Kheir v Secretary to the Department of Justice and Regulation
[2018] VSC 222
•11 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04586
| ALI KHEIR | Plaintiff |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION | First Defendant |
| and | |
| COMMISSIONER OF CORRECTIONS (VICTORIA) | Second Defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2018 |
DATE OF JUDGMENT: | 11 May 2018 |
CASE MAY BE CITED AS: | Kheir v Secretary to the Department of Justice and Regulation & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 222 |
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APPEAL – Appeal from decision of delegate of the Secretary to the Department of Justice and Regulation – Appeal from decision of Commissioner for Corrections (Victoria) – Whether riots at the Metropolitan Remand Centre on 30 June and 1 July 2015 amounted to an ‘emergency’ – Whether Commissioner for Corrections acted within power – Whether Commissioner for Corrections considered principle beyond that permitted in the statute - Whether applicant entitled to reasons – Whether Commissioner for Corrections showed ostensible bias – Appeal allowed – Application remitted to delegate of Secretary of the Department of Justice and Regulation – Corrections Act 1986 (Vic) s 58E.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G Nash QC with Ms J Swiney | Access Law |
| For the Defendant | Ms C Harris QC with Ms S Fitzgerald | Victorian Government Solicitors Office |
HIS HONOUR:
Background
On 27 July 2013 Mr Kheir was sentenced to an aggregate of nine years and six months’ imprisonment for the offences of aggravated burglary, recklessly causing injury, armed robbery and blackmail. His Honour Judge Chettle set a minimum term before parole eligibility of seven years. He declared that 272 days had been served by way of pre-sentence detention. For present purposes, it is accepted that the earliest date at which the plaintiff is eligible for parole is 28 September 2019.
From 30 June 2015 to 1 July 2015, a riot took place at the Metropolitan Remand Centre (‘MRC’). The plaintiff was imprisoned at MRC at this time. On 2 July 2015 the plaintiff was transferred to Melaleuca High Security Unit at Barwon Prison. Between 2 July 2015 and 11 May 2017 the plaintiff was imprisoned in either Melaleuca or Oleara High Security units. He was held in isolation for long periods of each day during this 22 month period. He was then transferred to the Matilda East Mainstream Unit at Port Phillip Prison on 11 May 2017.
The Corrections Act 1986 (Vic) (‘the Act’) provides a scheme under which the Secretary to the Department of Justice and Regulation[1] (‘the Secretary’) or his delegate is granted a discretion to reduce the length of sentence or non-parole period on ‘account of good behaviour’ while that prisoner is suffering disruption or deprivation during an emergency existing in the prison.[2] That period of disruption or deprivation is referred to as Emergency Management Days (‘EMDs’).
[1]The Secretary is appointed under the Public Administration Act 2004 (Vic).
[2]Section 58E of the Act.
In August 2017, acting on the plaintiff’s behalf, his solicitors applied to the Secretary for a reduction to his sentence to reflect his EMDs.
The Corrections Commissioner rejected this application. The current proceedings concern the lawfulness of that rejection.
These proceedings
By Originating Motion, the plaintiff seeks the following:
A. A Declaration that the riot at Metropolitan Remand Centre on 30 June 2015 and 1 July 2015 and/or its aftermath amounted to an emergency within the meaning of s.58E(1)(a) of the Corrections Act 1986.
B. A Declaration that the decision and/or determination of the Corrections Commissioner, Ms. Jan Shuard, (“the second defendant”), as stated in her letter of 15 September 2017, namely not to grant Mr. Kheir EMDs (“the Shuard decision”) is null and void by reason that:
(1) a proper inquiry should have been undertaken prior to the decision being made but that did not occur;
(2) it was not based on proper or rational considerations; and –
(3) it was arrived at in denial of procedural fairness.
C. An Order of, or in the nature of, certiorari quashing the decision and/or determinations made by the second defendant as stated in her letter of 15 September 2017, not to grant Mr. Kheir EMDs (“the Shuard decision”).
D. An Order of, or in the nature of, certiorari quashing the decision and or determinations made by the Departmental Secretary (“the first defendant”) as stated in his letter of 24 October 2017, not to make any further decision (“the 24 October 2017 decision”).
