmate may be held separately from other inmates without the need for a segregation order under s.10 CAS Act.
Mr Kirk submits that s.78A(4) (in particular) makes clear that an inmate may be separated from other inmates, for example, by way of a regime of restrictions upon associations pursuant to a program of custodial management, and that no direction is required under s.10 CAS Act in order to make lawful the resulting separation or segregation from other inmates. He submits that s.78A(5) provides that the legislation has retrospective effect and that, in the face of s.78A, the argument that the Plaintiff's imprisonment is, and/or has been, unlawful during the identified periods because of the restrictions imposed upon him in associating with other prisoners, is bound to fail.
Mr Kirk submits that s.78A serves to confirm the breadth of the powers conferred on the Commissioner and others pursuant to the CAS Act regarding the custodial management of inmates. He submits that the proposition sought to be advanced by the Plaintiff is that, by implication arising from Part 2 Division 2 CAS Act, there is an effective limitation on these powers, to the effect that restrictions may not lawfully be imposed upon associations unless a segregated custody direction has been made. The Defendants submit that consideration of other provisions in the CAS Act, viewed together with the CAS Regulation, demonstrates that no such implication can properly be drawn. Mr Kirk submits that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381 [69].
To the extent that the Plaintiff relies upon the maxim expressum facit cessare tacitum, Mr Kirk submits that this maxim, whilst a valuable servant, is apt to be a dangerous master, and that it is necessary to seek confirmation in the broader context of the whole Act: Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625 at 632.
Mr Kirk submits that the general powers in relation to separating inmates, such as s.78A and other provisions in the CAS Act, are not directed to the same purpose as s.10. Rather, they are addressed to the general care, control and management of inmates. In this respect, he refers in particular to s.232(1)(a1) CAS Act, Clauses 12-13 CAS Regulation (concerning case plans), the concept of classification of inmates including references to accommodation in Clauses 33 and 37 CAS Regulation and Clause 26 CAS Regulation concerning extreme high-risk restricted inmates and extreme high-security inmates.
Mr Kirk submits that, in any event, nothing in the CAS Act confers on an inmate the right to associate with other inmates. Given the special legal position of inmates held in custody, the CAS Act should be construed as conferring rights on inmates only where the language of the legislature is unambiguous: Kelleher v Commissioner, the Department of Corrective Services [1999] NSWSC 86 at [9].
Submissions of the Defendants - The Ultra Vires Challenge to the 2009 Amendment Regulation
With respect to the second issue, the ultra vires challenge to the 2009 Amendment Regulation, Mr Kirk submitted that the Plaintiff had been designated as an "extreme high risk restricted inmate" for the purpose of Clause 25(2A) CAS Regulation on or about 18 May 2009, and that the provisions of the Regulation therefore apply to him.
The Defendants submit that, with one exception, the grounds relied upon by the Plaintiff with respect to the ultra vires challenge to the 2009 Amendment Regulation are wholly lacking in substance. The Defendants accept that one area (Ground (c)) depends upon a factual enquiry regarding the purpose of the Regulation, and accordingly is not the subject of the present summary dismissal application.
With respect to the balance of the ultra vires challenge, the Defendants refer to the Regulation-making powers contained in ss.79 and 271 CAS Act. It is submitted that the Regulations are consistent with provisions of the CAS Act.
With respect to the Plaintiff's arguments based upon proportionality, unreasonableness, capriciousness and irrationality, the Defendants submit that the circumstances in which a regulation may be invalidated on such grounds are narrowly confined. Reliance is placed upon the statement of Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Limited [1993] FCA 45; 40 FCR 381 at 384:
"Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended in authorising the subordinate legislative authority to enact law."
This statement of principle was cited with approval by Spigelman CJ (Beazley and Tobias JJA agreeing) in Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; 138 LGERA 11 at 45-46 [133].
Accordingly, Mr Kirk submits that orders for summary dismissal ought be made as sought by the Defendants.
Submissions of the Plaintiff
Mr Jackson, counsel for the Plaintiff, emphasised the stringent test required before the Court may summarily dismiss the Plaintiff's claim. He contended that the Defendants had not made good that test in this case.
