McKane v Commissioner of Corrective Services of New South Wales (No. 3)

[2018] NSWSC 1060

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

McKane v Commissioner of Corrective Services of New South Wales (No. 3) [2018] NSWSC 1060

Hearing dates:

13 April 2018

Date of orders:

13 July 2018

Decision date:

13 July 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Proceedings dismissed

Catchwords:

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – applicant in custody – applicant intends to bring proceedings in High Court where filed documents must be typed – decision affecting conditions of applicant’s incarceration –refused access to laptop with write and edit functionality in cell – decision not so unreasonable that no repository of the power could have made it -
application dismissed

 

JURISDICTION – Supreme Court – scope of supervisory jurisdiction – decision did not deny applicant access to the High Court – Supreme Court Act 1970 (NSW) ss 23 and 69 – scope of judicial review jurisdiction

  CRIME – administration of prisons – New South Wales – ordinary managerial powers exercised by prison authorities are reviewable only for bad faith, improper purpose or legal unreasonableness

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW) s 233
Crimes (Administration of Sentences) Regulation 2014 (NSW) regs 7, 8, 9, 45, 47, 48, 124,126, 130, 163, 177
Supreme Court Act 1970 (NSW) ss 23, 69
Uniform Civil Procedure Rules 2005 (NSW) r 7.36

Cases Cited:

Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386
Bernard-Ross v State of New South Wales [2018] NSWSC 182
Carroll v Sydney City Council (1989) 15 NSWLR 541
Clark v Commissioner for Corrective Services [2016] NSWCA 186
Coco v The Queen (1994) 179 CLR 427
Commissioner of Corrective Services v Liristis [2018] NSWCA 143
Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Livestock Corporation (1990) 96 ALR 153
Fyfe v South Australia [2000] SASC 84
House v The King (1936) 5 CLR 499
Leech v Governor of Parkhurst [1988] AC 533
Liristis v State of New South Wales [2018] NSWSC 39
McEvoy v Lobban [1990] 2 QdR 235; (1998) 48 A Crim R 412
McKane v Commissioner of Corrective Services of New South Wales [2015] NSWSC 737
McKane v Commissioner of Corrective Services New South Wales [2016] NSWSC 1497
McKane v Commissioner of Corrective Services New South Wales [2016] NSWSC 1655
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82
Plaintiff SI0/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31
Raymond v Honey [1983] 1 AC 1
Smith v Commissioner for Corrective Services [1978] 1 NSWLR 317
Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87

Texts Cited:

Aronson & Ors, Judicial Review of Administrative Action and Government Liability (6th edition, Thomson Reuters, 2017)

Category:

Procedural and other rulings

Parties:

Jeffrey Alan McKane (Plaintiff)
Commissioner of Corrective Services of New South Wales (Defendant)

Representation:

Counsel:
In person (via AVL) (Plaintiff)
P Herzfeld (Defendant)

  Solicitors:
Self-represented (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2016/277266

Publication restriction:

Nil

Judgment

1. The plaintiff is currently serving a sentence of imprisonment following his conviction for a number of sexual offences against children and for possessing child abuse material. He was sentenced to imprisonment for 18 years commencing 12 May 2011 and expiring 11 May 2029 with a non-parole years of 13 years expiring 11 May 2024.

2. On 27 February 2014 he filed a summons in this court effectively seeking judicial review of three decisions of the Commissioner of Corrective Services made on 21 September 2012, May 2013 and 21 January 2014 denying him the right to purchase his own laptop and printer. The reason he had sought that right was for the purpose of the legal studies course he was pursuing whilst in custody. He was unsuccessful in that challenge: McKane v Commissioner of Corrective Services of New South Wales [2015] NSWSC 737.

3. On 30 June 2016, while he was a resident at the Goulburn Correctional Centre, he wrote to the defendant, the Commissioner of Corrective Services of New South Wales, seeking, amongst other things, permission to purchase his own laptop and printer. The request in his letter of 30 June 2016 was also in order for him to pursue the legal course of studies he was undertaking.

4. It does not appear that the plaintiff received a reply to the letter of 30 June 2016. He claims to have written a follow up letter on 1 August 2016 but there is no record of that letter being received.

The present proceedings

5. On 15 September 2016 the plaintiff filed a document entitled Statement of Claim which, relevantly, sought pro bono assistance pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.36 and an order:

That the decision of the CSNSW [Corrective Services New South Wales] Commissioner to deny the plaintiff’s request to purchase and use in his cell a laptop computer be set aside.

6. The pleading which followed said that judgment had been given by the Full Court of the Family Court on 29 June and 6 July 2016 in two family law proceedings in which the plaintiff was involved. The plaintiff said that it was his intention to seek special leave to appeal to the High Court from those judgments. He said that to do so, correct documentation had to be filed with the High Court, and he could not get sufficient time on a computer to prepare such documents. He said the use of a laptop computer in his cell would mean that he could prepare the necessary legal documents and research points of law. He acknowledged that a similar issue had been raised in the earlier proceedings, but he said at that time he was not seeking an appeal to the High Court.

