McPadden v Secretary to the Department of Justice & Community Safety
[2023] VSC 669
•20 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04527
S ECI 2021 00811
S ECI 2021 00793
S ECI 2021 03330
BETWEEN:
| DEREK McPADDEN SHAYNE THOMAS BARRY WELLS JOHN CHARLES QUAIL | Plaintiffs |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY | Defendant |
---
JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 7, 10 October 2022 and 26 October 2023 |
DATE OF JUDGMENT: | 20 November 2023 |
CASE MAY BE CITED AS: | McPadden & Ors v Secretary to the Department of Justice & Community Safety |
MEDIUM NEUTRAL CITATION: | [2023] VSC 669 (Revision no 1, 21 November 2023) |
---
ADMINISTRATIVE LAW – Judicial review – Four proceedings – Extensions of time – Challenges to decisions of Corrections authorities – Discretionary statutory power to reduce prisoners’ sentences by the grant of emergency management days (‘EMDs’) – Prison conditions affected adversely by COVID-19 emergency measures – EMDs granted unilaterally by Department from time to time during COVID-19 emergency – In addition, applications for EMDs, or additional EMDs, made by certain prisoners by letter or through non-statutory Departmental procedures – Decisions made not to grant relevant applications for EMDs – Decision letters alleged to be formulaic but no challenge to any general Departmental policies or procedures – Procedural fairness – Whether, or to what extent, or in what way, decision-makers obliged to ‘evaluate’ each application – Whether decision-makers failed to duly evaluate particular applications – Whether particular decisions legally unreasonable – Evidence – Onus of proof – No statutory or other obligation to provide reasons – Identifying the decision-makers’ reasoning – No basis for judicial review established – Each proceeding dismissed – Corrections Act 1986, s 58E; Supreme Court (General Civil Procedure) Rules 2015, Order 56.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr H Crosthwaite (on referral through Victorian Bar/Supreme Court pro bono scheme) | Not applicable |
| and | ||
| For the Plaintiffs Thomas and Quail | Mr M Albert (on referral through Victorian Bar/Supreme Court pro bono scheme) | Not applicable |
| For the Defendant | Ms S Fitzgerald and Mr C Fitzgerald | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction and overview
Under s 58E of the Corrections Act 1986, the Secretary to the Department of Justice and Community Safety has a discretionary power to reduce the length of a sentence of imprisonment being served by a person, or the length of a non-parole period, on account of good behaviour while the person was or is suffering disruption or deprivation during an emergency in a prison. Recent judgments of this Court have established that the existence of an ‘emergency’ in a prison, a causal link to the suffering of ‘disruption’ or ‘deprivation’ by a prisoner, and contemporaneous good behaviour by the prisoner – all as perceived by the Secretary – are pre-conditions to the arising of the discretionary power to reduce the prisoner’s sentence or non-parole period. The extent to which a sentence or non-parole period may be reduced is limited by regulations made under the Corrections Act 1986. The matter is often referred to as the grant of ‘emergency management days’ (‘EMDs’), reflecting the language of the headings to the relevant statutory provisions. The Secretary or her delegates may grant EMDs on their own initiative. That occurred from time to time between 2020 and 2022 in consequence of adverse changes in prison conditions related to the COVID-19 pandemic, under what the Department called the ‘automatic’ process for considering EMDs. EMDs can also be granted in response to an application by a prisoner, although there is no legislation providing expressly for prisoners to make such applications.
The respective plaintiffs in the four proceedings in this Court presently before me, namely (in chronological order of commencement of the proceedings) Mr McPadden, Mr Wells, Mr Thomas and Mr Quail, are, or have been, prisoners in Victorian prisons. At various times in 2020 or 2021 each of them made an application or applications to the Corrections authorities for the grant of EMDs, or for the grant of additional EMDs. The applications were made in writing, either by letter or by the completion of non-statutory application forms created by the Corrections authorities. In one case, the application was part of a bulk application made on behalf of many prisoners housed at a particular prison. Ultimately, negative decisions were made on the relevant applications.
The present proceedings relate to the plaintiffs’ respective personal applications for EMDs. The proceedings were commenced separately in 2020 and 2021. Initially, each plaintiff was self-represented. In some cases, the proceedings were brought before the relevant EMD applications had been determined by the Corrections authorities. Each proceeding was brought by way of originating motion for judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), but some were wrongly constituted as to parties and none was properly pleaded. In June 2022, each plaintiff came to be represented by pro bono counsel. That led to substantial reformulation of their respective cases, by way of the filing of further amended originating motions. Mr McPadden’s further amended originating motion involved, at first, a challenge to four negative decisions, but that has since been reduced to three. Mr Wells’ further amended originating motion at first involved a challenge to two negative decisions, but that was later reduced to one. The further amended originating motions of the other two plaintiffs involved and continue to involve a challenge to only one decision each. So, in total, six decisions are now sought to be challenged. Each such decision was made by a delegate of the Secretary rather than by the Secretary personally, but the Secretary is named as the defendant in each proceeding without objection.
The same delegate, being Melissa Westin ACM, the Deputy Commissioner, Custodial Operations, of the Department, made at least one of the three challenged decisions relating to Mr McPadden and made each of the challenged decisions relating to the others. The four proceedings in this Court include some other shared features too. Accordingly, it was agreed between the parties, and it was ordered on 17 June 2022, that the four proceedings be tried at the same time.
In relation to Mr McPadden’s case in particular, the defendant contends that extensions of time are needed. Mr McPadden disputes that. The question does not need to be decided, because I ruled at the hearing that, if and to the extent that Mr McPadden needed extensions of time, extensions would be granted.
For three of the plaintiffs (Mr McPadden, Mr Wells and Mr Quail), either their sole or their main case is that the delegates were legally required to ‘evaluate’ their respective EMD applications and did not duly do so. Those three plaintiffs (and also, indirectly, Mr Thomas) contend for the existence of an extremely stringent, implied ‘duty to evaluate’ resting on persons making decisions under s 58E of the Corrections Act 1986. The claimed duty would require the Secretary and her delegates – not only when determining whether the pre-conditions for the grant of EMDs under s 58E of the Corrections Act 1986 have been met, but also in the course of considering the exercise of the discretionary power conferred by s 58E to grant or not grant EMDs (where those pre-conditions have been met) – to address, and reflectively to assess, every claim of alleged deprivation or disruption made by the prisoner; and to do so notwithstanding any lawful general Governmental policy about the granting of EMDs that may be in place. The plaintiffs contend that, in the present cases, departures from the delegates’ alleged ‘duty to evaluate’ can be discerned from comparisons between the terms of the EMD applications and the terms of the respective decision letters sent by the delegates to the plaintiffs, and by analysis of certain common language contained in the respective decision letters themselves. In particular, the plaintiffs contend that the decision letters are ‘formulaic’ or ‘template’ in nature, revealing inadequate consideration and ‘evaluation’ of the EMD applications. Mr Quail makes a related claim of alleged legal unreasonableness. Mr Thomas pleads only legal unreasonableness, particularised as alleged illogicality or internal inconsistency in the reasoning of the relevant delegate. However, along the way, he also relies on the alleged use of formulaic or template language by the delegate. On those grounds, the plaintiffs allege that jurisdictional error vitiated each of the decisions in question. They seek orders to quash the decisions and to require that the decisions be remade according to law.
The plaintiffs accept that they carry the ultimate burden of proving, on the evidence, that the challenged decisions were vitiated by jurisdictional error. As mentioned above, the decisions were conveyed by letter. Some of the decision letters were quite brief. However, in the absence of any request under s 8 of the Administrative Law Act 1978 for a statement of reasons, the decision-makers were under no statutory obligation to provide reasons to the prisoners, much less written reasons. In those circumstances, the parties are in dispute about the extent, if any, to which the responses of the decision-makers to the detail of the prisoners’ EMD applications, or the reasoning of the decision-makers generally, is discernible from the decision letters themselves or otherwise by inference from the evidence.
