Islam v Director-General, Justice and Community Safety Directorate
[2022] ACTSC 124
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Islam v Director-General, Justice and Community Safety Directorate |
Citation: | [2022] ACTSC 124 |
Hearing Date: | 9 May 2022 |
DecisionDate: | 27 May 2022 |
Before: | Kennett J |
Decision: | See [80] |
Catchwords: | ADMINISTRATIVE LAW – Prison discipline procedures – where charge notice not signed by detainee – where corrections officer proceeded as if breach was admitted – whether defendant complied with requirements of the Corrections Management Act 2007 (ACT) – whether decision to impose disciplinary action affected by jurisdictional error – whether declaratory relief should be granted HUMAN RIGHTS – Prison discipline procedures – right to humane treatment while deprived of liberty – right to protection from cruel, inhuman or degrading treatment – whether the taking of disciplinary action other than in accordance with law is incompatible with a human right |
Legislation Cited: | Corrections Management (Detainee Disciplinary) Policy 2012 (ACT) (NI2012-627) Corrections Management Act 2007 (ACT) ss 7, 8, 9, 14, 151, 152, 154, 156, 157, 158, 159, 167, 168, 170, 171, 173, 175, 176, 183, 184, 188 192, 194, 195, 201, 202, 228 Trade Practices Act 1974 (Cth) |
Cases Cited: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Velkoski v R [2014] VSCA 121; 45 VR 680 |
Parties: | Isa Islam ( Plaintiff) Director-General, Justice and Community Safety Directorate ( Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) N Oram ( Defendant) |
| Solicitors Self-represented ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 420 of 2020 |
KENNETT J:
Introduction
The plaintiff (Mr Islam) has spent approximately 14 years of his life in prison and freely admits that he has a fractious relationship with some corrections officers. This case arises from an incident in which he refused to leave his cell to attend what is referred to as “muster”, and a sanction was imposed on him by an officer at the Alexander Maconochie Centre (AMC).
Around 15 October 2020, Mr Islam was relocated from the Management Unit at the AMC to the Remand Unit. Around this time, he was involved in what he described as a dispute with corrections officers over accommodation. There is evidence that he insisted he was on a “regime”, under which he was not required to mix with other detainees, despite being told to the contrary by officers. He was confining himself to his cell, and only coming out in order to attend to his daily needs at times when he did not expect to meet any other detainees.
“Muster” is a regular event in which detainees are directed to leave their cells and go to the recreation yard. It is undertaken so that all detainees can be accounted for and their well-being can be checked. It is regarded by management at the AMC as a very important process.
On 17 October 2020, after Mr Islam failed to comply with a direction to attend muster, he was warned by Corrections Officer Grade 1 Nigel Mead (CO1 Mead) that he would receive an official warning. CO1 Mead completed an official warning form, but it does not form part of the subject matter of this proceeding.
On 18 October 2020, Mr Islam again refused to attend muster when directed to do so. CO1 Mead then completed what is known as an Incident Report Form (Form 1). Mr Islam was given an oral warning that he would be charged over this incident.
The following morning, 19 October 2020, Corrections Officer Grade 3 Steven Morey (CO3 Morey) completed a form described as “Discipline Form 3 - Charge Notice and Indicated Penalty” (Discipline Form 3). The Discipline Form 3 included as the recommended disciplinary action a loss of certain privileges for a seven-day period commencing at 3.00pm that day, including restricted access to “buy up” (a weekly process whereby detainees can obtain personal items). CO3 Morey recorded this sanction (without comment or explanation) in a file note forming part of Mr Islam’s case notes which is dated 19 October 2020 at 10:34am. I infer, therefore, that the Discipline Form 3 was completed at around that time.
Part of the information typed into the Discipline Form 3 is that the Form was served on 19 October 2020 at 3.00 pm. If (as I have inferred) the form was prepared on the morning of that day, this was a prediction or a plan rather than a record of actual events. I also note that the proposed denial of privileges was envisaged as commencing at exactly the moment the form was served on Mr Islam.
The second page of the Discipline Form 3 contains a section headed “To be Completed by the Detainee”. It begins with a note informing the detainee that, if they admit to the breach and accept the proposed disciplinary action, that action will be carried out. There are then three questions, the detainee’s answers to which are to be indicated by ticking the relevant box, followed by a space for the detainee’s signature, as follows:
Do you: [Detainee] understand the nature of the disciplinary breach and the recommended disciplinary action?
Yes No
Do you admit to the disciplinary breach of which you are accused?
Admit Do not Admit
Do you accept the disciplinary action recommended in this notice?
Yes No
In the completed Discipline Form 3 which is in evidence, the first question has been answered “yes”; the second, “admit”; and the third, “yes”. However, in the space provided for signature there is written “Refused to sign”. Underneath is the name of CO3 Morey followed by his signature and the date.
There is a dispute concerning exactly what occurred on the afternoon of 19 October 2020, when the Discipline Form 3 was purportedly served on Mr Islam. This is discussed later in these reasons. It is not in dispute that the sanction proposed in the form was carried out. Mr Islam gave evidence that he did not realise any sanction had been imposed until the following Friday (24 October 2020), when his normal weekly “buy up” did not arrive, while the evidence for the defendant was that he had been told about the imposition of this sanction on 19 October 2020.
The proceedings
Mr Islam’s Originating Application is dated 24 October 2020 although it was filed in this Court on 12 November 2020. It has been amended on a number of occasions, and Mr Islam now relies on the Third Amended Originating Application dated 9 January 2021. He seeks the following declarations:
1.that the Defendant’s behaviour towards the Plaintiff (in relation to the Discipline Form 3 and penalty imposed on the 19th Oct 20) is/was in contravention of the ACT Corrections Management Act 2007.
2.that the Defendant’s behaviour towards the Plaintiff (in relation to the Discipline Form 3 and penalty imposed on the 19th Oct 20) is inconsistent/was inconsistent with the ACT Human Rights Act 2004.
3.that the Defendant’s behaviour towards the Plaintiff (in relation to the Discipline Form 3 and penalty imposed on the 19th Oct 20) did not afford the Plaintiff procedural fairness.
