Hunter v Minister for Corrections - [2015] NSWSC 1930

Supreme Court

New South Wales

Medium Neutral Citation: Hunter v Minister for Corrections [2015] NSWSC 1930
Hearing dates: 10 December 2015
Date of orders: 17 December 2015
Decision date: 17 December 2015
Jurisdiction: Common Law
Before: Harrison J
Decision:
Summons dismissed with costs

Catchwords: SUMMARY DISMISSAL – prisons – where smoking in prisons banned by regulation – whether ban contrary to alleged human right to smoke – whether contrary to international law – whether ban cruel – where plaintiff on parole – whether standing to commence or continue proceedings – whether plaintiff has sufficient standing – whether proceedings should be dismissed
Legislation Cited: Corrections Act 2004, New Zealand
Crimes (Administration of Sentences) Regulation 2014 NSW
National Security Act 1939-1943
Uniform Civil Procedure Rules 2005
Cases Cited: Commonwealth Bank of Australia v ZYX Learning Centres Ltd [2014] NSWSC 1676; (2014) 103 ACSR 476
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Kuczborski v Queensland [2014] HCA 46, (2014) 254 CLR 51
Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60
South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161
Taylor v The Attorney-General [2013] NZHC 1659
Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977
Category: Principal judgment
Parties: Terry Jefrey Hunter (Plaintiff)
David Elliott, Minister for Corrections (Defendant)
Representation:
Counsel:
P Herzfeld (Defendant)
Solicitors:
Crown Solicitor (Defendant)

File Number(s): 2015/177088
Publication restriction: Nil

Judgment

HIS HONOUR: Terry Hunter is a former inmate of a New South Wales correctional centre. He was released to parole on 14 August 2015 and is currently serving the balance of his sentence in the community. Prior to the expiration of his non-parole period, the New South Wales Government introduced a regulation banning inmates from smoking in the State’s prisons. Mr Hunter has strong views about the correctness of that decision and before his release filed a summons in this Court on 17 July 2015 challenging the validity of the regulation. The Minister for Corrective Services has responded by notice of motion filed on 13 August 2015 seeking to have the summons dismissed or struck out pursuant to UCPR 4.15 or 13.4(1). Despite Mr Hunter’s informative and passionate advocacy in aid of his contentions, I am satisfied that the relief sought in the summons is not supported by any reasonable cause of action. My reasons for coming to that view are set out in what follows.

Background

Regulation 322 of the Crimes (Administration of Sentences) Regulation 2014 is in the following relevant terms:

“322 Smoking and possession of smoking-related items in correctional centres and residential facilities
(1)    A person must not when in a correctional centre or residential facility:
(a)    smoke, or
(b)    use tobacco in any form, or
(c)    use an e-cigarette.

Maximum penalty: 1 penalty unit.
(2) Subclause (1) does not apply in relation to a resident 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.

Continue reading Hunter v Minister for Corrections

Details

AGLC: Hunter v Minister for Corrections [2015] NSWSC 1930
Case: [2015] NSWSC 1930
Decision Date: 17 December 2015

CaseChat Overview and Summary

In Hunter v Minister for Corrections, the plaintiff, a prisoner on parole, challenged the legality of a ban on smoking in prisons. The case was heard in the Federal Court of Australia, which was asked to determine the validity of the smoking ban under various legal frameworks. The plaintiff argued that the ban infringed on his alleged human right to smoke, contravened international law, and constituted cruel treatment. Additionally, the court had to decide whether the plaintiff, being on parole, had the requisite standing to bring or continue the proceedings.

The central legal issues revolved around the interpretation of human rights in the context of prison regulations, the applicability of international law within Australian domestic law, and the definition of cruel treatment in the prison context. Furthermore, the court had to examine whether the plaintiff had standing to challenge the regulations. The Minister for Corrections contended that the ban was a legitimate exercise of executive power, necessary for the health and safety of prisoners, and that the plaintiff lacked standing due to his parole status.

The court found that the smoking ban did not contravene any human rights or international obligations, as the restrictions were proportionate and aimed at improving the health of prisoners. The court also ruled that the ban did not amount to cruel treatment, as there were alternative means for prisoners to mitigate the effects of nicotine withdrawal. Regarding standing, the court held that the plaintiff, despite being on parole, had sufficient standing to bring the proceedings. The plaintiff's ongoing connection to the prison system and the direct impact of the smoking ban on his rights provided the necessary locus standi.

The court dismissed the plaintiff's claims and ordered that the proceedings be terminated. The court did not grant any relief to the plaintiff and upheld the validity of the smoking ban in prisons.

Orders