7. The matter came before Beech-Jones J on a motion for pro bono assistance. The plaintiff informed the judge that he had been told by another inmate that the High Court would not accept special leave applications that were handwritten. He also needed assistance in relation to the application and on that basis he sought pro bono assistance. Justice Beech-Jones delivered judgment on the notice of motion on 18 October 2016: McKane v Commissioner of Corrective Services New South Wales [2016] NSWSC 1497. He adjourned the notice of motion for two reasons. The first was to enable the Commissioner to comply with an order made earlier by the Registrar that the Commissioner was to respond to the plaintiff’s request to have access to a laptop computer in his cell. The second reason was to make an enquiry of the High Court whether it was the case that the High Court would not accept handwritten documents from self-represented litigants who were incarcerated.

8. The matter then came before Campbell J on 11 November 2016: McKane v Commissioner of Corrective Services New South Wales [2016] NSWSC 1655. Justice Campbell noted that the solicitor for the Commissioner had made enquiries of the High Court, and had been informed that, although the Rules enabled a dispensation to be granted for the filing of typed documents, leave to proceed on the basis of handwritten documents had only been allowed once in the previous 14 years. Nevertheless, Campbell J dismissed the plaintiff’s application for pro bono assistance, holding that the plaintiff was well-resourced and capable of conducting litigation himself.

9. The Commissioner responded to the plaintiff’s request on 1 November 2016. He refused the request.

10. On 12 December 2016 the plaintiff filed an amended summons challenging the Commissioner’s decision of 1 November 2016.

11. On 29 June 2017 the plaintiff was transferred to Junee Correctional Centre.

12. For reasons not made clear, on 25 July 2017, the Crown Solicitor, acting for the Commissioner, wrote to the plaintiff saying that the Commissioner proposed to make a new decision about whether to authorise the plaintiff to purchase and use his own laptop computer and printer. The letter said that the Commissioner would take into account all relevant information in making the new decision including the plaintiff’s letter of 30 June 2016, and the summons and associated documents filed in the proceedings. It also sought from the plaintiff any further material he wanted to submit.

13. The plaintiff wrote to the Commissioner on 31 July 2017. In that letter he said this:

The current printing arrangements are now satisfactory and if those current printing arrangements continue there will be no need to purchase my own printer. Therefore I withdraw my application to purchase and use in my cell my own printer.

However, there is still insufficient computer access time in which to properly prepare two appeals to the High Court as well as maintain sufficient study time.

The Commissioner’s decision

14. On 7 September 2017 the Commissioner made his decision in relation to the plaintiff’s application. The decision was in the form of the approval of a recommendation given to the Commissioner. The recommendation was that the Commissioner not approve the application by the plaintiff to purchase his own laptop with write, edit and legal research functionality for in cell use, and that the Commissioner approve the access to “green computers” by the plaintiff for the purpose of producing documents in relation to his legal proceedings.

15. The recommendation dealt with by the Commissioner followed an analysis over seven pages which dealt with the historical background to the plaintiff’s application, a consideration of the plaintiff’s then current position at Junee Correctional Centre, a consideration of operational matters which dealt with access to computers generally, with security concerns, with current laptop policy, and with considerations specific to the plaintiff.

16. When dealing with access to computers, the recommendation noted that all inmates had access to computers within correctional centres, with access being allocated on a fair and reasonable basis having regard to offenders' participation in educational, employment, legal and rehabilitation paths. The recommendation noted that the Legal Info Portal, which provided information on relevant topics and processes in civil, family and criminal law and information provided by key government agencies such as Housing NSW, CentreLink, the State Debt Recovery Office and the Child Support Agency, was accessible via green computers only. That Portal was intended to assist inmates to address their outstanding legal issues and responsibilities while in custody, and thereby to assist their reintegration into the community after release.

17. It noted further that inmates were able to send requests to the Metropolitan Remand and Reception Centre Library for anything they were unable to access on the Portal.

18. The section headed “Security Concerns” detailed the following:

7.   The use of laptops with write and edit functionality by inmates is known to pose security concerns, for reasons including those set out below.

8.   In the past, CSNSW operated a laptop pilot program in which a small number of inmates was permitted to use laptops (supplied to them by their families or solicitors) on the basis that:

a.   the brand, model and operating system were specified by CSNSW; and

b.   each of the laptops had been checked and "sanitised" by the Security Division of the Information Security, Digital and Technology Services section of the NSW Department of Justice before being provided to the inmate.

9.   The process of "sanitising" these laptops was intended to ensure that laptops could be used by inmates for permitted purposes, such as viewing e-briefs, but could not be used for purposes that were not permitted (for example, to access the Internet).

10.   The security concerns with those laptops (twelve in total) included the following:

a.   at least some of those laptops had functioning USB ports, which enabled the charging of other devices (such as mobile phones);

b.   at least one of those laptops was wi-fi enabled, which enables the connection of the laptop to wi-fi Internet; and

c.   CSNSW discovered that one of those laptops had had its operating system upgraded, which could only have occurred through an Internet download.