He submitted that, in order for the Defendants to succeed on the first issue, it was necessary to show that s.78A CAS Act allowed segregated custody without any of the preconditions or rights of review which safeguard the exercise of that power in s.10 CAS Act. He submitted that those safeguards reflected a recognition of the additional hardship constituted by segregation, so that its imposition ought be confined and controlled in the ways identified in ss.10-22 CAS Act.
Mr Jackson submitted that the Court should not accept the Defendants' construction of s.78A. That construction, he submitted, would mean that ss.10-22 CAS Act, and the rigours imposed by those sections, could simply be bypassed through the operation of s.78A. He submitted that the intention of Parliament ought be derived from the plain words of the statute, applying principles of statutory construction, and not the Minister's statement of what the legislation was intended to achieve or the explanatory memorandum: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ) and 400-401 [170]-[172] (Mason P).
Mr Jackson provided an alternative construction of the relevant provisions. He submitted that ss.10 and 12 CAS Act are directed at an individual inmate and the restriction of his residual liberty. They operate independently of operational requirements and logistics, when an opinion is formed as outlined in s.10(1), allowing an inmate to be held either in what is, in effect, solitary confinement, or with a right of contact with only those inmates determined.
On the other hand, Mr Jackson submitted that s.78A made no reference to either "isolation" nor "a restriction of association" . Rather, it refers to the "separation" of some prisoners from other prisoners "for the purposes of the care, control or management of the inmate or group of inmates" . Read in the context of the Act as a whole, Mr Jackson submits that s.78A augments the powers granted under s.23 of the Act (concerning transfers from one correctional centre to another), and allows different regimes for different groups of prisoners for the purposes of their care, control or management. He submits that it is directed at controlling groups, and separating groups of inmates from other groups of inmates. He submits that it removes an argument that merely treating different classes of inmates differently (s.78A(1)), creating different wings, or even creating a prison within a prison (s.78A(2) and (3)) is, in itself, unauthorised in the absence of a valid segregation order.
Mr Jackson submits that s.78A does not, retrospectively or otherwise, render detention in isolation lawful, nor the restriction of an inmate's associations in the manner provided for by s.12, in the absence of a segregated or protective custody order.
With respect to the second issue, the ultra vires ground, Mr Jackson submits that the relevant Regulations are not authorised by s.79 or s.271 CAS Act.
Mr Jackson submitted that the Defendants had not satisfied the stringent requirements for summary dismissal of the Plaintiff's claims, which ought proceed to trial at a hearing on the merits, in the ordinary way. He pointed to the importance of the Court insisting that restriction of liberty cannot occur unless permitted by law: Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services at [59] (Adams J). He submitted that the Plaintiff was entitled to test the validity of his detention, and the validity of the Regulations, at a full hearing on the merits.
Defendants' Submission in Reply
In reply, Mr Kirk challenged the Plaintiff's construction of s.78A. He submits that it is unhelpful to approach the legal question relating to segregated custody by asking whether ss.10-22 CAS Act can be bypassed through the operation of s.78A. Mr Kirk submits that the question before the Court is whether the CAS Act, including s.78A, authorises (and authorised) the restrictions imposed on the Plaintiff's ability to associate with other inmates, in the absence of a formal segregation order under s.10 CAS Act.
The Defendants submit that the powers conferred on the Commissioner and others under ss.10 and 11 to issue directions that inmates be held in segregated or protective custody operate independently of, and in addition to, the general powers conferred on the Commissioner in respect of the care, control and management of inmates under s.232(1)(a1) CAS Act. Section 78A makes clear that the latter powers extend to the holding of inmates separately from other inmates, and no segregated custody direction is required to authorise such separation. Mr Kirk submits that it is not a question of s.78A being used to bypass s.10 or avoiding the controls relating to s.10.
Mr Kirk submits that the Plaintiff's construction that s.78A applies only to the separation of groups of inmates is untenable, and is contrary to the clear words of s.78A(2) which refers to "an inmate or group of inmates" .