The Secretary contends in substance that, on the proper interpretation of the relevant legislation and as a matter of administrative law, the plaintiffs have overstated the alleged duties of the delegates with respect to consideration of the EMD applications. She says that s 58E confers, in the end, a broad discretionary power in aid of prison management; that the decision-makers were free to apply broad Departmental policy; that the terms (and any brevity) of the decision letters can be explained and justified accordingly; and that, in any event, the plaintiffs’ complaints of failure to ‘evaluate’ must fail for want of evidentiary support. She says that the relevant plaintiffs’ claims of legal unreasonableness are unfounded.
In my view, as I will explain, the Secretary’s contentions should be upheld.
All four proceedings will be dismissed.
The legislative provisions
Sub-section 58E(1) provides:
58E Emergency management days
(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; or
(b) in other circumstances of an unforeseen and special nature.
As mentioned in [1] above, recent judgments of this Court establish that the power conferred on the Secretary by s 58E(1) is a discretionary power, which is enlivened where the Secretary is satisfied as to certain matters.[1] The sub-section provides that the power is to be exercised in accordance with the regulations. The relevant regulations are regs 100 and 109 of the Corrections Regulations 2019. Regulation 100 provides:
[1]See Dudley v Secretary to the Department of Justice & Community Safety [2021] VSC 567; (2021) 66 VR 403 (‘Dudley’); Donohue v Westin [2022] VSC 37 (‘Donohue’). See also Donohue v Westin [2022] VSC 794 [57]–[63].
100 Emergency management days
For the purposes of section 58E(1) of the Act, the Secretary may reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period by—
(a)in the case of an industrial dispute or an emergency under section 58E(1)(a) of the Act, up to 4 days for each day or part of a day on which the industrial dispute or emergency exists in the prison or police gaol in which the sentence is being served; or
(b)in the case of other circumstances of an unforeseen and special nature under section 58E(1)(b) of the Act, up to 14 days.
Under regulation 109 of the Corrections Regulations 2019, the number of EMDs granted to a prisoner must be deducted from the prisoner’s non-parole period if a non-parole period has been set for the prisoner. Arguably, EMDs may also be deducted from such a prisoner’s head sentence at the same time.[2]
[2]Dudley 435 [82]; Donohue [55]. Regulation 109 and the other relevant provisions are set out in full in Dudley 415–416 [21]–[24].
The litigation history and the involvement of pro bono counsel
During 2020 and 2021, approximately 35 separate proceedings were filed in this Court by prisoners seeking judicial review of decisions or omissions to make decisions on EMD applications relating to the COVID-19 pandemic. Most of the prisoners were self-represented, and most of the originating motions were in similar form, with supporting affidavits also in similar form. Generally, the prisoners’ claims assumed that mere satisfaction of the basic conditions stated in s 58E entitled prisoners to the grant of EMDs. That assumption was disputed by the Secretary. With the assistance of pro bono counsel from the Victorian Bar on referral under the Victorian Bar/Supreme Court pro bono scheme, the Court isolated two proceedings for the hearing and determination of that issue and certain other legal issues common to many of the EMD proceedings. The first of those matters was Dudley, in which senior and junior counsel appeared pro bono for Mr Dudley. I decided Dudley on 15 September 2021. The second matter was Donohue, in which Mr Albert of counsel appeared pro bono for Mr Donohue. The matter of Donohue was decided by Niall JA on 9 February 2022. As mentioned above, those decisions established (among other things) that s 58E confers a discretionary power on the Secretary in relation to EMDs, ie that s 58E does not give prisoners any entitlement to EMDs.
Following delivery of the judgments in Dudley and Donohue, most of the then extant EMD proceedings from 2020 and 2021 were withdrawn or dismissed by consent. The remaining proceedings, including the present four proceedings, were made the subject of summary dismissal applications by the Secretary that were listed before Associate Justice Irving in May 2022. By then, each relevant EMD application had been decided by the Corrections authorities. There was then a referral of the remaining EMD proceedings back to the Victorian Bar/Supreme Court pro bono scheme. That led to the engagement, in or about early June 2022, of Mr Crosthwaite of counsel for the plaintiffs Mr McPadden and Mr Wells, and the engagement (again) of Mr Albert of counsel, this time for the plaintiffs Mr Thomas and Mr Quail. The other remaining EMD proceedings from 2020 and 2021 were resolved.
On 17 June 2022, the parties to the present four proceedings consented to four sets of orders that were then made by Associate Justice Irving, being orders under which the Secretary’s summary dismissal applications were themselves dismissed, each plaintiff was given leave to deliver a further amended originating motion and, subject to any order of the trial judge, the four matters were set down to be heard together commencing on 7 October 2022. Directions for affidavits, submissions and court books were also given in each proceeding.
On 23 or 24 June 2022, each plaintiff filed a further amended originating motion for judicial review that had been drawn or settled by pro bono counsel. In each case, the document clearly identified the decision or decisions then sought to be reviewed; and, for the first time, grounds of review in proper form were pleaded.
The involvement of pro bono counsel on the several occasions referred to above was in the finest traditions of the Victorian Bar. It has led to a considerable refining and clarification of the various EMD proceedings, with great benefit for the administration of justice. The Court expresses its deep gratitude to Mr Crosthwaite and Mr Albert accordingly. At the same time, I note that counsel for the plaintiffs cited a vast range of cases, being mainly decisions of the Federal Court relating to the migration legislation of the Commonwealth, many of which cases involved complex issues of statutory interpretation and administrative law. As well as the numerous cases referred to in the plaintiffs’ respective written outlines of submissions, several additional cases were cited by counsel for the first time during oral submissions, particularly in response to questions asked by me. It turned out that, on proper analysis, many of the cases cited did not assist the plaintiffs, as will be seen.
Extensions of time
In the Secretary’s pre-trial written submissions in the proceeding brought by Mr McPadden, it was contended, as mentioned above, that Mr McPadden was out of time in relation to each of the three decisions he was (still) seeking to challenge.[3] The Secretary relied on the provisions of Rule 56.02 of the Rules. The Secretary also foreshadowed that she would oppose any application that Mr McPadden might make for an extension of time under the Rules.[4]
[3]Defendant’s outline of submissions dated 26 September 2022 in proceeding number S ECI 2020 04527 (‘Defendant’s outline in McPadden’), [11]–[26]: Court Book (‘CB’) 559–563.
[4]Defendant’s outline in McPadden [12].
Rule 56.02(1) of the Rules provides that a proceeding under Order 56 shall be commenced within 60 days after the date when grounds for the relief or remedy claimed first arose. Rule 56.02(2) provides, among other things, that where the relief or remedy claimed is in respect of any ‘determination’, the date when the grounds for the grant of relief or remedy first arose shall be taken to be the date of the determination. Rule 56.02(3) provides that the Court shall not extend the time fixed by Rule 56.01(1) except in special circumstances.
At the oral hearing before me, counsel for Mr McPadden submitted that his client did not need any extension of the time or times fixed by Rule 56.01(1). On the second day of the hearing, in an endeavour to further support that submission, counsel handed up a detailed (5-page) chronology of Mr McPadden’s applications for EMDs and of the progress of Mr McPadden’s proceeding in this Court for judicial review. The chronology, which was not challenged, showed, among other things, that not all of the decisions made on Mr McPadden’s applications for EMDs had been communicated to him in a timely fashion; that Mr McPadden had commenced the proceeding by filing an originating motion for judicial review on 5 November 2020, at which time he was complaining about having received no response to applications he had previously made for EMDs; and that Mr McPadden’s originating motion had been amended by leave of the Court on two occasions.[5]
[5]I will direct that a copy of the chronology of 10 October 2022 be kept on the file.