11.   CSNSW was aware that access to a mobile phone or modem might enable an inmate to access the Internet using these laptops. CSNSW was also aware that:

a.   mobile phones had sometimes been found within correctional centres, despite not being permitted;

b.   extremely small modems (the size of a thumb nail) were available on the market, and such devices would be likely to be difficult to detect if brought into a correctional centre; and

c.   certain upgrades of the operating system could result in an inmate having uncontrolled Internet access.

12.   The Video Conferencing Unit took over the management of the laptop pilot program in early 2016. Investigations were undertaken into the security concerns and an attempt made to address them. There was consultation with people within the Australian Federal Police, NSW Police and the Courts, as well as Department of Justice IT Branch, in relation to the technical and security concerns. Following that consultation, the view was formed that the only way to make the laptops secure was to make them 'read only', with no ability to create documents or to save data to the hard drive (as this permits modification of whatever "sanitising" process is undertaken). As a consequence, the current iteration of the CSNSW laptop program, discussed below, involves the use of laptops with "read only" functionality.

13.   In this context, the risks associated with the use of laptops with write and edit functionality by inmates are substantial, and include:

a.   the major security risk that would arise if inmates, particularly those who have been identified as a risk to national security, gain uncontrolled access to the Internet; and

b.   the risk associated with inmates with particular profiles (e.g. sex offenders) having access to the Internet, noting amongst other things that pornography may be used as a form of currency within correctional centres.

c.   The potential for inmates to create documents that purport to be official documents of CSNSW that can be used to affect their management in custody.

d.   The risks involved in inmates engaging in unauthorised communications both within and external to Correctional Centres.

19. The section headed “Current Laptop Policy” said that it was no longer the practice to allow inmates to obtain a laptop computer for private use or to provide any inmate with a laptop with write and edit functionality. Of the original twelve laptops referred to as part of the pilot program, only three inmates still had those laptops, and consideration was being or would be given to removing them. The recommendation said that the plaintiff’s request involved an application for the Commissioner to permit an exception to the current practice. It noted that it had never been the practice to allow inmates to have access to the internet for the purpose of legal research.

20. The report noted that the plaintiff required the computer for the purpose of seeking special leave to the High Court and that the High Court would only accept printed documents and would not accept handwritten documents.

21. On 14 November 2017 the plaintiff filed a further amended summons which sought to withdraw the summons filed 15 September 2016 and the amended summons filed 12 December 2016. The orders sought in the further amended summons were these:

(b)   That the decision of the Commissioner of Corrective Services New South Wales, “the Commissioner”, made 7 September 2017 to deny the purchase and use of a laptop computer in cell be set aside.

(c)   That the plaintiff be permitted to purchase and use in his cell a laptop computer customised to Corrective Services NSW (CSNSW) policies or in the alternative that CSNSW provide a desktop computer, a “green computer” for the plaintiff’s use in his cell.

(d)   That the Commissioner provide a desktop computer that is customised in accordance with CSNSW policies at no cost to the plaintiff.

The claim based on Liristis

22. On 3 or 4 March 2018 the plaintiff was transferred from Junee Correctional Centre to the Hunter Correctional Centre. That led to the plaintiff filing a notice of motion on 26 March 2018 seeking to adjourn the hearing of the proceedings until 29 June 2018 and seeking leave to file and serve another amended summons, an amended affidavit and an amended summary of argument. The plaintiff sought in the alternative that he be granted leave to give oral evidence to amend the existing documents at the hearing.

23. What was behind the notice of motion was said by the plaintiff to be the more restrictive access to computers that he has experienced at the Hunter Correctional Centre compared to that at the Junee Correctional Centre. In short, the plaintiff said that things had gone back to being as restrictive as they had been at Goulburn Correctional Centre before he was transferred to Junee Correctional Centre.

24. When the proceedings were called on for hearing, the plaintiff, as expected, appeared for himself. He sought the adjournment requested in the notice of motion. In the light of the fact that the plaintiff was challenging a decision of the Commissioner given on 7 September 2017, I enquired what the relevance was of further evidence concerning his new situation at Hunter Correctional Centre. Counsel for the Commissioner helpfully drew my attention to the decision of Schmidt J in Liristis v State of New South Wales [2018] NSWSC 39. That decision, on its face, appeared to be some authority for the proposition that this Court had the power not simply to review, in an administrative law sense, decisions of the Commissioner regarding computers and other matters, but also had the power directly to order that the Commissioner provide such facilities for a plaintiff. If Liristis was correct, it was appropriate to consider the plaintiff’s current position because it did not simply involve a determination of the correctness of the Commissioner’s decision of September 2017.

25. In accordance with directions made, the plaintiff had also filed a document entitled Reply to Written Submissions which, amongst other things, set out what he described as a “computer access diary” since he had arrived at Hunter Correctional Centre. Counsel for the Commissioner suggested that if the material in paragraphs 7 and 8 of the plaintiff’s written submissions were to be treated as evidence of the current position it would avoid the necessity to adjourn the hearing of the proceedings, and it would make easier the giving of the plaintiff’s evidence regarding that present position. The plaintiff was agreeable to that course of action. Accordingly, I have treated paragraphs 7 and 8 of the Reply to Written Submissions as further evidence from the plaintiff.