Mr Kirk submits that the notion of separation necessarily involves the idea of limiting association. It was for that reason that s.78A was enacted, as reflected in the provision in s.78(4) that the making of a segregated custody direction is not required to authorise the separation of inmates. He submits that it has always been the case that the statutory scheme has authorised restrictions on associations with inmates, as demonstrated by the separation of the sexes, having different correctional centres and having different classifications and designations adopted with respect to such matters as internal and external security/safety risks.
Mr Kirk submits that s.78A was enacted to respond to the legal argument that, in some way, these inherent aspects of the scheme were restricted by the specific provisions made with respect to segregated custody directions.
Given the terms of s.78A, in particular s.78(4), Mr Kirk submits that the proposition that the CAS Act confers only one power to take the relevant action (that is, holding an inmate separately from other inmates) is clearly untenable. These considerations of text and context are sufficient to demonstrate that the Anthony Hordern principle has no application in the present case. He submits that this conclusion is consistent with the legislative purpose in enacting s.78A and that, contrary to the Plaintiff's submissions, it is legitimate and appropriate to have regard to the secondary materials to identify the legislative purpose and the mischief at which the legislation was directed: ss.33 and 34 Interpretation Act 1987 ; Harrison v Melhem at 384 [13], 401 [172]. The Defendants do not submit that the extrinsic materials serve to guide the meaning of the legislation. However, they do assist in identifying the purpose of s.78A, which was enacted with the clear object of foreclosing the very argument which the Plaintiff seeks to rely upon regarding segregated custody.
Mr Kirk submits that the Court is required to give preference to a construction that would promote the purpose or object underlying the Act over a construction that would not promote that purpose or object: s.33 Interpretation Act 1987 . Once the Court has identified the target of legislation, he submits that the duty of the Court is to see that the target is hit: Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 424.
With respect to the ultra vires challenge to the 2009 Amendment Regulation, Mr Kirk points to the fact that s.79 authorises the making of regulations "for or with respect to" various specified matters. He submits that the words "with respect to" are words of the widest possible connection, and should not be narrowly construed: Smith v Allan (1993) 31 NSWLR 52 at 61.
Mr Kirk submits that the breadth of that notion is especially apt for a regulation-making power dealing with the very broad topic of management of correctional centres and inmates, an area in which the courts have traditionally, for good reason, not intervened too readily: Anderson (Commissioner, Corrections Victoria) v Pavic [2005] VSCA 244 at [32]-[33].
Relevant Statutory Provisions
The resolution of the primary issue on the application turns upon the construction and application of s.78A CAS Act, a retrospective provision enacted in 2009. However, the Defendants contend that s.78A effectively confirmed law and practice in the New South Wales correctional system prior to this time. I do not accept this submission of the Defendants. At the least, it is strongly arguable that the enactment of s.78A in 2009 constituted a significant change in the law regarding the segregation or separation of prisoners on certain grounds.
An understanding of the legislative history of segregation provisions in New South Wales prison statutes may assist the construction of provisions within the CAS Act: Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 at 393 [26]. A detailed examination of the relevant statutory history is required to assess the state of law and practice prior to 2009.
The task of managing and controlling prisons and prisoners extends far back in the history of this State. It is an area regulated by statue and delegated legislation. In Jarrott v Maughan (1987) 28 A Crim R 148, Slattery CJ at CL said at 151:
"Prisons, being places where prisoners are confined, are by the very reason of their existence difficult places in which to maintain order, control and discipline. Since the early days of the Colony of New South Wales corrective authorities have been concerned with prison discipline to ensure that gaols and penal establishments are properly managed, controlled and supervised. Prison authorities have relied on regulations and rules for the management and control of gaols."
Provisions for Segregation of Prisoners in New South Wales Prisons
The appropriate starting point involves reference to provisions contained in the Prisons Act 1952 , later renamed the Correctional Centres Act 1952 , the predecessor legislation to the CAS Act. This process will shed some light upon the segregation provisions in s.10 CAS Act and following.
Provision was made for the segregation of prisoners in s.22 Prisons Act 1952 .