4.that the punishments imposed by the Defendant’s Discipline Form 3 are cruel, inhuman and/or degrading.
In short, Mr Islam’s case is that he did not tick the boxes on the Discipline Form 3 and neither admitted the offence alleged therein nor accepted the proposed sanction. Initially, he contended that no officer had come to his cell on 19 October 2020 and he had been given no notice of the proposed sanction. However, in cross-examination he accepted that three corrections officers had visited him on the afternoon of that day and one had been carrying a piece of paper, possibly the Discipline Form 3. He insisted, nevertheless, that he had not ticked the relevant boxes on the form and had not signed it. He submitted that the process had not complied with ss 9, 159, 167 and 170 of the Corrections Management Act 2007 (ACT) (the CM Act).
Mr Islam also invokes the right to commence proceedings under s 40C(2) of the Human Rights Act 2004 (ACT) (the Human Rights Act) where a person claims that a public authority has acted in contravention of its obligation, under s 40B, not to act in a way that is incompatible with a human right. In such a proceeding, the Court may grant the relief it considers appropriate other than damages (s 40C(4)). The human rights that are relied on are the right not to be treated or punished in a cruel, inhuman or degrading way (s 10) and the right of persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person (s 19).
Relevant statutory provisions
Chapter 2 of the CM Act is headed “Objects and principles” and contains general provisions about how correctional services are to be managed. One of the main objects of the Act, set out in s 7, is “ensuring that detainees are treated in a decent, humane and just way”. Consistently with that object, s 8 provides that correctional services must be managed by (among other things):
8Management of Correctional Services
Correctional services must be managed so as to achieve the main objects of this Act, particularly by—
…
(b)ensuring respect for the humanity of everyone involved in correctional services, including detainees, corrections officers and other people who work at or visit correctional centres; and
(c)ensuring behaviour by corrections officers that recognises and respects the inherent dignity of detainees as individuals; and …
Section 9 of the CM Act provides as follows:
9Treatment of detainees generally
Functions under this Act in relation to a detainee must be exercised as follows:
(a) to respect and protect the detainee’s human rights;
(b) to ensure the detainee’s decent, humane and just treatment;
(c) to preclude torture or cruel, inhuman or degrading treatment;
(d) to ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;
(e) to ensure the detainee’s conditions in detention comply with section 12 (Correctional centres—minimum living conditions);
(f) if the detainee is an offender—to promote, as far as practicable, the detainee’s rehabilitation and reintegration into society.
Chapter 10 of the CM Act deals with discipline of detainees. It provides a process by which disciplinary action can be taken against a detainee. Disciplinary action, under s 183, can include a warning, a reprimand, imposition of an administrative penalty or combination of such penalties, or a direction to make reparation to an injured person. Administrative penalties can include a financial penalty, a withdrawal of privileges for a period, a requirement to perform extra work, or separate confinement for a specified period (s 184). These actions can be taken in respect of a “disciplinary breach”, which, as defined in s 152, takes a number of forms including (relevantly here) contravening a direction given to the detainee by a corrections officer (para (a)).
Where a corrections officer believes on reasonable grounds that a detainee has committed a disciplinary breach, the officer may take one or more of the actions set out in s 156(2): counsel, warn or reprimand the detainee; direct the detainee to be segregated from others for the purpose of an investigation; and give a “presiding officer” an “initial report” about the alleged breach (a “presiding officer” is a corrections officer to whom the director-general has given relevant functions under the Act: s 151).
Where an initial report is provided to a presiding officer, he or she may refer the matter to an investigator under s 157 and then, under s 158, consider either the investigator’s report, or the initial report. After considering the report, the presiding officer may take one or more of the steps set out in s 158(2). These include taking no further action, counselling or reprimanding the detainee, and (relevantly here) charging the detainee under s 159 (a “disciplinary charge”). Section 159 provides as follows:
159Disciplinary charge
To charge a detainee with a disciplinary breach, the presiding officer must give the detainee written notice of the charge (a charge notice), including details of the following:
(a)the disciplinary breach charged;
(b)a brief statement of the conduct to which the charge applies and when, or the period during which, it happened or is alleged to have happened;
(c)the option of having the charge dealt with by consent under division 10.3.1 (Disciplinary action—with accused’s consent);
(d)the election available under section 167 (Disciplinary breach admitted by accused) to accept the disciplinary action proposed by the presiding officer;
(e)the disciplinary action the presiding officer believes, on reasonable grounds, would be appropriate if the charge were dealt with under section 168 (Presiding officer’s powers—breach admitted by accused).
The process for dealing with a disciplinary charge is set out in Part 10.3 of the CM Act.
Under Division 10.3.1, the breach may be admitted by the accused detainee and the proposed disciplinary action accepted. If that occurs, s 168 empowers the presiding officer to take disciplinary action without further investigation or inquiry, but only the action set out in the charge notice. Section 167 provides the method by which the accused detainee can admit the disciplinary breach and thereby trigger s 168. The relevant parts of these provisions are as follows:
167Disciplinary breach admitted by accused
(1)An accused may elect to have a disciplinary charge against the detainee dealt with under this division by giving a presiding officer a written notice in which the accused—
(a)admits the disciplinary breach charged; and
(b)accepts the proposed disciplinary action stated in the charge notice.
Example of election
a signed admission and acceptance on the charge notice
(2)The election must be given to the presiding officer—
(a)no later than the day after the day the presiding officer gives the accused the charge notice; or
(b)within any extended period allowed under subsection (3).
…
168Presiding officer’s powers—breach admitted by accused
(1)This section applies if the accused elects under section 167 to have a disciplinary charge dealt with under this division.
(2)A presiding officer may, without further investigation or inquiry, counsel the accused and take disciplinary action against the accused in accordance with division 10.3.5 (Disciplinary action).
(3)However, the only disciplinary action the presiding officer may take under this section is the disciplinary action stated as the appropriate action in the charge notice.
(4)The presiding officer must give the accused written notice of a decision made under this section.