26. At the conclusion of the hearing I reserved my judgment in the matter. Since that time the Court of Appeal has given judgment in the appeal by the Commissioner from Schmidt J’s decision in Liristis. The Court of Appeal granted the Commissioner leave to appeal and, by majority, allowed the appeal, set aside the orders made by Schmidt J on 31 January 2018 and in lieu ordered that the summons be dismissed: Commissioner of Corrective Services v Liristis [2018] NSWCA 143.

27. Liristis concerned an accused, remanded in custody before his trial, who sought access to a laptop computer in order, he claimed, properly to prepare his defence. He had been refused that right by the Commissioner and that refusal led to the filing of the summons seeking a declaration that he had a right to prepare properly for his trial, and orders that he have a laptop computer and printer, and not be hindered from carrying out the preparation for his trial.

28. The Court of Appeal expressed some doubt about the basis upon which Schmidt J made the orders in the plaintiff’s favour. Justice Beazley said:

[6]   As I have indicated, a central issue on the appeal was whether the primary judge had jurisdiction to make the orders. Two sources of jurisdiction or power were suggested: judicial review pursuant to the Supreme Court Act 1970 (NSW), s 69 and the Court’s powers under the Supreme Court Act, s 23. Both the Commissioner and the respondent submitted that the likely source of jurisdiction exercised by her Honour was pursuant to s 69. However, the respondent relied upon the “inherent jurisdiction [of a superior Court] to act in aid or control of the inferior courts” and s 23 to support the orders made by the primary judge: see Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685.

[7] I agree with Basten JA, at [55], that it is unlikely that her Honour was exercising the powers of the Court pursuant to s 69. As Basten JA has explained at [50]-[54], inconsistently with the conventional approach on judicial review, her Honour made findings of fact; made her own decision that it was necessary for the respondent to have his own computer; and thirdly, no legal error was identified.

[8]   It is apparent from the respondent’s affidavit filed in the proceedings before the primary judge that he contended that he was seeking relief pursuant to the court’s power to deal with a contempt. The alleged contempt was an interference with his right to access the courts. I also agree with the reasons of Basten JA in rejecting this as a source of jurisdiction or power to make the orders.

[9]   This leaves the more difficult question as to whether the orders were made in the court’s supervisory jurisdiction and/or pursuant to the Supreme Court Act, s 23. Basten JA and White JA have come to different views on this question. I am persuaded that Basten JA is correct in his analysis of the nature and extent of the court’s jurisdiction and powers and with his conclusions on this question. I also agree with the orders his Honour proposes. …

29. Her Honour concluded at [35]-[36] that s 23 of the Supreme Court Act 1970 (NSW) did not support the orders made by the primary judge. Her Honour said:

[35] Despite the apparently wide ambit of s 23 and the inherent jurisdiction, it is difficult to support the orders of the primary judge on the basis of existing authority and by analogy to recognised powers associated with that jurisdiction. While the respondent may be correct to submit that a stay need not always be brought in the Court or Tribunal where proceedings will take place, it does not follow that a power of the kind asserted by the primary judge also exists. A review of the case law does not support the power to order a non-party to criminal proceedings to take some positive action to prevent an abuse of process. Indeed, leaving aside the special protective jurisdiction, the Supreme Court’s inherent and/or s 23 jurisdiction is essentially preventative, as Mason P explained in his article referred to above at [15], regardless of the form in which any relief is framed.

[36]   Accordingly, adopting the conception of the inherent jurisdiction as a power or collection of powers, I cannot accept that a power exists to make positive binding orders against a third party to criminal proceedings of the kind made by the primary judge. This is all the more so where the order made directly affected the operations of a correctional facility.

30. Justice Basten concluded as follows at [41]:

[41]   The reasons set out below support the following propositions:

(1)   The primary judge had power to review administrative decisions made by the Commissioner of Corrective Services (or the governor of the gaol) in exercise of his custodial functions, but:

(a)   did not purport to exercise any such power, and

(b)   would have been in error in doing so in the absence of any demonstrated error on the part of the Commissioner.

(2)   There is a power in a court with jurisdiction to conduct a criminal trial to order a stay to ensure that the trial will not be unfair, on appropriate conditions or permanently:

(a)   however, the District Court, not the Supreme Court, was vested with criminal jurisdiction with respect to the indictment against the respondent; and

(b)   the judge, correctly, did not purport to make any order staying, conditionally, the conduct of the trial.

(3)   Subject to the powers of the Court of Criminal Appeal to deal with appeals from interlocutory orders in criminal proceedings on indictment:

(a)   the Supreme Court may have independent supervisory jurisdiction with respect to the conduct of criminal trials in the District Court, but

(b)   if it does, those powers are vested in the Court of Appeal, and

(c)   could only be exercised in circumstances where the District Court had exceeded, or was threatening to exceed, its jurisdiction; and

(d)   the Supreme Court should generally defer exercising any such power in favour of consideration of the issue by the trial court.