That provision was then in the following terms:
"Segregation of prisoners
22.(1) Where the Commissioner, or the governor of a prison, is of opinion that the association of a prisoner with other prisoners constitutes or is likely to constitute a threat to the personal safety of that or any other prisoner or of any prison officer or other officer of the Department of Corrective Services, or to the security of the prison, or to the preservation of good order and discipline within the prison, the Commissioner or the governor may direct the segregation of such first mentioned prisoner, whereupon such prisoner shall be detained away from association with other prisoners or, where the Commissioner so approves, in association only with such other prisoners as the Commissioner may determine.
(1A) Without limiting the generality of subsection (1), the Commissioner may, at the written request of a prisoner, direct the segregation of the prisoner, whereupon the prisoner shall be detained away from association with other prisoners or, where the Commissioner so approves, in association only with such other prisoners as the Commissioner may determine.
(2) Where the governor of a prison gives a direction pursuant to subsection (1) he shall immediately report the fact in writing to the Commissioner. A prisoner segregated pursuant to the direction of the governor of a prison shall not be so segregated for a longer period than two weeks unless the Commissioner otherwise directs.
(3) During any period of segregation, the prisoner so segregated shall not suffer reduction of diet, nor shall he be deprived of any rights or privileges other than those which may be determined by the Commissioner either generally or in any particular case.
(4) The Commissioner must not direct that a prisoner be segregated for a continuous period exceeding 3 months, except as provided by this section.
(5) The Commissioner may direct, on one or more occasions, that the period of segregation of a prisoner be extended, but only if on each occasion the Commissioner has formed an opinion, or received a written request, as required under subsection (6). Extensions must not exceed 3 months at a time.
(6) Subsections (1) and (1 A) apply to a direction for the extension of a period of segregation in the same way as they apply to a direction for segregation. However, a direction for the extension of a period of segregation of a prisoner may differ in its terms from any earlier direction for the segregation of the same prisoner or for the extension of that segregation.
(7) A direction under this section must be in writing and must include the grounds on which it is given.
(8) A direction under this section given at the request of a prisoner must be revoked by the Commissioner if the prisoner makes a request in writing to the Commissioner for its revocation. Any other direction may be revoked by the Commissioner at any time."
Section 22 was referred to, without any detailed analysis, in Collins v Downs (Roden J, unreported, 14 December 1982); Maybury v Osborne [1984] 1 NSWLR 579 at 584 and Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 85. It has also been considered in other decisions.
In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328 (a case dealing with detention in the Katingal Special Security Unit), Hutley JA (Moffitt P and Glass JA agreeing) observed that segregation of prisoners under the conditions specified in s.22 implied that prisoners will not be segregated unless those conditions are fulfilled. Hutley JA observed (at 328B) that the issue of whether any segregation of a prisoner, which was not authorised by s.22, implied rights to a civil remedy sounding in damages did not arise because the Court was of the opinion that there was, in fact, no segregation "If a prisoner is unique so that there are no other prisoners with whom he can associate, that prisoner is not segregated" . Hutley JA provided the well-known example of Rudolph Hess "though the only prisoner convicted at Nuremberg still in confinement, he is not a segregated prisoner" .
Hutley JA concluded (at 329B-C) that the Prisons Act 1952 and Regulations, insofar as they dealt with the classification of prisoners, did not give rise to private rights enforceable in ordinary courts.
At that time, s.7 Prisons Act 1952 provided that the Commissioner had, subject to the Act and the directions of the Minister, the care, direction, control and maintenance of all prisons.
The 1993 Amendments to the Prisons Act 1952
A number of amendments to the Prisons Act 1952 made in 1993 are significant for present purposes.
At that time, s.6(3) Prisons Act 1952 provided that the Commissioner had "the care, direction, control and management of all prisons and prison complexes" .
The Prisons (Amendment) Act 1993 effected a number of amendments to s.22.
Sections 22A-22F were inserted in the Prisons Act 1952 by the Prisons (Amendment) Act 1993 . These sections provided for reporting to the Minister on the extent of segregation (s.22A), review of segregation by the Minister (s.22B), review of segregation by the Serious Offenders Review Council ( "SORC" ) (s.22C), interim directions by SORC (s.22D), procedure for review of segregation (s.22E) and determination of review by SORC with respect to segregation (s.22F).
Sections 22-22F lay within Part 3 of the Prisons Act 1952 entitled "Treatment of Prisoners" .