If the accused detainee is given a charge notice and does not make an election under s 167, a presiding officer is required to conduct an inquiry into the alleged disciplinary breach under Division 10.3.2 (s 170). The process of such an inquiry is governed by Chapter 11 of the CM Act. The rules of natural justice apply in such an inquiry (s 192(2)(a)). There are detailed provisions for the giving of notice (s 194), the conduct of the inquiry (s 195) and the conduct of a disciplinary hearing at which the accused detainee is entitled to be present (s 201) and to participate by questioning witnesses and making submissions (s 202).
Following an inquiry, if the presiding officer is satisfied that a disciplinary breach charged has been proven, he or she may take disciplinary action against the accused in accordance with Division 10.3.5 (s 171(2)). In contrast to the situation where the detainee admits the breach, the available disciplinary action is not limited to the proposed action set out in the charge notice. If the presiding officer is not satisfied that a disciplinary breach has been proven, or is satisfied that for some other reason it is appropriate to do so, he or she must dismiss the charge (s 171(3)).
Division 10.3.3 provides for an internal review of a decision made by a presiding officer under s 171. Such a review may be triggered by an application by the detainee (ss 173, 175(1)) or may be conducted on the director-general’s own initiative (s175(2)). Following that review, the director-general may confirm the decision under review, amend that decision, or set it aside and substitute a new decision (s 176).
I note that s 228 of the CM Act provides for the Minister to approve forms for the purposes of the Act. If the Minister approves a form for a particular purpose, the approved form must be used for that purpose. The ACT Legislation Register does not include any forms formally prescribed for the purposes of s 156(3), 159, 167(1) or any of the provisions in Chapter 11. However, certain forms and templates were referred to in the Corrections Management (Detainee Disciplinary) Policy 2012 (ACT), which was promulgated under s 14 of the CM Act and was in force at the time of the events discussed here. It is apparent that the Form 1, which was filled in by CO1 Mead on 18 October 2020 was intended to be used for an “initial report” under s 156, and that Discipline Form 3 was intended to function as a “charge notice” under s 159.
No document is in evidence that purports to be written notice of a decision under s 171, as required by s 171(5). It is reasonably clear from the documentary record that the corrections officers in the present case proceeded on the understanding that Mr Islam had made an election under s 167(1) and was therefore liable to have disciplinary action taken against him under s 168 without any further investigation or inquiry. I also note that there is no document in evidence purporting to record a decision made under s 168. However, it is common ground that sanctions of the kind set out in the Discipline Form 3 actually were imposed on Mr Islam.
The events on 19 October 2020
The evidence
The director-general relied on affidavits sworn or affirmed by Corrections Officer Grade 4 Anthony Johnston (CO 4 Johnston), CO1 Mead, CO3 Morey and Corrections Officer Grade 2 Martyn Lawler (CO2 Lawler). None of these officers was cross-examined and I therefore treat their evidence as to what occurred on 19 October 2020 as unchallenged.
CO3 Morey deposes that he considered the Form 1 and prepared the Discipline Form 3 on the morning of 19 October 2020, and that at 10:34am he entered a case note outlining what he described as his “determination” (this is the case note referred to at [6] above). He wrote that the loss of privileges would begin at 3pm that day as he intended to serve Mr Islam with the document after lunch. Around 3pm he attended Mr Islam’s cell with CO4 Johnston and CO2 Lawler. He does not claim to recall specifics of the conversation that ensued. He deposes that he “generally explained the charge to [Mr Islam] as outlined in the Form 3 and asked whether he admitted the contravention and agreed to the proposed penalty”. He asked Mr Islam to sign the form and wrote an “x” on the signature line. However, Mr Islam replied in words to the effect “yeah chief”, “go away chief” and “do what you want”.
CO3 Morey does not recall whether Mr Islam explicitly refused to sign the Discipline Form 3 or just refused to engage. He says that he understood at the time that Mr Islam did not wish the charge to be reviewed and was therefore admitting the charge and agreeing to the penalty. It was CO3 Morey who ticked the boxes on the form to indicate admission and agreement, and wrote the words “refused to sign” on the signature line.
CO2 Lawler deposes that he went with CO3 Morey to Mr Islam’s cell on one occasion in October 2020. To the best of his recollection, CO3 Morey had a discipline form with him. CO3 Morey asked Mr Islam to sign the form, and Mr Islam refused to do so. CO2 Lawler deposes to a belief that CO3 Morey “went through the charge notice with Mr Islam” and that “Mr Islam did not dispute the charge, he just refused to sign the charge”.
CO4 Johnston deposes that Mr Islam was the subject of many disciplinary proceedings in the AMC prior to October 2020 and up to his release on parole in January 2021, and that he himself has been involved in many conversations with Mr Islam. His affidavit describes what can be seen in some closed-circuit television (CCTV) footage taken on the afternoon of 19 October 2020, which I will describe below. He gives a brief and fairly general account of events that is consistent with that of CO3 Morey.
USB sticks containing the CCTV footage were exhibited to the affidavits of CO4 Johnston, CO3 Morey and CO2 Lawler and were tendered. Relevant parts of the footage were played during the cross-examination of Mr Islam. The affidavits and Mr Islam’s answers assist in confirming that the CCTV footage shows a conversation in the doorway of Mr Islam’s cell, and in establishing the identities of the officers involved. Otherwise, the video speaks for itself. The video shows the following:
(a)CO4 Johnston and CO3 Morey entering the Remand Unit at around 3:25pm;
(b)those two officers, with CO2 Lawler, walking through the Remand Unit at around 3:33pm;
(c)the three officers walking along the mezzanine of the Remand Unit and opening the door of Mr Islam’s cell at around 3:37pm;
(d)a conversation at the open door of the cell, lasting until around 3:42pm, in which the person inside the cell is only momentarily visible.
Throughout the video, so far as can be seen, CO3 Morey is holding a piece of paper which is rolled or folded. He is still holding the paper after the conversation ends and the officers are walking away from the cell door. At one point during the conversation, the person on the other side of the doorway (who I take to be Mr Islam) bends over as if to pick something up off the floor. Possibly, the Discipline Form 3 had been placed on the floor and he picked it up or considered doing so. However, I do not think there is a sufficient basis to find that that occurred; nor am I persuaded that it makes a difference.