(4)   A judge of the Supreme Court has no general power (or jurisdiction) to order officers responsible for the custody of prisoners to take steps thought necessary by the judge to ensure that an offender is not subject to an unfair trial, where the trial is not within the jurisdiction of the Supreme Court.

31. Although the plaintiff in the present case does not seek his orders in aid of a need to prepare a defence for a criminal trial, the width of the conclusions by Beazley P and Basten JA means that the plaintiff’s reliance on some form of inherent power, whether based on s 23 or otherwise, must fail. Given the purpose for which the plaintiff claims the need for the computer, the reasoning of the Court of Appeal could, at its highest, possibly support the view that the only court that could deal with the claim the plaintiff makes on this basis is the High Court. However, the nature of the High Court’s jurisdiction generally, and having particular regard to its jurisdiction in hearing appeals from a superior federal court, would make it extremely improbable that any order would or could be made in aid of what the plaintiff seeks.

32. The plaintiff’s claim based on Liristis must fail.

Review under s 69 Supreme Court Act

33. That leaves for consideration only whether the plaintiff establishes that this Court should, pursuant to s 69 of the Supreme Court Act, review the Commissioner’s decision of 7 December 2017. Although the plaintiff also seeks a review of the decision of 1 November 2016, it is clear from the letter from the Crown Solicitor of 25 July 2017 and the decision of 7 December 2017 (see [13] and [15]-[20] above) that the latter decision has overtaken the earlier decision of 1 November 2016.

34. The grounds on which the plaintiff seeks that the decision of the Commissioner be removed are these:

(a)   the Commissioner applied an inflexible policy;

(b)   the decision impedes access to the courts;

(c)   the decision was legally unreasonable; and

(d)   the plaintiff had a legitimate expectation that he would receive adequate access to a computer.

35. As to (a), the plaintiff submitted that the Commissioner based his decision on security concerns and noted a particular class of inmates, namely, sex offenders. The plaintiff submitted that the Commissioner blindly applied that inflexible policy to him because he was a convicted sex offender. Further, the plaintiff submitted that the Commissioner erred by disregarding other options available to him which would satisfy security policies, such as the provision of green computers for in-cell use, or the provision of green computers in the pod/unit that could be accessed outside the current designated times.

36. The plaintiff submitted that the Commissioner failed to give adequate weight to the need to use a computer in the cell in order to produce documentation for the High Court. He submitted that the inflexible policy of prohibiting a class of inmates from using a computer in a cell is not a proper exercise of his discretion.

37. As to (b), the plaintiff submitted that the decision in Leech v Governor of Parkhurst [1988] AC 533 at 539 is authority for the proposition that convicted inmates retain all civil rights to unimpeded access to the courts. The plaintiff further relied on Clark v Commissioner for Corrective Services [2016] NSWCA 186 at [5], Smith v Commissioner for Corrective Services [1978] 1 NSWLR 317 and Raymond v Honey [1983] 1 AC 1 at 10 as authority that relief will be granted where there is an unreasonable interference of the prisoner’s ability to obtain access to the courts.

38. As to paragraph (c), the plaintiff submitted that the Commissioner’s decision to deny the plaintiff the use of a laptop computer or a green computer in the cell unreasonably restricts his basic right to access the courts. The plaintiff submitted that the Commissioner had erred in giving inadequate weight to the plaintiff’s request and to other available options to ensure adequate computer access such as the purchase and use of a laptop computer in the cell in accordance with CSNSW security policies, the use of a pre-configured green computer in the cell, or the provision of additional green computers in the pod/unit for inmates’ access outside of current allocated hours.

39. The plaintiff submitted that since there is a common law presumption that inmates retain the right to access the courts, the Commissioner’s decision to restrict access to computers is so unreasonable that no reasonable person would deny such access when there were other options available.

40. As to (d), the plaintiff submitted that the common law presumption that inmates retain civil rights to unimpeded access to the courts gives rise to a legitimate expectation that the Commissioner would provide sufficient computer access within the NSW prison system. The plaintiff also appeared to submit that, because the Commissioner has in the past departed from CSNSW policies to provide inmates with laptop computers in their cell with read/write capabilities, the plaintiff had a legitimate expectation that he would similarly be provided with such a computer.

41. The plaintiff also made submissions about matters that the Commissioner ought to have considered when exercising his discretion. However, the matters raised amounted, in effect, to the seeking of a merits review of the Commissioner’s decision.

Legal principles

42. The courts are generally reluctant to interfere in the discipline, administration or management of prisoners: Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87.

43. In Fyfe v South Australia [2000] SASC 84 the Court said at [18]:

In thorough and very helpful submissions, Mr Mead who appeared for the applicant drew attention to the prohibitive terms in which s 36 is expressed. He emphasised the need for this Court to review the opinion and decision of Ms Bordoni and the reasons she has given for arriving at that opinion and decision particularly carefully (for ease of reference I will refer to this issue as a review of the decision by Ms Bordoni). There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court's jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the court surroundings.