In the second reading speech concerning the Bill, the then Attorney General, the Hon JP Hannaford said with respect to the segregation amendments (Hansard, Legislative Council, 28 October 1993) (emphasis added):
"Schedule 2 of the Prisons (Amendment) Bill contains proposals which are designed to provide more effective and accountable use of segregation in New South Wales correctional centres. Segregation is the detention of an inmate away from all other inmates or in association only with such inmates as are determined by the Commissioner of Corrective Services. The segregation of an inmate for any length of time, and particularly for extended periods, is a decision requiring close consideration and supervision. There are two types of segregation: administrative segregation and protective segregation. Inmates are placed on administrative segregation for the safety of another inmate or officer, or for the security or good order and discipline of the institution. Protective segregation, or protection, as it is more commonly termed, is normally provided at the request of the inmate, for reasons of personal safety .
Segregation is not intended to constitute any form of punishment or retaliation. It is an important management option to provide for the safety of officers and inmates and for good order in the correctional system. Consultation with the Office of the Ombudsman has resulted in the preparation of a number of the current proposals relating to segregation which expand upon features contained in a bill which was tabled in Parliament in 1992. The previous bill was subsequently withdrawn following the raising of certain matters by the Ombudsman. The Ombudsman has since indicated full support for the measures before the House today .
I now turn to the specific features of the amendments. The first proposes removal of the ministerial statutory obligation to approve extensions of segregation beyond six months, by effectively devolving authority to the Commissioner of Corrective Services. Under present provisions, correctional centre governors have the power to authorise segregation for up to 14 days. Authority to approve further periods of up to six months is vested in the Commissioner of Corrective Services, who has power, under the Prisons Act, to delegate those functions where appropriate. Authority to approve accumulative periods of segregation past six months rests at ministerial level, without any such power of delegation. Accordingly, at present, all orders for segregation past six months, including those at the inmate's request, must be referred for ministerial consideration and approval. In all other Australian States segregation is the responsibility of senior departmental staff. Responsibility and, more importantly, accountability for such operational matters should rest in operational hands, in all but exceptional circumstances. This is sound managerial practice. Devolution of this authority to the Commissioner of Corrective Services will bring New South Wales into line with other Australian States in this regard .
The second amendment proposes that any initial or subsequent order to extend an inmate's segregation will be limited to a maximum period of three months at a time. Both an original direction for segregation and any direction for extension must also be given in writing and must include the grounds on which it is based. This amendment will provide regular mandatory review of all extensions of segregation and introduce a statutory mechanism for accountability. Further amendments contained in schedule 2 to the bill respond to the recommendations made by the Office of the Ombudsman . The Ombudsman has noted that the present provisions imply that situations requiring the segregation of an inmate occur only after an inmate has been in custody for some unspecified period. This does not provide for those inmates requiring placement on segregation orders, particularly for reasons of protection, before they have associated with other inmates. The Serious Offenders Review Council will be utilised to review inmate appeals against decisions to extend periods of administrative segregation past the initial 14-day period. In determining such appeals, the Serious Offenders Review Council will be required to act independently of the Commissioner of Corrective Services .
The review council will have the power to conduct the inquiry as it sees fit, with the full co-operation of the Department of Corrective Services. It will be able to confirm, vary or disallow the extension order or make any other appropriate order. Its decisions will be final and binding on both the appellant and the commissioner. Inmates will have the right to appear before the council in person and to have legal representation if desired. The review council also will have authority to issue an interim order suspending a direction for segregation at a review hearing. As a further safeguard against the inappropriate imposition of segregation for lengthy periods of time, the Commissioner of Corrective Services will be required to submit a report to the Minister on each case of extension of administrative segregation past six months. In view of the concerns which have been raised regarding the segregation of inmates, ultimate statutory authority to review, amend or revoke an order segregating an inmate will be retained at ministerial level .