Mr Islam read three affidavits sworn by himself, but they are successive versions of the same affidavit and have been treated as one. He deposes that he neither saw the Discipline Form 3 nor had any notice of the charge from the time of the incident on 18 October 2020 up to 3pm on 19 October 2020 (the time when, according to the form, it was served on him). His affidavit was sworn before he had seen the affidavits filed by the director-general or the CCTV footage, which indicate that officers went to his cell to serve him with the form after 3pm. I do not regard his precise specification of time as deliberately evasive; rather, I infer that he specifies 3pm because that is the time when the Discipline Form 3 asserts (wrongly as it turns out) that it was served. Reading the affidavit with his Originating Application and his answers in cross-examination, I take Mr Islam’s evidence to be that he did not recall any conversation with corrections officers about disciplinary charges against him on 19 October 2020. When pressed in cross-examination and shown the CCTV footage, he accepted that such a conversation might have occurred but claimed not to have any memory of it. He remained adamant that he had not ticked any box on the Discipline Form 3 and had not admitted the charge against him or accepted the proposed penalty.
Findings
As noted earlier in these reasons, the corrections officers were not cross-examined on their affidavits. Taking their evidence together with the documents and the CCTV footage, I make the following findings:
(a)the Discipline Form 3 was prepared by CO3 Morey on the morning of 19 October 2020;
(b)that afternoon, CO3 Morey attended Mr Islam’s cell with CO4 Johnston and CO2 Lawler in order to serve the Discipline Form 3 on Mr Islam;
(c)Mr Islam did not accept service of the Discipline Form 3;
(d)Mr Islam did not sign the Discipline Form 3 or make any mark on it;
(e)CO3 Morey explained the charge and the proposed disciplinary action orally to Mr Islam;
(f)Mr Islam made a dismissive response, to the effect of “yeah chief”, “go away chief” and “do what you want” and did not directly answer questions as to whether he admitted the charge or accepted the proposed disciplinary action;
(g)CO3 Morey interpreted Mr Islam’s response to mean that he was not contesting the charge or the proposed penalty, and ticked the boxes on the Discipline Form 3 to reflect that position.
Tendency evidence
The affidavits of CO4 Johnston and CO2 Lawler include evidence that those officers have had numerous interactions with Mr Islam in which he refused to engage with disciplinary processes, refused to sign documents, and made various dismissive oral responses to corrections officers when asked questions such as whether he admitted charges against him and whether he accepted proposed disciplinary action. The answers which he was said to give included “fine chief”, “yes chief”, “no worries chief”, “I don’t care. Do what you got to do chief” and “I am not interested. Go away chief”. Notice was given under s 97 of the Evidence Act 2011 (ACT) that the paragraphs of the affidavits describing these interactions would be adduced as evidence of a tendency of Mr Islam to act in a particular way. Under s 97(1), the evidence “is not admissible” for that purpose unless such notice has been given and the Court considers the evidence to have “significant probative value”.
Mr Islam, however, made no objection to any part of these affidavits. There is a significant body of authority supporting the view that the words “not admissible” in provisions of the uniform Evidence Acts ordinarily mean “not admissible over objection”: See, eg, Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; 49 NSWLR 262, [149] (Spigelman CJ); Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232, 243–244 [22]–[26] (Giles JA, Howie and Fullerton JJ agreeing) and cases cited there. In other words, the admissibility rules cast in this form do not operate to exclude evidence unless a party objects to the evidence. Applying that reasoning (which clearly has considerable force), the evidence that Mr Islam has a tendency to respond in a particular way to attempts to discuss disciplinary matters with him is admissible despite s 97 (and is also unchallenged).
In Velkoski v R [2014] VSCA 121; 45 VR 680, [200] (Velkoski), a case which directly concerned s 97, the Victorian Court of Appeal expressed reservations about applying the reasoning in the cases referred to in the previous paragraph. The Court noted that that reasoning had been the subject of criticism in a textbook, and preferred not to express a concluded view in circumstances where the point had not been fully argued. For my part, I doubt whether it would have been open to their Honours to decline to follow a series of decisions in an intermediate appellate court of another State on the construction of uniform national legislation: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ). Sitting as a single Judge, I should follow those cases as a matter of course. A construction of the words “not admissible” in s 97(1) that gives the provision operation in the absence of any objection could be reconciled with that body of authority only if contextual factors showed that s 97 was intended to operate in a different manner to the admissibility rules that were considered in those cases. In any event, the Court in Velkoski ultimately expressed no view, and the case is therefore not authority for any proposition in relation to this aspect of the section.
It must also be acknowledged that there is some tension between the cases referred to at [36] and cases holding that wrongly admitted evidence is capable of giving rise to a miscarriage of justice notwithstanding the absence of an objection: See, eg, R v Chai [2002] NSWCCA 512, [41] (Mason P, Sperling and Bergin JJ). However, that approach has not been taken in civil proceedings, where it is generally accepted that the court should not intervene in matters concerning the admissibility of evidence unless objection is taken by a party: Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893; 130 FCR 424, [13] (Lindgren J). Here, while Mr Islam is unrepresented and therefore at something of a disadvantage, he has had express written notice of this evidence and its purpose (including express reference to s 97), and ample time to seek assistance if minded to do so.
I would therefore admit the evidence of Mr Islam’s usual way of responding to corrections officers seeking to discuss disciplinary issues with him, on the basis that it has not been the subject of any objection. That evidence lends some support to the finding I have set out at [34(f)] above. However, it is not necessary for that finding because CO3 Morey gave unchallenged evidence that Mr Islam responded in this way when asked whether he admitted the contravention and agreed to the proposed penalty on 19 October 2020.
The legality of the process
As noted earlier, there is no dispute that disciplinary action was in fact taken against Mr Islam arising out of his refusal to attend muster on 18 October 2020. It is also clear that that occurred immediately on the afternoon of 19 October 2020, and did not follow any internal inquiry under Division 10.3.2 of the CM Act. Disciplinary action was taken on the understanding that it was authorised by s 168, with Mr Islam having admitted the breach charged and accepted the proposed disciplinary action. The issue that arises is whether that precondition was met.