44. In Clark v Commissioner for Corrective Services Emmett AJA (with whom Simpson JA agreed) said:

[84]   A distinction must be drawn between complaints as to the merits of a particular decision, on the one hand, and a complaint that the decision went beyond what was open under the relevant legislation, on the other. That distinction does not deny the applicability of judicial review but recognises the breadth of the discretion legitimately open to those responsible for making decisions such as those challenged by Mr Clark. Ultimately, the ambit of the legitimate discretion of prison authorities is a matter of statutory construction. However, such legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts.

[85]   Statutes governing discipline and control of prisoners in gaol should not be construed as if they were intended to confer fixed legal rights upon prisoners. That is not to say that judicial review is unavailable, rather that the relevant legislation is indicative of parliament’s intention that those responsible for the maintenance of prison administration and management should be given a broad discretion commensurate with the nature of the task and the balancing of potentially conflicting considerations. Thus, the Court has the power to grant public law remedies if it can be established that the relevant body conferred with power or functions exceeded authority, failed to perform some duty imposed by law or threatens to do so. However, those remedies are not a means of reviewing the merits of administrative action.

45. That view is consistent with a long line of authorities, some of which were referred to it in Clark, which supports the view that the exercise of ordinary managerial powers by prison authorities, as opposed to powers to punish prisoners, is reviewable only for bad faith or improper purpose: McEvoy v Lobban [1990] 2 QdR 235 at 240-241; McKane v Commissioner of Corrective Services of New South Wales [2015] NSWSC 737 at [55]. In addition, it has been recognised that some single judge decisions have considered that legal (or Wednesbury) unreasonableness might be a permissible ground of review: Modica at 89; Fyfe at [9] and [11]; McKane at [55]; Bernard-Ross v State of New South Wales [2018] NSWSC 182 at [48].

46. A number of the regulations under the Crimes (Administration of Sentences) Regulation 2014 (NSW) are relevant:

(a)   regs 7-8 require an inmate's property to be surrendered at the time of being received into a correctional centre;

(b)   reg 9(1) empowers the governor of the correctional centre to determine which items may be retained at the centre;

(c)   reg 9(2) empowers the governor to decide which items that are retained at the centre may be returned to the inmate for use by him or her while there and which are to be retained by the governor for return to the inmate on his or her release from custody, provided that property cannot be returned to an inmate for use if, in governor's opinion, to do so will constitute a security or safety risk;

(d)   pursuant to reg 45, an inmate must not have in his or her possession "prohibited goods", defined in reg 3(1) to include, among other things, anything that, in the opinion of a "nominated officer" (defined in reg 3(1) to include, among others, the governor), is likely to prejudice the good order and security of a correctional centre;

(e)   reg 47(2) provides that the quantity of property an inmate may keep in his or her cell is not to exceed the quantity the governor may determine;

(f)   reg 48(3) permits the governor to confiscate any electronic device of an inmate if of the opinion that it contains anything that, in the opinion of a "nominated officer" (defined in reg 3(1) to include, among others, the governor), is likely to prejudice the good order and security of the correctional centre;

(g) pursuant to reg 124, any property sent to an inmate is to be dealt with as if the property had been surrendered by the inmate upon being received into the centre;

(h) pursuant to reg 126, any property unlawfully brought into a correctional centre may be confiscated by the governor and becomes the property of the State and s 75 of the Act makes equivalent provision for any property unlawfully in the possession

of an inmate;

(i) pursuant to reg 130, directions for the purpose of maintaining good order and discipline may be given to inmates by the Commissioner, by the governor of a correctional centre or by a correctional officer;

(j) pursuant to reg 163(h), the keeping of approved personal property is a "withdrawal privilege" for the purposes of the correction centre discipline provisions in Div 6 of Pt 2 of the Act; and

(k) pursuant to reg 177(1), the governor may permit an inmate to purchase or rent any goods from Corrective Services NSW if they are of a type approved by the Commissioner and the governor considers that permitting this would not prejudice the good order and security of the correctional centre.

47. It should be noted that pursuant to s 233(2) of the Crimes (Administration of Sentences) Act 1999 (NSW) the governor of a correctional centre is subject to the direction and control of the Commissioner. Pursuant to the provisions referred to above, the governor and the Commissioner, have considerable latitude in respect of whether to permit an inmate to have possession of a laptop in his cell.

Application of the principles

(a)   The alleged application of an inflexible policy

48. The authorities suggest that this does not provide a proper basis for the challenging by way of administrative review of a decision of the Commissioner. It is necessary to show bad faith, improper purpose or legal unreasonableness.

49. However, even if it were a proper basis, it is permissible for a policy to be adopted provided that it does not exclude consideration of the individual merits of a particular case: Carroll v Sydney City Council (1989) 15 NSWLR 541 at 550; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 98. Furthermore, in the circumstances of a prison, as Garling J noted in Bernard-Ross at [47]:

… The granting of an exemption to one prisoner giving rise to a perception of preferential treatment may in fact be harmful to the security of the prison generally and may detrimentally affect the individual’s personal safety.