It is a fundamental feature of departmental correctional policy that inmates spend the minimum time necessary in segregation. To this end a number of special management programs are being implemented throughout the New South Wales correctional system to ensure that segregation is used only where appropriate. These programs are based on the principles of area management and case management in which officers and inmates interact closely to identify and address inmate problem areas. Departmental policy concerning segregation has already been revised to address the concerns raised by the Ombudsman. I am confident that the amendments contained within schedule 2 of the Prisons (Amendment) Bill will ensure that segregation as a management option is appropriately and responsibly utilised to enhance safety, security and good order in the State's correctional centres. "
It will be observed that the then Attorney General, in the Hansard extract in the preceding paragraph, referred to a 1992 Bill which had been tabled and withdrawn following the raising of certain matters by the Ombudsman. Those concerns were expressed in the Deputy Ombudsman's "Special Report to Parliament Pursuant to Section 31 of the Ombudsman Act Concerning the Prisons (Segregation) Amendment Bill 1992" ( "Special Report" ) dated 4 May 1992, tabled in the Legislative Assembly on 6 May 1992. That report may be referred to as relevant extrinsic material: s.32(2) Interpretation Act 1987 .
The Deputy Ombudsman explained the concept of segregation at paragraphs 2.1-2.2 of the Special Report (emphasis added):
"2.1 Section 22 of the Prisons Act enables prison authorities to take a prisoner out of the general population of prisoners and keep him or her separate from other prisoners. There are two causes for segregation. Some prisoners request to be segregated for reasons of personal safety. Many hundreds of prisoners are segregated in special protection facilities in various correctional centres for this reason. They are known as 'protection' prisoners. Because of their number, they are usually held with other protection prisoners and have reasonable access to work and other amenities. The other cause is more controversial. This is when the prison authorities form an opinion that the continued association of a prisoner with others constitutes a threat to the personal safety of that or other prisoners or prison officers, or to the security or preservation of good order and discipline within the prison. This is known as administrative segregation .
2.2 Segregation of prisoners against their wishes is controversial because it means they are kept in conditions hardly distinguishable from those given as punishment for the commitment of prison offences. Punishment in those instances comes after a proper hearing of charges either before the Superintendent or a Visiting Justice where prisoners have the safeguard of hearing the case made out against them, and of mounting a defence. In the latter situation prisoners have the safeguard of being able to be legally represented. Segregation on the other hand is, in effect, an informal disciplinary system. It is a means of keeping order without going through formal disciplinary procedures. It is used especially on occasions where such procedures would not work. There can be many reasons for this - a superintendent may receive information that a prisoner is suspected of planning to commit an offence or has been involved in an offence or some action threatening good order that cannot be proved. In other cases a prisoner may be segregated pending the hearing of an official misconduct charge."
The Deputy Ombudsman referred to the "extremely wide discretion" in s.22 (paragraph 3.1) with certain safeguards also contained in s.22 by way of a time limit and other provisions (paragraph 3.2).
The Special Report referred to a number of investigations undertaken by the Ombudsman concerning administrative segregation (paragraphs 4.9-4.10):
"4.9 More recent investigations by the Ombudsman of prisoners in long term administrative segregation have only deepened his concern that additional safeguards must be incorporated into the Act to protect against abuses of the segregation power. In the last financial year, the Ombudsman received 40 separate written complaints of unreasonable segregation or the failure to provide reasons.
4.10 A current investigation has brought to light the cases of two prisoners segregated for over nine months against their wishes. These prisoners were segregated in the High Security Unit on grounds of suspicion that they may have been associated in planned escape attempts. In one case a half completed tunnel had been discovered and in the other case a conversation had been overheard by officers involving talk of a hostage situation. In both cases there was little if any reliable evidence linking the prisoners to the possible events and their segregation was essentially related to their reputations. Their good conduct while held in the highly restricted and harsh conditions of the High Security Unit had little effect on the decisions to extend their periods of segregation. There was no demonstrable evidence that the security of any institutions would be threatened by their return to normal discipline. In the case of one of the prisoners, he did not know why he was segregated and even the officers in the High Security Unit for him did not know why he was there. The system of internal review and monitoring of segregation was in both cases unsatisfactory, failing to justify the segregation on reasonable grounds. The Department's mechanisms for the monitoring and review of long term segregation cases lacks the rigour and detailed evaluation that should be mandatory in cases involving the severe deprivation of rights and privileges."