In the alternative, counsel for Mr McPadden applied on his behalf for any necessary extension or extensions of time. He supported this application by filing a fresh affidavit of Mr McPadden affirmed on 6 October 2022. That affidavit detailed the communication difficulties that had faced Mr McPadden as a self-represented prisoner/litigant, especially during the height of the COVID-19 pandemic. It also referred to the belief held by Mr McPadden that it was desirable for him to await the outcome of the Donohue case before taking certain steps in his own proceeding.
After this new material was filed and served, the Secretary’s position changed. Her counsel indicated that, so far as time limitations were concerned, the Secretary’s only real concern, now, was to dispute any generalised contention to the effect that, where:
(a) a person commences an application for judicial review of a particular determination or of a particular alleged failure to make a determination; and
(b) a new actual determination on a related matter is subsequently made; and
(c) more than 60 days passes between the date of the new actual determination and the date of any application for a relevant amendment of the originating motion,
the person can, in that same proceeding, without getting an extension of time, obtain judicial review of the new actual determination. Subject to that point, counsel for the Secretary indicated that, notwithstanding the provisions of Rule 56.02(3), the Secretary did not oppose Mr McPadden’s (alternative) application for an extension or extensions of time.
It appeared to me that this was a clear case of ‘special circumstances’ for the purposes of Rule 56.02(3). I so ruled at the hearing.[6] Accordingly, I indicated that I would extend time so far as necessary for the bringing of Mr McPadden’s challenges to the three decisions of which he was continuing to seek review.[7] As a result, there was and is no necessity for me to express any opinion as to the legal consequences of a scenario of the kind about which the Secretary was concerned. Accordingly, I did not, and do not, express any such opinion.
[6]Transcript of hearing before Cavanough J on 7 and 10 October 2022 (‘T’), 167.
[7]T167–168.
The Secretary has not suggested that either Mr Wells, Mr Thomas or Mr Quail is out of time to bring their respective proceedings. For that reason, and because their proceedings (as well as Mr McPadden’s proceeding) must be dismissed in any event, I will not stop to consider whether in fact Mr Wells, Mr Thomas or Mr Quail would need an extension of time.
The cross-admissibility issue and the related matters of Departmental policy and the scope of the plaintiffs’ grounds of review
There was one other preliminary issue in these proceedings. Its determination involved clarifying certain related matters.
During the period leading up to the joint trial, there was a debate between the plaintiffs, on the one hand, and the Secretary, on the other, as to whether the evidence in each case should be admitted as evidence in each other case. The evidence was all in the form of affidavits and exhibits, and there was no intention to cross-examine any of the deponents.
Although the four proceedings were to be tried at the same time, the plaintiffs had not, prior to the trial, sought or obtained any interlocutory order for cross-admissibility of the evidence. However, in the outlines of submission filed on behalf of the plaintiffs respectively, each plaintiff said that he ‘agrees to evidence in this proceeding being relied upon in the other proceedings being heard with this application’. From this and other indications, it was plain that Mr Crosthwaite and Mr Albert were (quite properly) working in close collaboration with each other in relation to the plaintiffs’ respective submissions. So far as the cross-admissibility issue was concerned, the evidence on which counsel mainly focussed comprised the prisoners’ written applications for EMDs and the respective decision letters sent by or on behalf of the delegates.
In each outline of submissions filed by the Secretary, it was noted in response that no cross-admissibility order had been sought or obtained, and that no attempt had been made to gain the Secretary’s consent until that time. It was also said that the Secretary would oppose any application for a cross-admissibility order. Two of the Secretary’s stated grounds of objection were common to each proceeding: first, that none of the evidence filed in the other proceedings was relevant to the ground or grounds raised by the plaintiff in the further amended originating motion in the instant proceeding; and, second, that the evidence that had been adduced by the Secretary in the instant proceeding had been adduced for the purposes of that proceeding alone.
In addition, in her outline of submissions in McPadden, the Secretary included another, more specific, point.[8] She submitted that, by seeking to rely on the applications and decision letters filed in the other proceedings, Mr McPadden was, in effect, trying to advance an argument that, she said, lay outside the grounds of review pleaded in his further amended originating motion. In particular, she submitted that Mr McPadden was attempting to include a challenge to the effect that the decisions in his case were based on the application of a ‘prohibited policy’ or ‘blanket rule’. The supposed prohibited policy or blanket rule, she submitted, had been identified by Mr McPadden as a policy or rule to the effect that the Secretary and her delegates would not grant EMDs unless the prisoner had been accommodated in a restrictive regime or had had their out of cell time significantly restricted because of COVID-19. She identified several express submissions to this effect that were contained in the outline of submissions that had been filed on behalf of Mr McPadden.[9] The Secretary foreshadowed that she would object to any application to amend the further amended originating motion yet again so as to raise this contention, which she described as being wholly distinct from the grounds contained in Mr McPadden’s further amended originating motion.
[8]Defendant’s outline in McPadden [9], [31]–[32].
[9]Outline of submissions for Mr McPadden dated 14 September 2022 [43(d)], [44], [45]–[47] and [48]–[49].
There was certainly a basis in the evidence before the Court, read as a whole, for discerning a Departmental policy or general rule of the kind just described, although it would have been a different question whether any such policy was a prohibited policy or whether any such rule was a blanket rule. In particular, when the delegates’ decision letters were read together, their language did seem to reflect a Departmental policy or general rule of the kind described above, being a policy or general rule that might have been applicable to each of the EMD applications in question in these four proceedings. The evidence that had been filed on behalf of Mr Wells included a fact sheet that had been apparently issued by the Victorian Department of Justice and Community Safety on or about 20 April 2020 in which similar language was used; and, at the oral hearing, the parties agreed that the Departmental fact sheet had indeed been issued to all Victorian prisons on or about 20 April 2020.[10] And the evidence that had been filed in McPadden included Mr McPadden’s own application to the Corrections authorities of 17 August 2020 for the grant of EMDs (being one of several EMD applications made by Mr McPadden included in the evidence), in which Mr McPadden had asserted:[11]
[10]T218, referring to the document at CB 224–225. As will be seen, the Secretary ultimately relied on the existence of the policy or general rule to justify or explain the language used in the decision letters and thereby to support her answers to the complaints made by the plaintiffs in these cases: see esp T217-219, 229–231.
[11]Letter dated 17 August 2020 from Mr McPadden to the Corrections authorities, page 3: CB 26, Supplementary Court Book (‘SCB’) 17.
Corrections Victoria have advised in various Fact Sheets and communications with prisoners that for purposes of automatic assessment and application of EMDs a prisoner must have:
·a restrictive regime; or
·out of cell hours restricted due to COVID-19.
Corrections Victoria will not accept:
·suspension of personal visits; or
·changes to the structured day.
Likewise, on pages 6 and 11 of the affidavit of Mr Thomas sworn on 2 March 2021 and filed in Thomas, there was detailed reference to the same or similar policy statements issued by Corrections Victoria to all prisons; and on page 7 of an exhibit (Exhibit A) to that affidavit there is an express reference to the Departmental fact sheet of 20 April 2020. More detail about the contents of the fact sheet is set out in [204]–[209] below of this judgment.
Nevertheless, any attempt by the plaintiffs to raise ‘fixed policy’/’prohibited policy’ as a ground of review was expressly abandoned at the oral hearing. At an early stage, both Mr Crosthwaite and Mr Albert specifically disclaimed any reliance by their respective clients on any argument to the effect that there was a pre-existing or fixed rule of policy from which the delegates were not prepared to deviate.[12] Indeed, during the course of an extensive discussion about the matter of Departmental policy,[13] Mr Albert said, among other things: ‘We don’t challenge anything to do with policy’;[14] and ‘There’s no ground dealing with policy’;[15] and ‘We accept there might be a policy. We accept that it may have been applied to our clients. We can even go so far as to say it was administered completely consistently with the policy’.[16] Similarly, Mr Crosthwaite, towards the beginning of his own main oral submissions, acknowledged[17] that the plaintiffs were not suggesting that there had been an inflexible application of policy, and further acknowledged,[18] likewise, that the plaintiffs were not raising any ground similar to either of the grounds that had succeeded in an earlier EMD case heard by T Forrest J, namely Kheir v Secretary to the Department of Justice and Regulation.[19] Mr Crosthwaite repeated these acknowledgements later in his oral submissions.[20] Thus, counsel for the plaintiffs withdrew any contention that there was unlawfulness in the existence or application of any policy or general rule that may have existed within the Department of Justice and Community Safety to the effect that the Secretary or the delegates of the Secretary would not grant EMDs unless the prisoner had been accommodated in a restrictive regime or had had their out of cell time significantly restricted because of COVID;[21] and counsel made it clear[22] that they did not seek to go beyond the grounds pleaded in their clients’ respective amended originating motions.