The plaintiff seeks, in the alternative:
E. An order of or in the nature of mandamus, requiring the defendants to comply with the plaintiff’s request, [as set out in the letter dated 31 August 2017 from Access Law to the second defendant] to furnish a statement of reasons for:
E.1 the Olearia decision of 22 August 2015
E.2 the SMD staff recommendation
E.3 the ACSM decision of 8 September 2015
E.4 the Matilda decision
E.5 the Shuard decision.
F. An order of or in the nature of mandamus, requiring the defendants to provide the documents sought by Mr. Kheir in his Freedom of Information request received on 16 August 2017.
G. An order requiring the first defendant to appoint an independent person as delegate to exercise the jurisdiction under s.58E of the Corrections Act 1986.
H. Such further or other Order as this Honourable Court deems fit.
The grounds relied upon are expressed as follows:
Ground 1: Declaration that riot amounted to an emergency
1. The riot at the Metropolitan Remand Centre on 30 June 2015 and 1 July 2015 and/or its aftermath amounted to an emergency within the meaning of s.58(1)(a) of the Corrections Act 1986.
Ground 2:
2. The Shuard decision is null and void by reason that:
(a) no proper inquiry was made before it was arrived at;
(b) it was made in reliance on the conclusions reached by other persons and without honest, appropriate, rational or due and proper consideration being given to whether those conclusions were reliable or proper;
(c) it was based on speculation, hearsay and/or innuendo;
(d) it was made without due weight being given to relevant evidence and/or considerations, namely the statements of Paul Rowley, Tony Kaynak, Ian George Walsh, Parampal Thapar, Michael Unsworth and Mark Vallance and –
(e) it was made without the plaintiff being given a prior opportunity to be heard in respect of the Olearia decision, the SMD staff recommendation, the ACSM decision and the Matilda decision.
Ground 3:
3. The second defendant misapprehended the s.58E jurisdiction delegated to her by the first defendant, and thereby failed constructively to exercise her jurisdiction when she decided not to make a decision that permitted Mr. Kheir to be immediately released, alternatively to apply for parole forthwith.
Ground 4:
4. The first defendant misapprehended the s.58E jurisdiction conferred upon him by Parliament, and thereby failed constructively to exercise the jurisdiction when he decided not “to make any further decision”.
Ground 5:
5. Mr. Kheir is entitled to a statement of reasons for the defendants’ decisions to place him in the high security sections of the Victorian prison system and the decision to not grant him EMDs.
Ground 6:
6. The time for compliance with Mr. Kheir’s Freedom of Information request has expired and the defendants and their agents have neither complied with the request, not provided any reasons for their failure to comply with the request.
Ground 7:
7. The conduct of the defendants reveals ostensible bias.
Evidence
The plaintiff’s solicitor, Mr Kuek, prepared and filed two affidavits, the first of which recounted in a hearsay form his client’s instructions, and the second exhibited various documents provided after a Freedom of Information (‘FOI’) request. Mr Kheir swore an affidavit asserting that the hearsay assertions in Mr Kuek’s affidavit were factually correct, that he did not participate in the riot and in fact attempted to stop other prisoners from doing so, and that he believed he was entitled to a substantial sentence reduction on account of the EMDs served.
The defendant filed two affidavits of Brendan Money, Acting Deputy Commissioner, Operations, Corrections Victoria. He asserted, amongst other things, that the plaintiff was received into prison custody at Melbourne Assessment Prison on 30 May 2013, classified as a maximum security prisoner and placed in a mainstream unit. One day later, he was transferred to MRC and placed in a mainstream unit. Mr Money deposed that although the plaintiff had been sentenced, he remained at MRC due to difficulties placing him in a different prison because of the plaintiff’s prison and community connections.
The following facts in this paragraph are not in dispute:
(a) On 30 June and 1 July 2015, many mainstream prisoners at MRC left their cells, refused to return to them and rioted in the prison, causing extensive damage. The prison was then unable to accommodate approximately 1000 prisoners.