Concerns were expressed in the Special Report about provisions in the Prisons (Segregation) Amendment Bill 1992 which would significantly widen the then current discretion and reduce other safeguards, including Ministerial oversight (paragraphs 5.1-5.4) with some marginal improvements noted as well (paragraph 5.5-5.6).
The Deputy Ombudsman stated (paragraph 5.7):
"The Ombudsman clearly recognises the need for prison authorities to have the power to segregate prisoners for the broad reasons contained in section 22 of the Prisons Act. Similar powers can be found in almost all other jurisdictions. But given the severity of the impact that administrative segregation has on prisoners lives, it is of paramount importance that segregation orders result from sound administrative decisions and are only used as a last resort after alternative means of housing prisoners in normal discipline are fully explored. Furthermore, assessments of the need to extend segregation should be able to stand up to independent scrutiny."
A recommendation was made in the Special Report that the Supreme Court should exercise a judicial review function with respect to segregation (paragraphs 5.7, 6.3). Clearly, this recommendation was not taken up by the Government. However, an elaborate statutory scheme was enacted as outlined in the Hansard speech cited at [89] above.
In a helpful analysis contained in an article entitled "Administrative Segregation of Prisoners: Powers, Principles of Review and Remedies" (1996) 20 Melb UL Rev 639, Matthew Groves referred to the New South Wales provisions following the 1993 amendments (at 644):
"New South Wales has recently amended the Prisons Act 1952 (NSW) to provide extensive legislative guidance on the exercise of the power to segregate and clear procedural requirements. The power to order the segregation of a prisoner is expressed in wide terms. A Governor of a prison or the Commissioner of Corrective Services ('Commissioner') may place a prisoner in segregation if he or she believes the safety of that prisoner, or any other prisoner, or a guard, or any other staff member, or the security or good order of the prison is threatened . These criteria, like those of other jurisdictions, could cover almost any situation."
An objective bystander might regard as curious a comparison between the elaborate provisions (with checks and balances) for segregation of prisoners (including on "good order" grounds) in ss.10-22 CAS Act and the sparse provisions for separation of inmates (including on "good order" grounds) in s.78A (and ss.79(c1) and 232(1)(a1) CAS Act). However, that is the result of Parliament's amendments in 2009. The terms of the statute, of course, remain a matter for Parliament.
In making these observations, I have not overlooked the challenges which arise in the contemporary management of prisons and prisoners. However, it remains necessary, of course, that relevant powers be found in the statute.
But for the enactment of s.78A in 2009, there was a clear and arguable issue on this aspect to go to trial, with the Plaintiff having reasonable prospects of success on this point. The legislative history of the segregation provisions in New South Wales prison legislation, referred to earlier in this judgment, would have assisted the Plaintiff in this regard.
I turn to the provisions contained in s.78A. That section is decisive on this application.
In the absence of some clear statement to the contrary, an Act will be presumed not to have retrospective operation. However, Parliament is not prevented from making laws which have retrospective operation: R v Kidman [1915] HCA 58; 20 CLR 425 at 451; Maxwell v Murphy [1957] HCA 7; 96 CLR 261 at 267; Knight v Corrections Victoria [2009] VSC 607 at [32]-[34].
The concept of statutory amendment to reverse the effect of a judicial decision is not, of course, unknown: Martinez v Minister for Immigration and Citizenship [2009] FCA 528; 177 FCR 337 at 341 [5].
A statute is to be given retrospective operation only to the extent necessitated by the clear intention of Parliament in the words of the statute: NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; 72 NSWLR 456 at 486 [130].
Section 78A(5) provides that:
"(5) Anything done or omitted that could have been validly done or omitted if this section (and section 79 (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted."
It has been said that the use of a phrase such as "is taken to be" is a convenient device for reducing the verbiage of an enactment: The Queen v Hughes [2000] HCA 22; 202 CLR 535 at 551 [24]. The phrase introduces a fiction or a hypothetical contrast, effectively deeming something to be what it is not: Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 at 203 [115].