[12]T9–10.
[13]T42–69.
[14]T42.
[15]T43.
[16]T65.
[17]T172.
[18]T173.
[19][2018] VSC 222. The policy-related grounds that had succeeded in Kheir had been labelled as error of law ([2018] VSC 222 at [33]) and ostensible bias ([2018] VSC 222 at [38]–[39]). See also and compare British Oxygen Co Ltd v Minister of Technology [1971] AC 610, 624–625, 630–631; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 194 [54], 198 [68]–[69]; Minister for Home Affairs v G & Anor (2019) 266 FCR 569, 586–587 [57]–[62].
[20]T187.
[21]See especially T53–65.
[22]Ibid.
On the other hand, it had been pleaded in each of McPadden, Wells and Quail that the relevant delegate had failed to comply with an alleged obligation to ‘evaluate’ the material provided to the delegate relating to the claimed specific impacts of the COVID-19 emergency measures on the prisoner concerned. Correspondingly, in Thomas, although the sole ground pleaded was legal unreasonableness, it had been asserted, in the pre-trial outline of submissions for Mr Thomas,[23] that the Court ‘could safely draw the inference – including by reliance on what is clearly regurgitated language from other EMD refusal letters – that the decision in respect of Mr Thomas relied on “mechanical formulaic expression and pre-digested shorthand expressions [which] hide a lack of the necessary reflection upon the whole consideration of the human consequences involved”[24] and [upon] the submissions made by Mr Thomas.’
[23]Mr Thomas’ outline of submissions dated 14 September 2022 [9].
[24]Citing Minister for Home Affairs v Omar (2019) 272 FCR 589, 607 at [37] quoting, in turn, Hands v Minister for Border Protection (2018) 267 FCR 628 at [3]. See further below.
For a time, during the early stages of the hearing, it remained the position of the Secretary that, in the absence of a ‘fixed policy’ ground, the evidentiary material in each case was not relevant to the other cases and should not be cross-admitted.[25] On the other hand, counsel for the Secretary said little or nothing at the hearing to advance that position. Nor did counsel for the Secretary elaborate on the point that had been made in the Secretary’s written submissions – based, apparently, on hinted unfairness to the Secretary – to the effect that the evidence she had filed in each proceeding was filed for the purpose of that proceeding only.
[25]T10.
On the other side, speaking in effect on behalf of all four plaintiffs, Mr Albert submitted – consistently with the several plaintiffs’ pleaded grounds of review, and echoing the abovementioned pre-trial written submissions filed in Thomas – that, in the context of the various applications for EMDs that had been made by the prisoners to the Corrections authorities, the decision letters, when read together, exhibited ‘mechanical formulaic expression and pre-digested shorthand expressions’.[26] Similarly, in Mr Crosthwaite’s written submissions on behalf of Mr McPadden,[27] it had been put that the decision letters in question that had been sent to Mr McPadden had mirrored each other, despite having been written by disparate authors at disparate times; and it had been submitted that this supported an inference that the letters were derived from a template or formulaic process. Mr Crosthwaite maintained these submissions at the oral hearing,[28] and extended them so as to rely also on the decision letters sent to Mr Thomas and Mr Quail.[29]
[26]T10–11.
[27]Outline of submissions for Mr McPadden dated 14 September 2022, [48].
[28]T202.
[29]T203.
I was satisfied by the submissions made on behalf of the plaintiffs that the various applications and decision letters were cross-admissible. They were ‘relevant’ within the meaning s 55 of the Evidence Act 2008 (Vic) in that they could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in each proceeding, namely whether or to what extent or in what way the delegates had considered the material provided to them in the prisoners’ applications. What the law might actually have required by way of any duty to ‘evaluate’ the material is another matter, to which I will return. The Secretary did not raise any suggestion that the documents in question were inadmissible under the ‘tendency rule’ or the ‘coincidence rule’ (Evidence Act 2008 (Vic) ss 97 and 98).
The other documents in evidence were also capable of bearing, directly or indirectly, on the question whether, or to what extent, or in what way, the delegates had considered the material in question. Thus, for example, the abovementioned Departmental fact sheet that had been issued to all Victorian prisons in April 2020 was relevant to that question; and in due course it was sought to be relied upon by Mr Crosthwaite for the proposition that the delegates had failed to ‘evaluate’ the prisoners’ individual EMD applications.[30] It was not suggested by the Secretary that there was any basis for treating that document or any of the other documents in evidence differently from the applications and decision letters.
[30]T196-198.
Further, as already mentioned, the Secretary did not elaborate on the vague hint contained in her pre-trial written submissions to the effect that, even if the plaintiffs were to abandon any reliance on the foreshadowed ‘fixed policy’ argument (as the plaintiffs went on to do at the trial), cross-admissibility would still somehow be unfair to her. Indeed, it seemed to me that there were aspects of the evidence regarded as a whole that actually assisted the Secretary’s position in each of these four cases. Ultimately, the Secretary herself made submissions based on a similar view, including submissions to the effect that the Departmental fact sheet dated 20 April 2020, read with the decision letters themselves, indicated that the delegates had duly applied lawful government policy in their decision-making.[31] In any event, it was appropriate to treat all of the evidence filed as cross-admissible.
[31]See [31] (fn 10) and [32] above of this judgment.
I so ruled at the hearing.[32] Counsel for the Secretary disclaimed any need to put on more evidence in consequence of my ruling.[33] However, in fairness to the Secretary, the plaintiffs cannot be permitted to resile, directly or indirectly, from their concession about the existence and application of Departmental policy in these cases. At the oral hearing, the plaintiffs went very close to the line in that regard, and may have crossed it. It was common ground that, where discretionary statutory power is reposed in a public authority and the public authority is proposing to apply some relevant Governmental policy, the public authority must still be prepared to hear any individual who claims to have something new or exceptional to say against the existence of the policy, or against the application of it in the particular case. So much may be accepted.[34] However, Mr Albert submitted that, having regard to the fact that lawful policies lawfully applied cannot be completely rigid, and to the fact that Corrections Victoria itself had created forms for the making of applications for EMDs, each and every EMD application made by any prisoner – or at least, each and every relevant EMD application that was made by the present plaintiffs – should be regarded as constituting a claim that the applicant had something new or exceptional to say against the application of the policy in their particular case; and that, therefore, in the present cases, the delegates had been required to ‘evaluate’ every claim of disruption or deprivation made by each of the plaintiffs, notwithstanding any policy.[35] In my view, that submission went too far. I do not accept it. It would totally undermine the plaintiffs’ (proper) concession about the existence and application of the relevant Departmental policy in these cases. As will appear in due course, not one of the plaintiffs actually put to the delegate, in their EMD applications, any proper argument to the effect that their own case was relevantly new or exceptional and thus warranted a departure from the abovementioned policy. It is true, as Mr Albert submitted,[36] that the plaintiffs were in a disadvantaged position as prisoners without skilled legal assistance;[37] but those circumstances cannot transform the tenor of their EMD applications. And I note that at least Mr Wells and Mr Thomas were aware of the abovementioned Departmental fact sheet of 20 April 2020, with its references to the relevant Departmental policy, and that Mr McPadden was at least aware of policy statements being issued by Corrections Victoria that were in the same or very similar form.[38] In my view, the plaintiffs cannot escape the effect of their concession about policy in this way.