(b) The plaintiff, despite being a sentenced prisoner, remained at the MRC at this time in the mainstream prison population.
(c) On 2 July 2015, the plaintiff was removed from mainstream classification and placed on a management regime pending an investigation into his alleged involvement in the riot. He was transferred that day to the Melaleuca High Security Unit at Barwon Prison. As a management prisoner, he received one hour out of his cell each day.
(d) On 3 September 2015, the prisoner was classified as a long term management placement. Acting Deputy Commissioner Money, who approved this classification, has stated that the reasons for this approval were:
(i) that it was alleged that the plaintiff had been observed rallying and inciting prisoners during the MRC riot; and
(ii) that there was difficulty in placing him at a distance from his prison connections and from certain other prisoners who presented a risk to the plaintiff.
(e) On 22 August 2016 the plaintiff, while still subject to a management regime, was transferred to Olearia High Security Unit at Barwon Prison. His confinement circumstances remained broadly the same.
(f) On 11 May 2017 the plaintiff was released from long term management and transferred to a mainstream unit at Port Phillip Prison. He currently receives the standard time out of his cell of 11.5 hours per day.
Correspondence
On 24 August 2017, through his solicitor, the plaintiff applied by letter for EMDs. This application was made to the Secretary. The Secretary delegated his power to Ms Shuard, the then Commissioner of Corrections Victoria. In Mr Kuek’s letter[3] he stated:
[3]Affidavit of Gabriel Kuek signed 10 November 2017, Exhibit GK10.
· The plaintiff was placed in Maximum Security for 34 months. During this time, he was kept isolated in his cell for between 22 and 24 hours each day.
· In December 2015 Mr Kheir was charged with riot and sabotage. The sabotage charge was withdrawn at the Committal Mention in June 2016 and in August 2017 the Director of Public Prosecutions discontinued the riot charge.
· Mr Kheir maintains that he took no part in the riot.
· Mr Kuek foreshadowed making submissions but sought access to Mr Kheir’s Corrections files. He asked that the letter serve as Mr Kheir’s application for a sentence reduction but asked for a decision to be deferred until he was in a position to put submissions to the Secretary.
· Mr Kuek requested an urgent response by 29 August 2017.
On 31 August, the Commissioner replied. Relevantly, she stated:
· The fact that the charges were withdrawn does not mean he was not involved in the riots. She wrote:
I am advised that Mr Kheir is seen on CCTV as being among the rioters. … I do not know the reasons for the withdrawal of the charges but his placement was not solely dependent on those charges.
· The decision of 8 September 2015 to endorse Mr Kheir for long term management was made:
… due to intelligence that placed Mr Kheir as a prisoner who probably incited other prisoners in the lead up to the riot, and who participated in the riot. In recommending the long term management placement, the Sentence Management Division staff also considered Mr Kheir’s violent history both in the community and the prisoner system.
· ‘I await your submissions before making a decision on Mr Kheir’s application for EMDs.’
That same day (31 August 2017), Mr Kuek replied to the Commissioner. Relevantly to this application, he stated:
· He wanted a statement of reasons concerning Mr Kheir’s post-riot incarceration or circumstances.[4]
[4]I have paraphrased this heavily.
· If the Commissioner’s 31 August letter was intended to be a statement of reasons, ‘to not make a decision that allows Mr Kheir to be immediately released,’ those reasons are ‘insufficient and inadequate’. Mr Kuek then advised that the statement ‘Mr Kheir is seen on CCTV as being amongst the rioters’ was inconsistent with:
(i) Mr Kheir’s claims that he was not involved;
(ii) Mr Paul Rowley’s testimony that Mr Kheir was trying to stop other inmates but was pushed out of the way;
(iii) Mr Tony Kaynak’s testimony that all inmates covered their faces except for Mr Kheir, who yelled ‘… stop it boys, no, don’t do this’;
(iv) Mr Ian Walsh’s testimony that on 25 June 2015, Mr Kheir told prisoners who were making threats about the future lack of tobacco to ‘“go away”, which they did’; and
(v) Mr Parampal Thapar’s statement that prior to the riot, Mr Kheir was quelling discontent amongst the inmates.