Section 168 is expressed to apply if the accused detainee “elects under section 167 to have a disciplinary charge dealt with under this division”. An election “under section 167” is an election of the kind that is authorised to be made by s 167(1). That subsection provides that the detainee may elect to have a disciplinary charge dealt with under Division 10.3.1 “by giving the presiding officer a written notice” in which he or she both admits the disciplinary breach charged and accepts the proposed disciplinary action stated in the charge notice.
In the present case, Mr Islam did not give any “written notice” at all in response to the breach alleged or the disciplinary action proposed in the Discipline Form 3 that was discussed with him on 19 October 2020. Ticking relevant boxes on the second page of that form might arguably have constituted such notice, even if he did not sign it. Alternatively, signing a form on which another person had already ticked relevant boxes and giving it to a corrections officer might well amount to giving written notice for these purposes. However, Mr Islam did neither of these things. Nor did he direct anybody to complete the form on his behalf.
The imposition of sanctions on Mr Islam in these circumstances involves a contravention of the CM Act, in that the express precondition for taking disciplinary action under s 168 was not satisfied. Subject to the issues considered later in these reasons concerning the power to grant declaratory relief, that conclusion would be sufficient to support the first of the declarations that Mr Islam seeks.
Mr Islam does not seek an order setting aside the decision to take disciplinary action against him. Nor does he seek a declaration stating explicitly that that decision was invalid or that the ensuing disciplinary action was unlawful. However, in light of the issues that arise concerning the appropriateness of declarations (and the final prayer for relief seeking any other orders that the Court considers appropriate), it is appropriate to consider whether the lack of any “written notice” from Mr Islam had the result that the decision to take disciplinary action was beyond power.
Prima facie, the precondition identified in s 168(1) was not met; the section therefore did not apply; and there was thus no power to take any disciplinary action against Mr Islam without undertaking the process in Division 10.3.2. However, there are two streams of authority that have a bearing on whether or not that is the correct understanding of the provision.
The first stream of authority begins with Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 (SZIZO). In that case, the Refugee Review Tribunal invited the respondents to attend a hearing, as it was required to do; however, instead of sending the written invitation to the person designated as “authorised recipient” (as a provision of the Migration Act 1958 (Cth) required), the Tribunal sent it to another of the respondents. All of the respondents attended the hearing. Echoing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91], the High Court framed the critical question as whether there was to be discerned from the legislative scheme an intention that non-compliance with obligations dealing with the manner of sending and receiving documents would invalidate a decision of the Tribunal (at [32]). Noting that non-compliance with these provisions would not necessarily lead to any loss of an opportunity for the review applicant to advance his or her case (and had clearly not led to any such injustice in the case before it), the Court concluded that the relevant provisions were not “inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review”. Rather, they were “procedural steps”, and a failure to comply with them required consideration of whether in the events that occurred the review applicant was denied natural justice (at [36]).
SZIZO establishes that a failure by an administrative decision-maker to comply with a procedural requirement (such as one relating to the manner in which notice is given) does not necessarily vitiate a decision by that decision-maker. Whether that result follows is a question of statutory construction. An important aspect of that question of construction will be whether breach of the requirement, without more, leads to unfairness or otherwise undermines the objectives of the statute.
In the context of Division 10.3.1 of the CM Act it might be argued that nothing is lost if the accused detainee provides oral, rather than written, notice that he or she admits the alleged disciplinary breach and accepts the proposed disciplinary action. On that basis, it could be said that the requirement for that notice to be in writing is not an “inviolable restraint” that conditions the jurisdiction of the presiding officer to take disciplinary action under s 168.
There are at least two problems with such an argument. First, it is clear that the legislature intended some form of overt election by the detainee, communicated to the presiding officer, to be a precondition for a valid exercise of power under s 168. Thus, s 167(1) taken as a whole expresses an “inviolable limitation”. To hold that an election manifested orally (rather than in writing) without thereby invalidating a decision made in reliance on it would therefore not give effect to a judgement about whether the legislature intended compliance with s 167(1) to be a necessary condition of validity. Rather, it would involve a recasting of the language of the provision. In other words, it would be necessary to read s 167(1) as if the express reference to a written notice was not there. Secondly, the facts of this case illustrate a problem that would arise if ss 167 and 168 were construed in a way that allowed the relevant power to be exercised on the basis of oral rather than written consent and a reason why the legislature is unlikely to have intended to create such a regime. The only evidence of what Mr Islam actually said about the contents of the Discipline Form 3 is in the affidavit of CO3 Morey affirmed more than a year after the event in question. While it is unchallenged and therefore accepted, it was understandably not proffered with particular confidence or precision. Further, it is far from clear what Mr Islam meant by the dismissive language that he used, including whether he had turned his mind at all to the substance of the charge against him or the appropriateness of the proposed action. I will return to this point, insofar as it relates to the facts of the present case, later in these reasons. The point of present relevance is that a construction of Division 10.3.1 that treats oral notice as sufficient is apt to lead to uncertainty and confusion. Whether such consent had in fact been given would depend on potentially differing accounts of the participants in a conversation, and on the construction of words found to have been used in that conversation. For these reasons, I do not think that the provisions can be construed in such a way that written notice by the accused detainee, that they both admit the alleged disciplinary breach and accept the proposed disciplinary action, is not an essential prerequisite to the imposition of disciplinary action under s 168.
The second stream of authority that potentially has some relevance to the question whether the taking of disciplinary action against Mr Islam was authorised is the series of cases on the issue of materiality, beginning with Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (SZMTA). In the first of those cases the plurality (Kiefel CJ, Gageler and Keane JJ) said, at [29]–[31]:
That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
(citations omitted)
That passage was referred to with approval by the majority (Bell, Gageler and Keane JJ) in SZMTA at [44]. Their Honours went on at [45] to state the test of materiality in terms of whether compliance with the relevant requirement “could realistically have resulted in a different decision”. That question, and the necessary steps in answering it, were elaborated further in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 290 ALR 590.
In the present case, it was submitted for the director-general that Mr Islam had not proved the facts necessary to allow a determination that the result could realistically have been different if the error identified above had not occurred. I do not accept that submission.