[32]T 11–15, 237.
[33]Ibid, 11, 237.
[34]See the cases referred to in [32] (fn 19) above of this judgment.
[35]T65, 68–69, 72, 75–76, 107–109, 111.
[36]T62–63, 93.
[37]See and compare Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578, 586–687 [34]–[37].
[38]See [31] above of this judgment.
The bases of the applications for judicial review, in summary
In their respective amended originating motions, each plaintiff claims a declaration that the decision or decisions in question was or were ‘unlawful and/or infected by jurisdictional error’; and each plaintiff claims consequential relief by way of orders in the nature of certiorari to quash the relevant decision or decisions and mandamus to require that the relevant decision or decisions be re-made according to law. On the other hand, there is no claim that any decision is affected by error of law on the face of the record. So, in effect, each claim is confined to a claim of jurisdictional error.[39] As to the alleged grounds of judicial review, it is pleaded by three of the plaintiffs, namely Mr McPadden, Mr Wells and Mr Quail, as indicated above, that there was a failure or failures by the relevant delegates to duly ‘evaluate’ his application or applications for EMDs. They particularise these allegations by reference to certain claims of COVID-19-related restrictions on prison services or facilities, drawn from larger numbers of such claims that had been made in their respective EMD applications. In McPadden and Wells, no other ground is pleaded. Mr Quail adds a ground of legal unreasonableness but it is based on related matters. In Thomas the only ground formally pleaded is legal unreasonableness, but, as mentioned above, the alleged use of ‘formulaic’ or ‘template’ language was referred to in the arguments advanced on behalf of Mr Thomas in relation to the pleaded ground. No plaintiff pleads or otherwise advances any other ground of review.
The nature of the power conferred by s 58E, as expounded in Donohue
[39]As to the distinction between error of law on the face of the record and jurisdictional error, see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [26]. As to jurisdictional error generally, see Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 [38]–[41], [46]–[50] (Payne JA, with whom Ward ACJ and Basten AJA agreed).
Before coming to the plaintiffs’ cases in more detail, it is useful to note that, in Donohue, Niall JA analysed carefully and comprehensively the nature of the power conferred by s 58E. Although strictly speaking the analysis was directed only to Mr Donohue’s third ground of judicial review in that matter – which was mainly to the effect that the delegate had acted on an incorrect application of the law by comparing the level of disruption and deprivation caused by the COVID-19 emergency in the prison where Mr Donohue was housed with other disruption and deprivation caused by the same emergency[40] – the analysis is of general application. Niall JA said (footnotes included but renumbered):[41]
[40]Donohue [15], [51]–[52].
[41]Donohue [54]–[71].
54.This argument calls for an examination of the nature of the power in s 58E of the Act. In short compass, the following propositions apply to s 58E:
(a)Where a prisoner applies for EMDs, the Secretary is under a duty to at least consider the exercise of the power;[42]
[42]Dudley [2021] VSC 567, [49]. Although Cavanough J did not express a final view on this question, his reasoning shows why, as a matter of statutory construction and principle, it is correct.
(b)The power to grant EMDs is enlivened once the Secretary is satisfied that the statutory preconditions are met;[43]
[43]Ibid [34].
(c)Satisfaction of the criteria enlivens the discretion but does not give rise to an entitlement in favour of the prisoner or a duty on the Secretary to grant one or more EMDs to the prisoner;[44] and
[44]Ibid [38]–[45].
(d)Both the question of whether the satisfaction of the statutory preconditions are met, and whether EMDs should, as a matter of discretion, be granted, are to be determined by the Secretary having regard to the purpose of the provision, being prison management, and subject to being within the outer limits of reasonableness or legal error, are matters for prison authorities.
55.The power in s 58E of the Act to grant an EMD arises when three conditions are satisfied: the prisoner is of good behaviour; there is a period of disruption or deprivation; and an industrial dispute, emergency, or a circumstance of an unforeseen and special nature arises. When those three things are cumulatively satisfied the section confers a discretion to grant an EMD which will reduce either the non-parole period or the overall sentence, or perhaps both.
56.The section involves an evaluative exercise on the part of the prison authority. Although the grant of an EMD has an ameliorative effect on the length of imprisonment, the purpose of the section is to encourage or reward good behaviour during times of challenge. To the extent that a grant of EMDs compensates for a deterioration of prison conditions compared to some expected norm, it does so as an incident of prison management and not as a reflection of some underlying entitlement. Still less is it an attempt to reflect what the sentencing court might have had in mind at the time the sentence was imposed. It is not, as the plaintiff submitted in his application for EMDs, designed to restore or honour the integrity of the sentence.
57.There are a number of reasons why that is so. First, the section authorises an EMD ‘on account of’ good behaviour. That is, the power responds to good behaviour. Obviously, where a prison is suffering conditions of disruption or deprivation, prisoners are likely to be under stress and they may react in a way that challenges the good order of a prison. EMDs provide an incentive, in aid of prison management, to encourage good behaviour.
58.Second, if the purpose of the section was primarily to compensate for disruption or deprivation from a particular standard, it is difficult to see why it should be given on account of good behaviour. Poorly behaved prisoners are equally likely to feel the ill effects of the disruption.
59.Third, although sentencing judges routinely take into account the burden of incarceration and may take into account the specific features of a person in assessing the impact of incarceration upon them, once sentence is passed, it is a matter for prison authorities to administer the sentence. Prison management does not proceed on some hypothetical assessment of what the particular judge had in mind in respect of the particular prisoner or prisoners generally. Prison routine and management is governed by the Act and other legislative and common law obligations including the Charter. As a result of either legislative or executive action, those matters may change in a way that may affect favourably or unfavourably on the experience of prison. Such changes do not affect or undermine the integrity of the sentence. The lawfulness of such actions turns on the legislative and executive context rather than on an assessment of whether they accord with or depart from what the sentencing judge may have contemplated. Treating the sentencing reasons or the unexpressed views imputed to the sentencing judge as providing the baseline would also have the perverse effect that EMDs would not be available where the sentencing judge had already factored into account the impact of a particular emergency because the level of disruption would already have been taken into account.[45]
[45]For example in Worboyes v The Queen [2021] VSCA 169, the Court of Appeal explained how the COVID-19 pandemic might mitigate a sentence.
60.Fourth, it accords with the extrinsic materials. Section 58E of the Act repealed a regime of uniform remissions conferred as an entitlement with the present provision that provides a discretion.[46]
[46]The Corrections (Remissions) Act 1991 repealed s 60 and inserted s 58E into the Act, substantially in its current form. The Explanatory Memorandum to the Corrections (Remissions) Bill 1990 confirmed that it was Parliament’s intention to abolish the entitlement to remissions and, instead, provide for a discretion.
61.The next issue is how the level of disruption or deprivation is to be assessed. Critical to the operation of the provision is that the prisoner has suffered or is suffering from disruption or deprivation which connotes some departure from a baseline. Obviously enough, every prison experience will involve a level of deprivation. The prisoner will be deprived of many of the rights, privileges, and benefits that are enjoyed by those who are not incarcerated. Fundamentally, they include a deprivation of liberty and restrictions on movement and association. Section 58E of the Act only applies where the disruption or deprivation arises during a dispute or emergency in the prison or in other special and unforeseen circumstances. Although the section does not say so expressly, it is tolerably clear that it is concerned with deprivation that arises from or is caused by the emergency or special circumstances. That is to say, the requirement that the disruption or deprivation occur ‘during’ an emergency does not merely stipulate a temporal connection.
62.It was accepted by the plaintiff that s 58E of the Act imposes a discretionary power that is enlivened once the preconditions are met. The proceeding was argued on that basis. In [sic] evaluating whether or not to grant EMDs, and if so how many days, involves a matter of judgment. Once the three statutory preconditions are satisfied, it is necessary for the decision maker to consider the level of disruption or deprivation, and that will entail some comparison with the situation that applies when there is no industrial dispute, emergency, or special and unforeseen circumstance that is causing the deprivation or disruption in the prison.