Messrs Rowley, Kaynak, Walsh and Thapar were prison officers at the relevant time. Elsewhere in Mr Kuek’s letter of 31 August 2017, he fashioned questions in the style of interrogatories about matters raised in the Commissioner’s letter of the same day.
On 1 September, the Commissioner responded,[5] stating that her letter of 31 August 2017 was not intended to be a statement of reasons (which was assumed by Mr Kuek’s letter). She stated that if his letter of 31 August was intended to constitute a submissions, ‘then the items raised by [Mr Kuek] will … take time to investigate and consider.’ If it were not a submission, then a consideration of the request (for EMDs) would take longer than Mr Kuek’s timeframe.
[5]Apparently received by Mr Kuek’s office on 4 September 2017.
On 14 September, Mr Kuek’s office ‘renewed the request for reasons.’[6] On 15 September, the Commissioner again wrote to Mr Kuek. She stated, amongst other things, the following:
[6]This assertion is made in a Summary of Facts provided by Access Law. No evidentiary reference is provided. Nothing appears to turn on this.
· The riots were undertaken by many mainstream prisoners and the prison and its facilities were extensively damaged.
· Not all prisoners ‘outside their cells’ were charged.
· ‘As a general principle, I consider it inappropriate to grant any prisoner emergency management days (EMDs) when prisoners have created the emergency.’
· Although Mr Kheir was a sentenced prisoner, he was placed at MRC due to his ‘prison and community connections with other prisoners throughout the prison system and his identified risk with several prisoners.’
· ‘Mr Kheir was identified by Corrections Victoria staff on the CCTV as being in the compound area, during a large part of the riots, appearing to advise many of the prisoners. While Mr Kheir is not identified as creating damage during the riots, I consider Mr Kheir participated in the riots. He was out of his cell and he spent a large amount of time in the prison compound. I do not accept Mr Kheir’s claim that he was not involved in the riots.’
· ‘Your references to testimony of prison officers and their statements appear to relate to Mr Kheir’s committal hearing or parts of the police investigations, which are not documents nor information held by Corrections. The police did give Corrections a copy of the Statement of Material Facts from Mr Kheir’s case.’
· ‘I do not accept Mr Kheir was of good behaviour during the emergency. He spent much of the time of the riots in the compound, engaging with other prisoners. I will not grant him EMDs.’
Mr Kuek replied on the same day (15 September 2017). He argued the Commissioner had failed to exercise lawfully the discretion accorded her under s 58E of the Act. He repeated his ‘standing instructions’ to make application to this Court ‘for a writ of Habeas Corpus’. On 26 September 2017, he wrote to the Secretary, requesting that he exercise his power of delegation to further delegate the s 58E powers to a delegate ‘whose independence and integrity is without question’. He criticised the Commissioner for acting ‘on unsubstantiated hearsay and speculation from undisclosed sources when arriving at her decision.’ This, the author asserted, amounted to a failure to exercise jurisdiction, which was a ‘grave error’.
The Secretary responded that he was ‘satisfied that the Commissioner has made a decision in Mr Kheir’s application for EMDs’ and that he did ‘not propose to make any further decision’.
Exhibited to Mr Kuek’s affidavit is an article from the ABC News website dated 6 September 2015.[7] The Corrections Commissioner is quoted as follows:
Commissioner Shuard said lockdowns were a standard security response across prisons and inmates were not automatically entitled to receive days off their jail term, to compensate them for time spent in lockdown, known as ‘emergency managements days’.
She has considered ‘quite a large number’ of applications for reduced sentences, but none had been granted so far.
‘This is not an entitlement and no prisoners have been granted these emergency days at this point.
‘These are not readily granted, it is rare for us to grant emergency managements days.
‘No prisoner involved in the riot will be granted emergency management days.’
[7]Affidavit of Gabriel Kuek signed 10 November 2017, Exhibit CK21.