The error, relevantly, lay in proceeding on the basis that Mr Islam had given the notice contemplated by s 167(1) when in fact he had not. Had that error not occurred, there are a number of things that might have happened.
Possibly, Mr Islam might have been persuaded to give the necessary written notice. Then, CO3 Morey would almost certainly have taken the disciplinary action that he in fact took and s 168 would have authorised it. However, this outcome seems unlikely in the light of the evidence referred to earlier about how Mr Islam usually responded when disciplinary issues were raised with him.
It is much more likely that Mr Islam would have maintained his refusal to sign the Discipline Form 3 and that, if the matter was to be taken any further, a presiding officer would have conducted an inquiry under Division 10.3.2 of the CM Act. That inquiry would necessarily have been conducted, and further decisions made, by someone other than CO3 Morey: s 170(3)(b). It would have been conducted in accordance with the requirements of Chapter 11 of the CM Act which, as noted earlier, acknowledge the application of the rules of natural justice and provide for participation by the accused detainee in a hearing. While it is possible that Mr Islam, in accordance with what was said to be his usual attitude, would have declined to participate, it is also possible that he would have done so. Although he has never denied refusing to attend muster he might have argued, for example, that such refusal was not unjustified in circumstances where he believed himself to be subject to a “regime”. Even without Mr Islam’s participation, it is possible that the officer conducting the inquiry might have taken a different view of the seriousness of the breach to that taken by CO3 Morey. Thus, the inquiry could realistically have resulted in a dismissal of the charge, or the taking of different disciplinary action to that proposed in the Discipline Form 3.
I therefore conclude that the decision to take disciplinary action under s 168 was affected by a material breach of an express condition of the valid exercise of power under that section. The decision was thus affected by jurisdictional error; that is to say, it was not authorised by the CM Act.
Remedies
While the conclusions stated in the previous section of these reasons are to some extent a vindication of Mr Islam’s position, they are not the end of the matter. Issues remain as to what relief, if any, the Court can and should grant.
I begin with declarations 1 and 3 sought by Mr Islam in the Third Amended Originating Application. (Declarations 2 and 4 rely on the Human Rights Act and will be dealt with separately.)
Proposed declaration 3 can be dealt with briefly. The findings that I have made concerning events on 18 and 19 October 2020 do not support a conclusion that the corrections officers involved in the imposition of disciplinary action acted in breach of general law principles of procedural fairness. They made a genuine attempt to explain the charges and the proposed disciplinary action to Mr Islam and ascertain what his position was. In any event, ordinary concepts of the right to a hearing have little if any application in the particular context of Division 10.3.1 of the CM Act. Under the provisions of that Division, the accused detainee is to be consulted only in order to ascertain whether they admit the alleged breach and accept the proposed sanction. If they wish to deny the breach or argue for some lesser disciplinary action, the statute clearly envisages that that will occur in the inquiry under Division 10.3.2 which is triggered by the detainee’s opposition. Of course, what procedural fairness requires in a particular case is at least partly a function of what the particular statute provides by way of procedures (Cf, eg, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, [33]). I have identified what I consider to be a clear failure to follow procedures required by the CM Act in the present case. However, it is preferable to describe that as a contravention of specific requirements of the CM Act (as proposed declaration 1 would do) rather than as a denial of procedural fairness.
Proposed declaration 1 would state that the conduct of the director-general’s officers contravened the CM Act. Although it is framed by Mr Islam to state that the relevant behaviour “is/was in contravention”, no ongoing conduct was identified that is inconsistent with the CM Act. The disciplinary action taken against Mr Islam involved suspension of certain privileges for a short period, which came to an end in October 2020. There is no issue concerning Mr Islam’s current status, rights or obligations under the CM Act. Nor is there any suggestion that Mr Islam might be entitled to recompense for the denial of privileges which, I have concluded, did not have a proper statutory basis. That is because the matters which were the subject of disciplinary action are categorised under the CM Act as “privileges”, rather than matters of entitlement (see ss 154, 188).
It is appropriate to note, however, that (as I have concluded above) the flaw in the process undertaken on 19 October 2020 was one which deprived the disciplinary action taken against Mr Islam of a proper basis in law. Normally, in a judicial review case, an error of that kind would lead to the grant of a writ of certiorari quashing the decision in question, or possibly prohibition to prevent its implementation. Relief of that nature is not sought here, and would not lie in any event, because the decision has no ongoing legal effect capable of being quashed and its implementation is complete. The potential remedies are thus confined to declarations. However, in considering whether a declaration should be granted, I take into account that the contravention is not merely a failure to follow a procedural step that should have been followed. It involves an imposition of disciplinary action that was not authorised by the statute. The proposed declaration would record a real infringement of Mr Islam’s rights.
The declaration is a flexible discretionary remedy but, as pointed out by counsel for the director-general, is at least ordinarily not granted where it will produce no foreseeable consequence for the parties: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–582 (Mason CJ, Dawson, Toohey and Gaudron JJ) (Ainsworth). The traditional and usual function of declaratory relief is to quell a controversy by stating authoritatively the respective legal rights and duties of the parties. That is usually not achieved by a declaration which says no more than that conduct that occurred in the past was in breach of some legal rule: See, eg, Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1, 31–33 (Kiefel J). A declaration of that kind does not identify existing legal rights and therefore may not operate to quell any concrete controversy about such rights.
That is not to say that declarations which simply identify historical breaches of a legal rule or requirement are never made. In Ainsworth, the High Court made a declaration that the Commission had failed to observe the requirements of procedural fairness in publishing certain findings about the appellants. Those findings had no legal force. However, the case was said to involve “no mere hypothetical question”, and to warrant declarations, on the basis that the Commission’s report had and might continue to have “practical consequences for the appellants’ reputations” (at 582). Another example is Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 (Plaintiff M61). That case concerned a process of decision-making that had neither an express basis in statute nor an effect on legal status, but was established by guidelines to advise the Minister for Immigration for the purpose of the possible exercise of his personal, discretionary power in a large number of individual cases. The decisions that were impugned therefore had no direct effect on legal rights, but were made for a purpose closely linked to the statutory scheme and in practice likely to determine the outcome of the Minister’s potential exercises of power. Having concluded that the decision-makers had made errors of law and denied the plaintiffs procedural fairness, the Court held that declaratory relief, similar to that granted in Ainsworth, was appropriate (at [103]–[104]). This was on the basis of both the real interests of the plaintiffs in raising the questions to which the declarations would go, and the public interest in the observance of requirements of procedural fairness in the exercise of the relevant powers.