63.There is no bright line that mandates when a level of suffering warrants the grant of an EMD. No doubt, given that the overall purpose of the provision is prison management and to ensure good order within the prison, the decision making process will be influenced by an assessment of the extent to which prisoners will reasonably cope with disruptions to the usual running of the prison or deprivation of rights, entitlements, and benefits that are usually available. A key factor may be the need to ameliorate hardship so as to counter, through offsetting EMDs, frustration, anger and suffering that is likely to be burdensome on prisoners and play out in challenging behaviour or more serious consequences. This assessment of the level of deprivation or disruption, and the tolerance of prisoners for it, will be a product of experience and judgment for those given responsibility for prison management.
64.The focus of the provision is on the impact of an emergency or other circumstances on the operation of a prison. As Cavanough J observed in Dudley, a particular industrial dispute or emergency might be of very brief duration. Whatever the duration, the related disruption or deprivation might be quite minor. Moreover, the disruption or deprivation might have been ameliorated or compensated for in other ways.
65.No doubt, some emergencies will be confined within the prison. Others, such as the COVID-19 pandemic, will have an impact well beyond the prison walls and be felt throughout the community. In the context of an emergency, the impact felt outside the prison and the extent to which burdens are felt across a community are not irrelevant considerations that the decision maker is forbidden from taking into account. So much was accepted by the plaintiff in argument.
66.However, I accept the plaintiff’s argument that it would be wrong to reason that because everyone in the community is suffering the effects, and that disruption or deprivation is felt across the board, that s 58E of the Act can have no operation, or that there can be no relevant disruption or deprivation. The section revolves around impacts that are felt within the prison. They are not less burdensome to prisoners because they mirror impacts felt outside. For example, the fact that there is a curfew in the population, or those in the community are confined to their homes and religious services and other gatherings are prohibited, does not mean that the impacts in a prison should be discounted or ignored. Prisoners whose liberty and autonomy are so heavily restricted are more vulnerable to the impact of such deprivations and the suffering just as keenly felt even though they are pervasive.
67.Although I accept, to that extent, the plaintiff’s argument about how s 58E of the Act works, I am not persuaded that the defendant misunderstood or misapplied s 58E in the way alleged by the plaintiff. In her letter of 7 October the defendant said:
However, the overall disruption or deprivation you have experienced at Middleton has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of the requested EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs. Therefore, your application for additional EMDs is not approved.
68.As already observed, there was no error in making a qualitative assessment of the level of disruption and the defendant noted that where there had been more significant restrictions, EMDs had been given. Indeed, making some assessment of the level of the impact within the prison was essential to the task. As already noted, a disruption or deprivation may vary in time, intensity, or impact.
69.As the letter of 7 October made clear, the impact of the COVID-19 pandemic within the prison system had not been uniform. The defendant referred to ‘more significant disruptions’ occurring in prisons in the form of a restrictive regime and a reduction in out-of-cell-time. The Act reposed the relevant power in the Secretary who, together with his or her delegates, are best placed to assess the level and impact of any disruption. The use of the phrase ‘significant disruptions’ does not demonstrate that the defendant had imposed any arbitrary threshold or that she misunderstood the nature and purpose of the power.
70.The decision did not involve legal error of the kind attributed to the defendant nor was it legally unreasonably [sic]. It did not lack an evident and plausible justification. The defendant plainly accepted that the pandemic was an emergency and that it had caused disruption or deprivation. In some cases, including in respect of the plaintiff who had been granted an EMD, the impact was such that it warranted the grant of EMDs. In other aspects it did not. The qualitative assessment made by the defendant in answer to the plaintiff’s application was open to her.
71. It follows that ground 3 must be rejected.
Within the above analysis by Niall JA of the nature of the power conferred by s 58E, certain points are particularly noteworthy for present purposes, namely that:
(a) the grant of EMDs is an incident of prison management, not a reflection of some underlying entitlement;[47]
[47]Donohue [56].
(b) EMDs are designed to provide an incentive, in aid of prison management, to encourage good behaviour;[48]
[48]Ibid [57].
(c) section 58E confers a discretionary power that is enlivened once the preconditions are met;[49]
[49]Ibid [62].
(d) the decision-maker needs to consider the level of disruption or deprivation, and that will entail some comparison with the situation that applies when there is no emergency or other relevant circumstance that is causing the deprivation or disruption ‘in the prison’ [note the generalised tenor of this phrase];[50]
[50]Ibid.
(e) given that the overall purpose of the provision is prison management and to ensure good order within the prison, the decision-making process will be influenced by an assessment of the extent to which ‘prisoners’ [note the plural] will reasonably cope with disruptions to the usual running of the prison or deprivation of the rights, entitlements and benefits that are usually available;[51]
[51]Ibid [63].
(f) the assessment of the level of deprivation or disruption, and the tolerance of prisoners [again, note the plural] for it, will be a product of experience and judgment for those given responsibility for prison management;[52]
[52]Ibid.
(g) in the context of an emergency, the impact felt outside the prison and the extent to which burdens are felt across a community are not irrelevant considerations;[53]
[53]Ibid [65].
(h) to make some assessment of the level of impact ‘within the prison’ [again, note the generalised tenor of this phrase] is essential to the task;[54]
(i) it was open to the delegate in Donohue to deny EMDs to the applicant in the absence of ‘more significant disruptions’, such as being accommodated in a restrictive regime or having out-of-cell time significantly restricted because of COVID-19;[55] and
(j) the Corrections Act 1986 reposes the relevant power in the Secretary who, together with his or her delegates, are best placed to assess the level and impact of any disruption.[56]
[54]Ibid [68].
[55]Ibid [67]–[69].
[56]Ibid [69].
The analysis in Donohue by Niall JA of the nature of the power conferred by s 58E, as set out above, also informed his Honour’s treatment of Mr Donohue’s contention that the delegate had failed to ‘evaluate’ Mr Donohue’s application for EMDs. I turn now to that aspect of Donohue.
The claimed duty to ‘evaluate’ applications for EMDs, as dealt with in Donohue
In Donohue, ground one of the three pleaded grounds of judicial review was that the delegate had failed to ‘evaluate’ the material that Mr Donohue had placed before her in support of his application for EMDs, such that, according to Mr Donohue, the delegate’s decision refusing the application was infected by jurisdictional error.[57] The ground assumed that there was an implied duty to ‘evaluate’ each and every claimed impact of the relevant emergency on the prisoner as an individual. Under cover of that asserted ground, Mr Donohue had advanced submissions comparable with the principal submissions of the present plaintiffs. Niall JA summarised Mr Donohue’s submissions in this regard in the following way (footnotes included in original form but renumbered):[58]
[57]Donohue [15]–[16].
[58]Ibid [16]–[17].
16.… He submits that the obligation on the defendant to evaluate the material arises as an incident of an obligation to accord procedural fairness or, alternatively, as a freestanding obligation which requires a decision-maker to respond to a submission of substance.[59]
[59]SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, [75]–[76], [78]–[81] (Griffiths J) citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 [24] (Gummow and Callinan JJ) (‘Dranichnikov’) and SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81, [11] (Siopis, Perram and Davies JJ) (‘SZRBA’).
17.He says that the various matters he had advanced were not referred to by the defendant in her reasons; the reasons were very brief given the length of the application; they were largely taken from a template; and they do not reveal any engagement with the application. Using language taken from a number of cases concerning the Migration Act 1958 (Cth) (‘Migration Act’), he says that the issues he raised had not been evaluated,[60] dealt with,[61] or given conscientious consideration.[62]
[60]Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 446 [44], 447 [49]–[50] (Kenny, Griffiths and Mortimer JJ); [2013] FCAFC 114; SZRBA [2014] FCAFC 81, [23]–[24] (Siopis, Perram and Davies JJ).