Analysis
Ground 1
The plaintiff seeks a declaration that the riot at the MRC on 30 June and 1 July, and/or the aftermath, amounted to an emergency within the meaning of s 58(1)(a) of the Act. The defendants do not dispute that the MRC riot amounted to an emergency. It is apparent from the text of the 15 September 2017 letter from the Commissioner to Mr Kuek that the Commissioner accepted the riot was an emergency for the purposes of the exercise of her s 58E discretion. She then provided reasons why she did not accept that the plaintiff had been of good behaviour during this emergency and that it was therefore inappropriate to grant emergency management days.
There is, therefore, no real controversy to be settled. True it is that the declaration sought by the plaintiff extends not just to the riot, but also to ‘its aftermath’, whatever that indeterminate term may mean. However, Mr Nash QC for the plaintiff clarified, in oral submissions, that he was not asking this Court to quantify in days the period of the emergency, simply to note that the emergency extended beyond two days and also covered the response to it. He referred to Ms Shuard’s words in the ABC News report of 6 September that lockdowns were a standard security response across prisons. I make no finding on the duration of the emergency. It is sufficient to say that, in my view, it ought extend not just to the acts that constituted the emergency, but also to the immediate response to those acts.
Having said that, a declaration in the terms sought ought not be made. Although the court’s discretion as to declaratory relief is broad, it generally does not extend to matters that are abstract or theoretical.[8] Furthermore, there is no dispute that the riot did constitute an emergency within the meaning of s 58(1)(a) of the Act, whether evaluated objectively or subjectively.[9]
[8]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 355-357 [47]-[49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Australasian College of Cosmetic Surgery Ltd v Australian Medical Council Ltd (2015) 232 FCR 225, 244 [108] (Katzmann J), citing Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437 (Gibbs J); Gardner v Dairy Industry Authority (NSW) (1977) 18 ALR 55, 60 (Barwick CJ).
[9]It is unclear as to whether s 58E uses the term ‘emergency’ as an objective jurisdictional fact. The Victorian Court of Appeal in Anderson v Pavic [2005] VSCA 244 favoured (in obiter) an approach that did not treat an ‘emergency’ as an objective jurisdictional fact but rather as turning upon the decision maker’s satisfaction that an emergency in fact existed. This approach, also taken by McMillan J in Knight v Shuard [2016] VSC 413 may be inconsistent with recent High Court authority, in particular, the Malaysian Declaration Case (Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144 [57] (French CJ), [109] (Gummow, Hayne, Crennan and Bell JJ)). It is unnecessary to address this potential inconsistency as the existence of an ‘emergency’, whether evaluated objectively or subjectively, is undisputed in this matter.
Grounds 2 and 3
These grounds contend in various ways that the Commissioner did not act within the power granted her by s 58E. It was argued that she failed to accord the plaintiff procedural fairness in rejecting his solicitor’s application for EMDs. I shall set out the relevant legislative scheme.
Section 58E of the Act relevantly provides:
(1)The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation –
(a)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served;
…
Section 112 of the Act empowers the Governor in Council to make regulations concerning EMDs. Regulation 78 of the Corrections Regulations 2009 relevantly provides that the number of EMDs granted for each day on which the emergency exists ‘must not exceed’ four.
The Shuard decision not to grant the plaintiff EMDs was a decision made under s 58E. This discretion within is relevantly enlivened if the Secretary or his delegate has considered and been satisfied of three preconditions:
(a) the plaintiff has been of ‘good behaviour’,
(b) while suffering disruption or deprivation,
(c) during an emergency existing in the prison.[10]
[10]I have followed the ‘subjective’ obiter in Anderson v Pavic [2005] VSCA 244 insofar as this precondition is concerned. See footnote 9.
In substance, the plaintiff contended that no proper inquiry had been undertaken, the Commissioner relied on conclusions reached by others, she based her decision on speculation and/or innuendo, she refused to give weight to the evidence given by the earlier mentioned prison officers and she misapprehended the s 58E jurisdiction delegated to her. In my view, many, but not all, of these criticisms are misconceived.
It is clear from the 15 September letter that the Commissioner formed the view that the applicant had not been of good behaviour during the emergency and thus the discretion to grant EMDs was not enlivened. In my view, on the relevant material available to the Commissioner, it was open to her to reach this conclusion, notwithstanding the prison officers’ committal evidence referred to in Mr Kuek’s letter of 31 August.