Declaratory orders that simply record contraventions of the law (as distinct from the legal rights of the parties) are also frequently made in regulatory proceedings, particularly under trade practices legislation. Such declarations in effect merely restate findings of the court which usually form the foundation for a grant of other remedies (such as injunctions or civil penalties) in the same proceedings. They are regarded as having utility on the basis that they define and publicise the type of conduct that constitutes a contravention (See, eg, Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53, [95] (Gummow, Hayne and Heydon JJ)) or that they signify the court’s disapproval of the relevant conduct (Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, 100 (Sheppard J, Foster J agreeing) (Tobacco Institute). In this class of case the utility of declaratory relief arises from considerations of the public interest (see Tobacco Institute at 107 (Hill J)) rather than concrete consequences for the parties.
It was submitted for the director-general that, unless provided by statute, only the Attorney-General or a regulator having the function of enforcing a particular statutory regime can seek a declaration in the public interest. That may state the position too narrowly. In the Tobacco Institute case, for example, the applicant was a consumer organisation which originally sought injunctive relief under s 80 of the (then) Trade Practices Act 1974 (Cth). However, it does appear to be correct that (leaving applications by the Attorney-General aside) declaratory orders which do no more than record contraventions of the law have been regarded as justified solely by the public interest only where, first, what has been breached is a generally applicable norm of conduct, and secondly, the party seeking the declaration has either regulatory responsibility for the relevant legislation or standing to seek other relief in relation to the conduct. However, where a person has a sufficient material interest in the subject matter (albeit not a direct legal or equitable interest), the public interest in vindicating statutory limits on power has been relied on as a justification for affording that person standing to seek injunctive relief without obtaining the Attorney-General’s fiat: Batemans Bay Local Aboriginal Land Council v Aboriginal Development Fund [1998] HCA 49; 194 CLR 247, [49]–[50] (Bateman’s Bay). The injunction, like the declaration, is a discretionary equitable remedy with a significant role to play in the field of public law. The reasoning in Bateman’s Bay supports the view that, if an applicant for declaratory relief has a material interest sufficient to mean that the proposed declaration has some foreseeable consequence for them, considerations of the public interest may weigh in favour of granting that relief. Plaintiff M61, referred to above, is also consistent with that view.
I have concluded that the grant of a declaration would have foreseeable consequences for Mr Islam, even though those consequences may not be likely to come to pass and may not be of great practical significance. The potential consequence that can be readily imagined is that the imposition of disciplinary action on 19 October 2020 could be taken into account, as part of his disciplinary record, in future decisions that might be made about him as a detainee. That may in practice be unlikely, as there is evidence in CO4 Johnston’s affidavit that disciplinary action is not taken into account if it was taken more than 12 months ago or during a prior period of incarceration (CO4 Johnston deposes to the effect that officers are not allowed to take into account disciplinary action in those circumstances, but neither he nor the submissions for the director-general cite any statutory provision to this effect. I take it, therefore, that CO4 Johnston is describing the effect of a policy rather than a legal rule). It may also not be of great practical significance for Mr Islam in any event, given the uncontested evidence that he has been the subject of many disciplinary actions during his periods of detention. One such action more or less may not greatly influence any future decision. However, these are matters of degree rather than objections in principle. Although the prospect of future consequences for Mr Islam might be regarded as tenuous, the position is distinguishable from cases in which declaratory relief has been refused because the relevant controversy was either hypothetical or truly moot (See, eg, Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55).
Once it is accepted that the matter is not devoid of foreseeable consequence, other considerations support a grant of declaratory relief as a matter of discretion. The controversy here concerns an exercise of public power, under a provision that authorises officers to impose detrimental consequences on a class of persons who are (often at least) not well-equipped to look after their own interests. The Court should be slow to allow actions taken in excess of that power to pass without comment or consequence. There can be no doubt that Mr Islam is an appropriate person to commence proceedings in order to enforce the limits on that power in a case concerning disciplinary action against him: standing was not raised as an issue distinct from the availability of declaratory relief. So, for example, Mr Islam would have had a strong case for a public law remedy if his proceedings had been commenced and argued while the disciplinary action was still in force. However, that would have allowed him a mere seven days (five working days) to commence the proceeding, persuade the Court that it warranted an urgent hearing, and complete the hearing. This suggests that a narrow approach to the availability of declaratory relief would make it difficult for the lawfulness of decisions of this type to be tested.
It was submitted that practices in the AMC had changed since the events of 19 October 2020. The change (referred to in the evidence of CO4 Johnston) is that, if a detainee refuses to sign a Discipline Form 3, they are now treated as having not admitted the charge or agreed to the disciplinary action. Had that been done in Mr Islam’s case, he would have no cause for complaint. That takes some, but not all, of the force out of the public interest factors mentioned in the previous paragraph. The proposed declaration would confirm the appropriateness of the new practice. It does not remove the potential consequence for Mr Islam of the action that was taken.
Finally, and contrary to a submission of the director-general, Mr Islam does not appear to have any other remedy, let alone a more appropriate one. The right to institute an internal review of a decision under Division 10.3.3 of the CM act applies only to a decision made by a presiding officer under s 171 (see s 173), as does the power of the director-general to initiate a further review (see s 175(2)). No such decision was made in this case, as a consequence of relevant officers having assumed incorrectly that the power in s 168 had been triggered. The right to institute an external review under Division 10.3.4 applies only to a decision made following internal review (see s 178).
For these reasons, I consider it appropriate to make a declaration reflecting my finding that the disciplinary action taken against Mr Islam was not authorised by the CM Act. That involves a slight redrafting of the declaration proposed by Mr Islam.