The terms of s.78A(5) make it tolerably clear that the provision applies to facts or events that have already occurred, in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to past events: Maxwell v Murphy at 267. The language of the provision is plain. That s.78A was intended to have retrospective operation is confirmed by the second reading debate in support of the 2009 Bill.
As was the case in Knight v Corrections Victoria , I am satisfied that the retrospective operation of s.78A is beyond doubt.
I accept the submissions of the Defendants concerning the proper construction of s.78A. I do not accept the Plaintiff's submissions (at [60]-[61] above) which sought to place a strained and unavailable construction upon the otherwise clear words in s.78A.
It was not submitted for the Plaintiff that, if s.78A otherwise applied retrospectively to his circumstances, it did not apply to these proceedings. However, for abundant caution, I am satisfied that the provision operates with respect to these proceedings, given the clear words of s.78A and its statutory purpose.
With respect to the ultra vires argument, I am well satisfied that the relevant Regulations upon which steps concerning the Plaintiff were taken are valid. I accept the submissions of the Defendants referred to at [51] to [55] and [72] above. The clear terms of ss.79 and 271 CAS Act provide an appropriate and proper foundation for the making of the Regulations which were acted on.
I am therefore satisfied that the stringent test for summary dismissal has been demonstrated in this case and that the orders sought by the Defendants should be made.
Conclusion
I am satisfied that the Defendants are entitled to the orders ought in the Notice of Motion.
The determination of the Court on this application does not, in any respect, pass judgment upon the appropriateness of the steps taken with respect to the Plaintiff in custody, except to the extent that questions of statutory construction, and associated questions of law, have fallen for determination.
The effect of my decision is that the Plaintiff's claim for relief, in the areas referred to earlier in this judgment (at [30]-[32] above), will be dismissed pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005 . As those claims for relief will be dismissed, it is appropriate, as a consequential step, to strike out, pursuant to Rule 14.28 Uniform Civil Procedure Rules 2005 , other parts of the Amended Statement of Claim which relate solely to the claims for relief which are to be dismissed.
For more abundant caution, I note that the orders which I will make will leave on foot the Plaintiff's claim for relief as contained in the following parts of the Amended Statement of Claim:
(a) paragraph 3(c) and paragraphs 4, 10, 11 and 12 under the heading "Relief Claimed" ;
(b) paragraphs 1-8, 15, 16, 23, 24, 26, 27, 28, 29, 43, 44, 45, 46(c) and (g), 47 and 48 under the heading "Pleadings and Particulars" .
The Defendants have succeeded on the issues argued at the hearing of this Notice of Motion. However, I have determined that this success on the principal issue is the direct result of the enactment of the retrospective provisions in s.78A, which commenced on 26 June 2009. I am satisfied that costs should follow the event and that an order should be made that the Plaintiff pay the Defendants' costs of the Notice of Motion together with the Defendants' costs of the proceedings relating to that part of the proceedings which is dismissed, but only for the period on and after 26 June 2009. The Plaintiff contested the Notice of Motion unsuccessfully. However, the effective reason for his failure on the principal issue is the retrospective amendment. The Plaintiff ought not be required to pay the Defendants' costs for the period before that date.
I make the following orders:
(a) pursuant to Rule 13.4 Uniform Civil Procedure Rules 2005 , I dismiss the claims for relief in paragraphs 1, 2, 3 (except for subparagraph (c)), 5, 6, 7, 8 and 9 of the "Relief Claimed" part of the Amended Statement of Claim filed 5 August 2010;
(b) pursuant to Rule 14.28 Uniform Civil Procedure Rules 2005 , I strike out paragraphs 9-14, 17-22, 25, 30-42 and 46 (except for subparagraphs (c) and (g)) of the "Grounds" section of the Amended Statement Claim filed 5 August 2010;
(c) the Plaintiff is to pay the Defendants' costs of this Notice of Motion, but only for the period on and after 26 June 2009;
(d) the Plaintiff is to pay the costs of the Defendants with respect to the proceedings which are dismissed in accordance with Order 1 made above, but only for the period on and after 26 June 2009.
I will list the proceedings for directions before the Registrar in four weeks' time to allow the parties to determine the future course of the litigation in light of this judgment.
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Decision last updated: 11 March 2011
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