50. Moreover, as the plaintiff acknowledged in the submissions that formed part of his further amended summons of 14 November 2017, the Commissioner did not in fact apply an inflexible policy because he had permitted a Laptop Pilot Program in the course of which 12 inmates, including one who was also a convicted sex offender, purchased their own laptop computers. In such circumstances, a complaint that an inflexible policy was applied to the plaintiff could only amount to a complaint that required a merits review of a discretionary decision. That would require an error of the House v The King (1936) 5 CLR 499 variety, and none is shown.

51. Finally, it is apparent from the section of the decision of 7 September 2016 concerned with security concerns shows that the Commissioner did not simply apply an inflexible policy, but considered a number of aspects relating to security which were balanced against the trial laptop program. In any event, the decision also involved the Commissioner approving the access of the plaintiff to green computers for the purpose of producing documents for his legal proceedings.

52. This ground is not made out.

(b)   The decision impedes access to the Court

53. The plaintiff relies on what was said in Coco v The Queen (1994) 179 CLR 427 at 436 approving Lord Bridge of Harwich’s statement in Raymond v Honey [1983] 1 AC 1 at 14 that “a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”.

54. A claim that a decision of the Commissioner impedes access to the courts is not a ground for judicial review. If any relief is available, it is only in the circumstances discussed by Beazley P and Basten JA in Liristis. Alternatively, such a decision would have to be considered in the context of legal unreasonableness.

53. In any event, the decision of the Commissioner does not, of itself, deny the plaintiff access to the High Court to make a special leave application. The restriction which is itself imposed by enactment itself in the High Court Rules is that, ordinarily, documents that are to be filed are to be typed documents. Strictly speaking, if the Registrar declines to exercise his right to accept a handwritten document, that result has not been brought about by the Commissioner’s decision. In some circumstances, the Registrar’s refusal in that regard might be able to be challenged.

54. However, even if I accepted that, as a practical matter, it was necessary for documents in the High Court on a special leave application to be typed, the evidence does not disclose that the decision of the Commissioner is preventing that happening and in that way it cannot be said that the Commissioner is impeding access to the Courts. The evidence is that the plaintiff is entitled to have access to green computers which can produce such documents.

55. It is also clear from the plaintiff’s amended summary of argument dated 12 March 2018 (at paragraphs 15 to 21), that the plaintiff’s complaint is not that he does not have access to such computers but that, for reasons which are not entirely clear, the access that he does have is insufficient for him to produce the documents he says that he needs for the High Court application. It cannot be said in those circumstances that the decision of the Commissioner is interfering with a right, which I am prepared to accept exists, for the plaintiff to have access to the Courts.

56. It is difficult to consider this ground separately from the ground of legal unreasonableness, as the Commissioner has done in his submissions to the Court. It may be noted, in that regard, this is not a case where there are no countervailing factors to be taken into account by the Commissioner in coming to a determination that the plaintiff should not have a laptop in his cell. Those countervailing factors point against the unreasonableness of the determination and point against the view that the Commissioner’s determination is thereby impeding access to the Courts.

(c)   Legal unreasonableness

59. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 French CJ said (at [30]):

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

60. In discussing the requirement for reasonableness in the exercise of discretionary power , the joint judgment of Hayne, Kiefel and Bell JJ in Li said at [66]:

This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

61. In Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386, Tobias AJA (with whom Meagher and Barrett JJA agreed) said:

[89]   The primary judge dealt with the irrationality or manifest unreasonableness issue at [193] - [203] of his reasons, and as I have noted, he stated the relevant principles at [108] - [117]. Neither party cavilled with his Honour's statement of principle. Importantly, to establish this ground requires, as his Honour noted at [108], "something overwhelming". His Honour also noted that it has been suggested that the success of this ground of invalidity is "rare" especially given the necessity of ensuring that the Court does not stray into the merits of the relevant administrative decision.

[90]   The most recent High Court authority on the subject is Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and cited extensively by the primary judge at [109] - [111] of his reasons. Relevantly, after noting (at [75]) that Mason J in Peko-Wallsend had suggested that guidance in determining whether there has been manifest unreasonableness could be found in the close analogy between judicial review of administrative action on the one hand and appellate review of a judicial discretion on the other, Hayne, Kiefel and Bell JJ observed (at [76]) that where it was not possible for a court to comprehend how the decision was arrived at, unreasonableness was a conclusion which could be applied to that decision if it lacked "an evident and intelligible justification".

[91]   In the same case Gageler J, in paragraphs also cited by the primary judge, remarked at [108] that:

"Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy."

[92]   After referring to the analogy with appellate review of a judicial discretion, Gageler J concluded (at [113]):

"Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency."