[61]Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105, [65] (Gordon, Robertson and Griffiths JJ).
[62]Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405, 420 (Einfeld J).
Niall JA proceeded to examine the then current law relevant to the submissions that had been made on behalf of Mr Donohue under ground one, together with the relevant evidence. Ultimately, his Honour found that Mr Donohue had failed to make out this or any other ground of review.[63] In arriving at his conclusion on ground one, Niall JA took into account, among other things, the evidentiary issues that may arise when the decision-maker is under no obligation to provide reasons. Niall JA said (footnotes included in original form (with minor modifications) but renumbered):[64]
[63]Donohue [34], [50], [71], [74].
[64]Donohue [18]–[34].
18.It is not in dispute that the power in s 58E of the Act is subject to an obligation to accord procedural fairness. Although the content of the obligation is a function of the nature of the power and its statutory setting, at a minimum the decision maker has to give a prisoner who seeks EMDs an opportunity to say why he or she should be given one. As a necessary incident of the obligation to accord procedural fairness, where a prisoner makes a submission or submits an application, the decision maker must take into account what the prisoner says.[65] In Dranichnikov, the High Court said that to fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord natural justice.[66]
[65]Dranichnikov [2003] HCA 26.
[66]Ibid [24] (Gummow and Callinan JJ).
19.It is at this point where the submissions of the parties diverge. The plaintiff submits that as an incident of procedural fairness, or as a free standing obligation, the decision maker must ‘evaluate’ the matters raised in his application for an EMD. The defendant submits that there is no obligation to evaluate and that the cases relied on by the plaintiff arise from the specific statutory setting of the Migration Act. The position of the defendant softened somewhat in oral argument when she accepted that the defendant had to ‘hear’ what the plaintiff had said.
20.In the context of a statutory power, the relevant enactment will often, either expressly or by implication, permit or require the decision maker to have regard to certain matters. Where the requirement to have regard to a matter is mandatory, in the sense that compliance with the obligation is a precondition for the valid exercise of the power, such considerations are often called ‘relevant considerations’.[67] In the context of an obligation to accord procedural fairness, the decision maker will generally be required to consider any submission made on behalf of the interested person.
[67]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
21.The obligation to ‘have regard to’, ‘take into account’, or ‘consider’ the various matters advanced by a person whose interests are liable to be affected are [sic] sometimes couched or described in qualitative terms. Thus, in Tickner v Chapman[68] the Federal Court described the process as requiring an active intellectual engagement. The phrase ‘proper, genuine and realistic’ has also been used in the context of considering relevant mandatory considerations.[69]
[68](1995) 57 FCR 451.
[69]The phrase is often traced back to the decision of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713. See, Bondelmonte v Bondelmonte (2017) 259 CLR 662, 672 [29], 675, [43] (Kiefel, Bell, Keane, Nettle and Gordon JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
22.Such phrases, whether in the context of procedural fairness or the consideration of relevant considerations, may have some utility in emphasising that the statutory task and the decision making process must be one that is undertaken in a genuine rather than tokenistic way. Contrary to the submissions of the defendant, such concepts are not a peculiarity of the Migration Act.
23.However, such concepts are not without risk in the context of judicial review. The role of the Court on judicial review is to determine the lawfulness and not the merits of the exercise of statutory power. Any assessment of whether a decision maker has genuinely engaged with something said on behalf of an affected person can easily slide into an examination of whether the outcome of the decision making was justified or correct. Because any assessment of the extent to which the decision maker ‘grappled with’ the person’s case, to use the phrase adopted by the plaintiff in argument here, will often turn on an assessment of the outcome of the decision and its relationship to the matters advanced by the person, the risk of trespassing on the merits is heightened.
24.Thus, in Swift v SAS Trustee Corporation[70] Basten JA, referring to the phrase ‘proper, genuine and realistic’, said that taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.[71]
[70][2010] NSWCA 182.
[71]Ibid [45] (citation omitted).
25.If a plaintiff satisfies a court that a submission that the decision maker was required to take into account was entirely ignored, then error will be established. On the other hand, the weight to be accorded to the submission and whether, and to what extent, any of the matters are accepted by a decision maker, generally goes to the merits and not the lawfulness of the decision. They fall beyond the proper scope of judicial review. Thus, it is not open to a plaintiff to contend that a decision maker failed to evaluate the plaintiff’s submission on the basis that the decision maker gave it no weight or failed to accept it.
26.The first point that arises in considering the present argument is one of fact: what did the decision maker take into account and how did the decision maker deal with that material? Often that will be answered by reference to the reasons for decision. It may be discerned both from what is in a set of reasons and what is left out. In Minister for Immigration and Multicultural Affairs v Yusuf,[72] the High Court said, in the context of a statutory obligation to give reasons, that the failure to mention a matter may permit the inference that it was not taken into account. There is no common law obligation to give reasons and where some reasons are provided by a decision maker in the absence of a statutory obligation, the appropriateness of drawing an inference of the kind considered in Yusuf will depend on all of the circumstances.[73]
[72](2001) 206 CLR 323 (‘Yusuf’).
[73]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
27.The second point concerns the level of detail that the decision maker must go into when responding to claims and in giving reasons. Issues may arise where some, but not all, aspects of a submission are referred to by the decision maker. It is established that a decision maker does not have to deal with every issue raised by an affected person regardless of its relevance or significance. And a statement of reasons does not have to be encyclopaedic.
28. With these matters in mind I turn to ground 1.
29.Although I accept that the defendant had to ‘evaluate’ the application for EMDs, at least to the extent of considering the matters raised by the plaintiff, I am not satisfied that the defendant failed to have regard to and take into account the matters raised by the plaintiff in his application. I would not draw the inference that the plaintiff invites me to draw merely on the basis that details noted in his application were not referred to in the letter of 7 October 2020. The letter does not purport to be a statement of reasons, as opposed to advising of the decision, and there was no obligation on the decision maker to provide reasons.
30.Further, it is relevant that on 21 September 2020 the defendant had responded to many of the matters raised by the plaintiff in his application and subsequent correspondence. I am not persuaded that the decision maker did not have regard to these matters and indeed, all of the pertinent matters raised by the plaintiff when the defendant came to decide whether or not to grant the plaintiff EMDs. The plaintiff says that the 21 September letter referred to the letters of 7 and 24 August 2020 but did not expressly refer to the original application of 6 July 2020. That is true, but it takes the plaintiff nowhere when the 7 August letter repeated what had been said in the application.
31.Next, the plaintiff says that the defendant in her letter of 21 September 2020 did not refer to the free availability of the prison shop, the lack of access to face masks or sanitiser, and that events were cancelled and these had specifically been raised in the 6 July application and 7 August letter sent by the plaintiff. So much can be accepted. However, even where there is an obligation to give reasons for a decision, that obligation does not extend to referring to every piece of evidence or fact.
32.The letter of 7 October 2020 informed the plaintiff of the outcome of his application. It set out the conclusions reached by the decision maker. In the third paragraph the author referred to the overall disruption or deprivation experienced by the plaintiff. To that extent, the letter referred to the matters raised by the plaintiff in his application, which described the consequences that the pandemic response had inflicted. I am not persuaded that the decision maker ignored or failed to take into account the plaintiff’s claims. Indeed, on a fair reading the defendant appears to have accepted the description given by the plaintiff as accurate. There is nothing to suggest that the defendant either ignored or misunderstood the plaintiff’s factual assertions as to his experience at the prison. I will return to my understanding of the conclusions reached by the defendant when I deal with ground 3.
33.In reaching that conclusion I decline to draw the inference sought by the plaintiff that the letter of 7 October 2020 was a template. The basis for the inference was that the same language was employed in a decision that was considered by Cavanough J in Dudley v Secretary to the Department of Justice and Community Safety.[74] The facts referred to or found in the judgment of Dudley are inadmissible as evidence in this proceeding.[75] In any event, even if the same language were used in response to multiple applications, it would not necessarily follow that the decision maker had not had regard to the matters raised.
