Hamzy v Commissioner of Corrective Services NSW

The case of *Hamzy v Commissioner of Corrective Services NSW* was heard in the Court of Appeal of New South Wales, before Bathurst CJ, Basten and Leeming JJA. The dispute concerned the validity of a regulation and a related policy that restricted communications for an "extreme high risk inmate" (EHRR inmate), specifically concerning communications with legal practitioners. The inmate, Mr Hamzy, challenged the Commissioner's actions and policies on grounds including administrative law, constitutional law, and human rights.

The primary legal issues before the Court of Appeal were whether clause 94(3) of the *Crimes (Administration of Sentences) Regulation 2014* (NSW) authorised the Commissioner to refuse a visit by a legal practitioner for reasons other than a criminal record check, and whether the Commissioner's policy of monitoring telephone calls and AVL access to ensure communications were in English and with approved recipients applied to communications between an EHRR inmate and their legal practitioner. The court also considered whether any such restriction was inconsistent with the *Racial Discrimination Act 1975* (Cth) and the constitutional principle of implied freedom of political communication, though the latter was not ultimately determinative.

The Court of Appeal reasoned that the regulation-making power, while general, did not extend to authorising regulations that cut down fundamental common law rights, such as the right of access to courts and legal advice, without clear and unambiguous statutory language. The court found that clause 94(3) was limited to authorising refusals based on a criminal record check. Furthermore, the court held that the Commissioner's monitoring policy, by requiring communications to be in English and with approved recipients, unduly interfered with the right to communicate with legal practitioners and was not authorised by the relevant legislation in its application to such communications. The court also found that the restriction on using languages other than English had a disparate impact on ethnic groups, potentially contravening ss 9 and 10 of the *Racial Discrimination Act 1975* (Cth), although this was not the primary basis for the decision regarding legal communications.

The Court of Appeal allowed the appeal in part, declaring that clause 94(3) of the Regulation did not authorise the Commissioner to refuse a visit by a legal practitioner for any reason other than a criminal record check. It also declared that the Commissioner's monitoring policy did not apply to communications between an EHRR inmate and their legal practitioner. The judgment dismissing the proceeding was set aside, and the order as to costs was also set aside. The appeal from the second proceeding was dismissed.