Although an administrative tribunal is required to ‘make findings of fact based upon material which is logically probative’,[11] unless otherwise provided by statute, there is no rule of administrative law that a decision maker in the Commissioner’s position is bound by the rules governing admissibility of evidence.[12] It would be an absurd and unworkable outcome if every administrative decision in a prison that concerned a prisoner’s entitlements could only be made on evidence admissible in a court setting. The Commissioner was entitled to inform herself from primary and secondary sources. She was entitled to rely on the conclusions of others and I consider that her correspondence demonstrates that she did so conscientiously. I reject the written submissions that assert that the decision was the product of a process that was dishonest and inappropriate, and I also reject the submission that her factual findings were based on speculation and innuendo.
[11]Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, 580 [97] (Flick and Perry JJ).
[12]Cadbury UK Ltd v Registrar of Trade Marks (2008) 107 ALD 316, 321 [17] (Finkelstein J). See, generally, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 282 (Brennan CJ, Toohey, McHugh and Gummow JJ).
I have reviewed the correspondence in this matter at paragraphs [11] to [19]. I consider that the plaintiff was provided with a reasonable opportunity to place submissions before the Commissioner, and although obscured by legal verbiage and threats of a writ of habeas corpus, in fact did so. Similarly, had Mr Kuek wished to place before the Commissioner the depositional evidence of prison officers, he could have done so. As it is, he placed the effect of this evidence before her. Section 58E does not require the Commissioner to undertake inquiries to uncover material beyond what is actually or constructively before her at the time of the decision.[13]
[13]Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458, 469 (Hill J, Gummow and O’Connor JJ agreeing).
Whether sufficient weight was given to any particular piece of evidence is, except in limited exceptions,[14] a fact for merits review and not for judicial review.[15] As I have said, on the material before me, I consider that there was evidence to support the Commissioner’s finding that the plaintiff was involved in the riot. It is accordingly not for this Court to weigh up the apparent effect of the prison officers’ evidence and measure it against the CCTV footage.
[14]See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 369 [85] (Hayne, Kiefel and Bell JJ).
[15]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [30] (French CJ).
I am more concerned with the assertion that the Commissioner failed properly to carry out the duty imposed on her by s 58E, namely that she considered it ‘inappropriate to grant any prisoner EMDs when prisoners have created the emergency.’[16] It can readily be understood that good policy reasons may lie behind this general statement of principle. Some prisoners may create an emergency so as to provide a fertile ground for EMD applications for those who remain in their cells. If all the Commissioner was saying was that this general principle was a factor, albeit an important one, that was to be taken into account along with all the other factors that bore upon her s 58E consideration, then this approach would be unexceptional. If this general principle were applied in that sense, it is not an irrelevant consideration.[17]
[16]This passage was contained in the Commissioner’s letter of 15 September.
[17]Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 641 (Brennan J).
After some careful thought, I have concluded that the Commissioner was saying a good deal more than this. These were considered words expressed in a terse exchange of correspondence with the plaintiff’s solicitor. The words ‘(a)s a general principle, I consider it inappropriate to grant any prisoner emergency management days when prisoners have created the emergency’ convey to me the following meaning: ‘as a general principle, no prisoner shall receive EMDs, regardless of his activity during the riot.’ In my view, this is the plain meaning of this passage. If this conclusion is correct, then this general principle is not ‘consistent with the statute’.[18] The consideration of that principle is beyond that permitted in the ‘subject-matter, scope and purpose of the statute’.[19] Ground 2(a) has thus been made out. To the extent that Ground 3 asserts that the Commissioner misapprehended the s 58E discretion delegated to her, for the reasons expressed above, this ground is made out in part.
[18]Ibid 640.
[19]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J).
Ground 4
This ground complains of the Secretary’s refusal to treat the Commissioner’s decision under s 58E as invalid. On 26 September 2017 the plaintiff’s solicitor wrote to the Secretary and argued that the Commissioner had ‘failed to carry out her jurisdiction’ and requested that the Secretary re-make the decision.