62. In Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Livestock Corporation (1990) 96 ALR 153, Gummow J (when a judge of the Federal Court) discussed the concept of legal unreasonableness and said at 167:

In her recent work, to which I have referred, Dr Allars seeks to instil a measure of order into the authorities dealing with the Wednesbury test by identifying three paradigm cases of unreasonableness. All of them are consistent with a view of Lord Greene's "doctrine" as rooted in the law as to misuse of fiduciary powers; see Grubb, "Powers, Trusts And Classes of Objects", (1982) 46 Conv. 432 at 438. The three "paradigms" are outlined in paras 5.54-5.57 of Dr Allars' work. The first involves the capricious selection of one of a number of powers open to an administrator in a given situation to achieve a desired objective, the choice being capricious or inappropriate in that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not. The second "paradigm" involves discrimination without justification, a benefit or detriment being distributed unequally amongst the class of persons who are the objects of the power. It is the third "paradigm" which the applicant would seek to attract to the facts of the present case. In effect, the submission is that on the facts as I have detailed them, the exercise of power by withdrawing the applicant's approval was out of proportion in relation to the scope of the power. A decision which provides an example of such disproportion is the decision of Burchett J in Edelsten v Wilcox (1988) 83 ALR 99 at 114. An example of a case which fell on the other side of the line is the decision of the Full court in Wouters v Deputy Commissioner of Taxation (NSW) (1988) 84 ALR 577 at 584-585.

63. The plaintiff sought to characterise the first of the paradigms referred to as providing that unreasonableness will be established when several options are available, but the option chosen invaded basic rights when other options would not. The judgment in Fares does not in terms refer to options but powers, and the point being made is that the choice in any event was capricious or inappropriate. It seems to me that the Commissioner’s decision could only be established as capricious or inappropriate if there were no countervailing considerations in favour of the Commissioner’s decision. Here, the evidence clearly established that there were such countervailing considerations.

64. The information that the Commissioner had when he made his decision of September 2017 was that documents filed in the High Court were ordinarily required to be typed but that a registrar may accept a document for filing even if it does not substantially comply with the Rules and the Court, or that a justice may dispense with compliance with any of the requirements of the Rules. Further, the Commissioner had been informed that the Crown Solicitor had been told by a registrar of the High Court that, to the registrar’s knowledge, leave to proceed on the basis of handwritten documents had been allowed only once in the last 14 years. The registrar said the power to allow handwritten documents to be filed in the High Court was rarely used.

65. The Commissioner’s decision also made clear that inmates were allowed access to green computers which were capable of being used to create, edit and save documents. They also provided access to the Inmate Legal Info Portal. Documents created by inmates could be saved to the network. All inmates had access to computers within correctional centres, with access being allocated to inmates on a fair and reasonable basis.

66. It appears to be the case, as the Commissioner accepted, that the green computers at Junee did not have access to the Legal Info Portal at the time the plaintiff was at that centre. However, as the decision of 7 December 2017 made clear, requests were able to be sent to the MRRC Library for anything prisoners were unable to access on the portal. Moreover, whatever the position was at Junee, the Legal Info Portal is available through the green computers at the Hunter Correctional Centre. Whilst it may be accepted that, at the time of the Commissioner’s decision the plaintiff was at Junee, the fact that the plaintiff’s complaint about the decision is a continuing one means that, if I was otherwise minded to uphold the plaintiff’s complaint on this basis, as a matter of discretion I would decline to do so.

67. It is also apparent from the various summonses and other documents filed by the plaintiff in these proceedings that he has had sufficient access to legal sources, with the result that his submissions are replete with legal authority for the propositions he puts forward.

68. In all of those circumstances, the plaintiff fails to show that the discretionary decision of the Commissioner was unreasonable in the sense discussed in Li and subsequent decisions that have applied Li such as Arnold.

(d)   Legitimate expectation

69. As is made clear by Aronson & Ors, Judicial Review of Administrative Action and Government Liability (6th edition, Thomson Reuters, 2017) at 424-429, the doctrine of legitimate expectation, which now appears all but moribund in Australian law, particularly as a result of Plaintiff SI0/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31, was a doctrine concerned with issues of procedural fairness. In Plaintiff SI0/2011 the joint judgment of Gummow, Hayne, Crennan and Bell JJ said at [65]:

… It should, however, first be noted that for the reasons given in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam by McHugh and Gummow JJ, Hayne J and Callinan J, the phrase "legitimate expectation" when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded. The phrase, as Brennan J explained in South Australia v O'Shea, "tends to direct attention on the merits of the particular decision rather than on the character of the interests which any exercise of the power is apt to affect".

70. The plaintiff does not assert, and nor could he assert in the light of the invitation to make submissions before the September 2017 decision, that he was denied procedural fairness. His resort to legitimate expectation about the decision-making is as a matter of law, misconceived.

Conclusion

71. The grounds relied upon by the plaintiff are not made out. Significantly, the plaintiff does not demonstrate bad faith, improper purpose or legal unreasonableness in respect of the decision.

72. Accordingly, I make the following order:

1. Proceedings dismissed.

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Decision last updated: 13 July 2018