The Human Rights Act claim
As noted earlier, Mr Islam’s claim under the Human Rights Act relies on the duty of public authorities not to act in a way that is incompatible with a human right under s 40B of that Act and the power of this Court to grant relief for a contravention of that duty under s 40C(4). He alleges that the conduct of the corrections officers was inconsistent with the rights recognised by s 10(1)(b) (not to be subjected to cruel, inhuman or degrading treatment) and s 19(1) (to be treated, while deprived of liberty, with humanity and with respect for the inherent dignity of the human person).
Both of these human rights have been embodied in a variety of human rights instruments and are the subject of significant bodies of analysis by courts and commentators. I will not attempt to summarise that analysis here.
The relationship between these rights is usefully discussed by Loukas-Karlsson J in Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [198]–[206] (Davidson). Her Honour referred at [198] to Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 at [177], where the equivalent provision in New Zealand was described as protecting against “conduct which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”. In the same vein, her Honour referred at [200] to Castles v Secretary, Department of Justice [2010] VSC 310 at [99] (Castles) where Emerton J observed that, whereas the equivalent of s 10(1)(b) prohibits “bad conduct” towards any person, the equivalent of s 19(1) mandates “good conduct” towards detainees.
These statements indicate that, where the two rights overlap, that recognised in s 19(1) imposes higher standards on the relevant public authority and thus a lower bar for a person claiming infringement. While the starting point for s 19(1) is that a person is lawfully in detention, and thus necessarily subject to a degree of hardship or constraint, it requires that person not to be subjected to additional hardship or constraint (Castles at [108]). Although the two rights are not to be conflated (as noted in Davidson at [198]), the area of overlap is in practice substantial. For example, general conditions of detention as well as specific incidents of ill-treatment are addressed by s 19(1) (Davidson at [199] and the cases cited there) and are also clearly within the scope of s 10(1)(b); and the standard of humanity and respect for inherent dignity plainly addresses the same basic concerns as the prohibition on cruel, inhuman or degrading treatment. It may be only the deprivation of liberty itself that could potentially be said to amount to cruel, inhuman or degrading treatment or punishment without simultaneously infringing the right in s 19(1). The subject matter of the present case—a decision to withdraw “privileges” from Mr Islam for a defined period while he was in lawful detention—is, subject to meeting the relevant thresholds of seriousness, clearly within the subject matter of both provisions. I will therefore consider s 19(1) first on the basis that, if the conduct here does not infringe that provision, it will also not infringe s 10(1)(b).
Two further points should be made about s 19(1). First, the reference to being treated “with humanity” and “with respect for the inherent dignity of the human person” indicates that what is precluded is treatment that ignores the humanity of a detainee or undermines their inherent dignity. That means that minor slights and irritations, or even the imposition of more significant detriments that have some legitimate purpose, do not infringe the right. Some minimum level of severity is required: Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161, [91], [94] (Refshauge J). Secondly, because detention (i.e. deprivation of liberty) is the starting point, detention per se will not constitute an infringement. Nor, in my view, will circumstances or particular acts that go hand-in-hand with being detained, such as being subject to direction and discipline by the detaining authority. Such direction or discipline would need to be excessively strict, or imposed without proper regard for the humanity or dignity of the detainee, in order to infringe s 19(1).
As explained earlier in these reasons, the taking of disciplinary action against Mr Islam on 19 October 2020 involved an infringement of his right to be subjected to such action only in accordance with law. However, more would be required to support a conclusion that his human rights as recognised by the Human Rights Act were also infringed. I have concluded that the taking of disciplinary action did not infringe s 19(1), for the following reasons.
(a)As a result of being in detention, Mr Islam was subject to the directions of corrections officers and to application of the disciplinary regime in the CM Act, including if he refused to comply with such directions.
(b)Mr Islam has never denied that he refused to attend muster. Muster is an important daily process for maintaining the good order of the AMC and monitoring the well-being of detainees. That refusal exposed him to disciplinary action.
(c)The disciplinary action that was taken against Mr Islam was of short duration and not self-evidently disproportionate to the conduct in which he had engaged. There might well have been arguments that Mr Islam could have put in support of more lenient disciplinary action, or that no action should be taken at all, but he did not advance those arguments.
(d)The decision to take disciplinary action was taken swiftly and (as explained above) in contravention of requirements of the CM Act. It could be described in a colloquial sense as peremptory. In some circumstances, the taking of disciplinary action in clear disregard of a detainee’s procedural rights might well amount to conduct lacking respect for their inherent dignity, and thus an infringement of s 19(1), independently of the severity of the disciplinary action itself. Being treated with humanity and respect for one’s inherent dignity includes, in my view, not being subjected to official decision-making that proceeds in contumelious disregard of one’s legal rights. However, the decision-making in the present case did not cross that line. CO3 Morey, who apparently made the decision in question, did so only after attempting to serve the Discipline Form 3 on Mr Islam and trying to ascertain whether he admitted the charge and agreed to the proposed disciplinary action. While I have concluded that CO3 Morey did not have a proper basis under the CM Act for the decision that he then made, there is no basis for a finding that he did not entertain an honest belief that the power was available.
For the same reasons, and taking into account the less stringent standards of behaviour that s 10(1)(b) imposes, the action that was taken against Mr Islam did not amount to cruel, inhuman or degrading treatment or punishment.
The Application will therefore be dismissed insofar as it relies on the Human Rights Act.
Costs
Mr Islam did not seek costs, and in any event has not incurred any costs. The director-general, on the other hand, seeks an order that Mr Islam pay his costs of the proceeding. Each party has enjoyed partial success. I will therefore make no order as to costs.
Orders
The orders of the Court will be as follows.
(1)The Court declares that the decision by a presiding officer of the defendant on 19 October 2020 to take disciplinary action against the plaintiff was beyond power.
(2)The Originating Application is otherwise dismissed.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
Key Legal Topics
Areas of Law
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Administrative Law
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Prison Discipline Law
Legal Concepts
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Jurisdiction
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Limitation Periods
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Natural Justice & Procedural Fairness
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Unjust Enrichment
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Deceased Person's Estate
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