In my view, the Secretary’s refusal was correct. A decision under s 58E had already been made by the Commissioner. The jurisdiction, whether exercised rightly or wrongly, had been exercised.[20]
[20]Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALR 86, 94 (Brennan J).
Ground 5
The common law does not impose a duty upon administrative decision makers to provide reasons.[21] Similarly, there is no statutory requirement, express or implied,[22] for reasons to be provided in relation to prisoner placement decisions. Furthermore, even if the applicant were able to persuade a decision maker that he or she was a ‘tribunal’ under s 8(4) of the Administrative Law Act 1978 (Vic), the request for reasons by Mr Kuek came well outside the 30 day time limit for such a request.[23]
[21]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 497-498 [43] (French CJ, Crennan, Bell, Gageler and Keane JJ), citing Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
[22]See, generally, Sherlock v Lloyd (2010 27 VR 434, 437-438 [15]-[16] (Maxwell P, Ashley JA and Byrne AJA).
[23]See Administrative Law Act 1978 (Vic) ss 8(4), 8(5).
Ground 6
This ground was not pressed.
Ground 7
Mr Nash merged this ground with his submissions on Grounds 2 and 3, and did not advance it further. It is sufficient to say that, if my conclusions on Grounds 2 and 3 are correct, then I consider that ostensible bias has been demonstrated by the Commissioner. I accept that executive decision makers are entitled to consider and apply policies, even with an inclination or predisposition of the mind as to the result of the relevant decision, without contravening the bias rule.[24] I also accept that findings of pre-judgment ought not readily be made against a decision maker who has made a decision against a background of departmental policy. However, that principle does not extend to where an expression of departmental policy evidences an error of law.[25]
[24]Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, 531 [71] (Gleeson CJ and Gummow J).
[25]Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, 242-243 [19] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ), citing Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, 565 [188]-[189] (Hayne J).
I have set out the terms of the 15 September 2017 letter in paragraphs [16] and [33] of these reasons, and in paragraph [33] I have set out what I consider to be the plain meaning of the ‘general principle’ sentence. The conclusion that the Commissioner’s mind was closed to the plaintiff’s application is, I consider, inevitable. An independent observer might reasonably apprehend from this statement that the decision maker was ‘so committed to a conclusion already formed as to be incapable of alteration’.[26] The comments attributed to the Commissioner from the 6 September 2015 ABC news article and reproduced in these reasons at paragraph [19], while not as finely focussed as those in the 15 September 2017 letter, would, I consider, add to this independent observer’s apprehension.
[26]Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, 532 [72] (Gleeson CJ and Gummow J). See also McGovern v Ku-Ring-Gai Council (2009) 72 NSWLR 504, 508-509 [14]-[23] (Spigelman CJ).
The plaintiff submitted that, in the event that bias were demonstrated, an order in the nature of mandamus should follow to compel the appointment of an independent delegate. Such a grant of an order in the nature of mandamus is ‘futile’[27] because the appointment of a wholly independent delegate is not statutorily possible. The Secretary’s scope to delegate is confined to ‘the Commissioner or to any other employee of the Department or to any officer within the meaning of Part 5 or Part 9 …’[28] It is impossible for the Secretary to delegate beyond the Department of Justice and Regulation and so any delegation will not be wholly independent.
[27]R v Public Service Commissioner (Cth); Ex parte Killeen (1914) 18 CLR 586, 590 (Griffith CJ).
[28]Section 8(1) of the Act.
In this case, it will be necessary for the remitted decision to be made by a delegate who is an officer or employee of the Department of Justice and Regulation within the meaning of s 8. Obviously, that person will not be ‘independent’ and will in fact be the Secretary’s delegate. It would be highly undesirable, however, for that person to have had any previous involvement in Mr Kheir’s s 58E application.
Conclusion
Ground 2(a), Ground 3 (in part) and Ground 7 are made out. I propose to make the following orders:
1. The appeal be allowed.
2. The s 58E application be remitted to a delegate of the Secretary of the Department of Justice and Regulation, who, if possible, has had no previous involvement with that application.
I will hear the parties as to costs.
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