34.It follows that, as a matter of fact, the plaintiff has failed to make out ground 1.
[74][2021] VSC 567.
[75]Evidence Act 2008, s 91.
So far as this section of the judgment of Niall JA in Donohue is concerned, the most important points, for present purposes, made by his Honour are the following:
(a) that the decision-making process is to be undertaken in a genuine rather than a tokenistic way, but a reviewing court must take care to avoid trespassing on the merits;[76]
[76]Donohue [22]–[23].
(b) that it is not open to a plaintiff to contend that a decision-maker failed to evaluate the plaintiff’s submission on the basis that the decision-maker gave it no weight or failed to accept it;[77]
[77]Ibid [25].
(c) that the decision-maker must ‘evaluate’ an application for EMDs, at least to the extent of considering the matters raised by the prisoner;[78]
[78]Ibid [29]. My emphasis.
(d) that the letter to Mr Donohue of 7 October 2020 did not purport to be a statement of reasons, as opposed to advising of the decision, and there was no obligation on the decision-maker to provide reasons;[79]
[79]Ibid.
(e) that, even where there is an obligation to give reasons for a decision, that obligation does not extend to referring to every piece of evidence or fact;[80]
(f) that the delegate did not need to refer expressly in the decision letter to the particular matters raised by Mr Donohue: it was sufficient that the letter referred to the ‘overall disruption or deprivation experienced by [Mr Donohue]’;[81] and
(g) that, even if the same language were used in response to multiple applications, it would not necessarily follow that the decision-maker had not had regard to the matters raised.[82]
[80]Ibid [31].
[81]Ibid [32].
[82]Ibid [33].
It is also significant for present purposes that in Donohue, in dealing with ground 2 of the application for judicial review, Niall JA held that, since the liberty of prisoners has been lawfully burdened by their sentences of imprisonment, decisions under s 58E to refuse to grant EMDs are not to be regarded as increasing that burden or as limiting prisoners’ rights; that, therefore, the Charter of Human Rights and Responsibilities Act 2006 is not engaged in relation to decision-making under s 58E; and that, accordingly, the decision-maker is not required to have regard to the Charter rights of liberty and freedom of movement in deciding whether or not to grant EMDs.[83]
The attempt by the plaintiffs to construct a duty to ‘evaluate’ applications for EMDs greater than any duty recognised in Donohue
[83]Donohue [35]-[50], esp at [42] and [49].
The plaintiffs did not, in their pre-trial written submissions, submit explicitly that Niall JA had been in error in any way in Donohue. In oral submissions, Mr Albert of counsel said that the plaintiffs did not ‘really’ come before the Court asking for ‘any great advance’ on what had already been said.[84] However, in my view, the plaintiffs did in effect contend, in both their written and oral submissions, that there rests on the Secretary and her delegates an exacting duty to ‘evaluate’ applications for EMDs, extending beyond the duty to consider, upon application, the exercise of the discretion conferred by s 58E as expounded in Donohue. Just as Mr Donohue had contended (unsuccessfully) in Donohue,[85] the plaintiffs in the present cases contended that the alleged duty involved an obligation to address, and to ‘evaluate’, every claimed impact of the relevant emergency on the prisoner as an individual. Thus, in his pre-trial written submissions, Mr McPadden submitted that it was not enough for the delegate to merely ‘note’ what Mr McPadden had put forward.[86] Rather, according to Mr McPadden, the delegate was required to ‘then’ evaluate that material.[87] He submitted that the delegate had not taken ‘the second critical evaluation step’.[88] And, as mentioned in [39] above, at the oral hearing before me, Mr Albert submitted, likewise, that the delegates were obliged to address, and to ‘evaluate’, each and every claim of disruption or deprivation made by the plaintiffs.
[84]T18; cf T25, 32–33, 246, 256.
[85]See [44] above of this judgment.
[86]Outline of submissions for Mr McPadden dated 14 September 2022, [45].
[87]Ibid.
[88]Ibid.
The plaintiffs went further still. They attached a very strong meaning to the word ‘evaluate’. They asserted that, in view of the nature of the decisions to be made, the delegates were required to reflect carefully on the human consequences of the instances of disruption or deprivation claimed to have been suffered by the prisoners. This can be seen most clearly from paragraphs [8]–[13], and especially from paragraph [13] (to which I will come in detail), of the pre-trial written submissions of Mr Wells. Paragraphs [3]–[13] of that document comprised a section headed ‘Legal Context’. That section in turn was wholly adopted in the pre-trial written submissions of the other three plaintiffs. I will call the adopted section ‘the plaintiffs’ common written submissions’.
In paragraph [8] of the plaintiffs’ common written submissions, the plaintiffs contended that, on receiving representations in support of an application for EMDs, the Secretary or her delegate is required to ‘read, identify, understand and evaluate the representations… [and] have regard to what is said in the representations, bring their mind to bear on the facts stated in them and the arguments or opinions put forward, and appreciate who is making them’. Here the plaintiffs cited paragraph [24] of the judgment of the plurality of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) (with whom Gageler J relevantly agreed) in Plaintiff M1/2021 v Minister for Home Affairs,[89] a matter that was decided in May 2022, subsequent to the judgment of Niall JA in Donohue. Plaintiff M1/2021 is an important case for present purposes, and I will set out paragraph [24] and several other relevant paragraphs of the judgment in full in due course.
[89](2022) 96 ALJR 497.
Plaintiff M1/2021 dealt with the proper interpretation and application of certain provisions of the Migration Act 1958 (Cth), especially ss 501 and 501CA thereof, that related to the cancelling of visas on character grounds and the making of representations in favour of revoking the decisions to cancel. Where a decision is made under s 501 to cancel a person’s visa, s 501CA(3) of the Migration Act requires the Minister, as soon as practicable, to invite the person concerned to make representations to the Minister about revocation, under s 501CA(4), of the cancellation decision. If the decision to cancel the visa is maintained, it generally leads to the removal of the person concerned from Australia or, sometimes, indefinite detention. The person concerned may have lived in Australia for a very long period. Or the person may claim to fear dire consequences if removed to another country. In Plaintiff M1/2021 itself, the former visa holder had made a range of claims, including that he would be persecuted, tortured and killed if he were sent back to South Sudan.[90] The Court was well aware of those claims.[91] So, the stakes were very high. They often are in such cases, something the Commonwealth Parliament must have envisaged when enacting the relevant statutory scheme.
[90](2022) 96 ALJR 497, 512–513 [41] (Kiefel CJ, Keane, Gordon and Steward JJ); 514–515 [48], [52] (Edelman J, dissenting); 524 [104] (Gleeson J, dissenting).
[91]See previous footnote.
As Mr Albert conceded during oral argument,[92] the stakes are not as high in applications for EMDs as they are in most migration applications, especially migration applications involving refugee status determination or the potential removal from Australia of long-term residents. Nevertheless, in the present cases, the plaintiffs referred extensively to Plaintiff M1/2021. Thus, in addition to the abovementioned reference in the plaintiffs’ common written submissions to paragraph [24] of the judgment of the plurality in Plaintiff M1/2021, there were references to that same paragraph, and/or to other paragraphs of that judgment, and/or to parts of the dissenting judgment of Gleeson J, in the non-common parts of the written submissions of Mr McPadden, Mr Wells and Mr Quail. Mr McPadden referred to paragraph [23] of the judgment of the plurality for the proposition that a decision-maker cannot ignore representations made by an applicant for EMDs.[93] Mr McPadden also made his own additional reference to the abovementioned paragraph [24] of the judgment of the plurality, for the proposition that the decision-maker must read, identify, understand and evaluate the representations.[94] Further, Mr McPadden sought to rely[95] on paragraph [111] of the dissenting judgment of Gleeson J in Plaintiff M1/2021. He cited that paragraph for the bold proposition that, where template reasons fail to disclose an intellectual process of evaluation, the decision purportedly supported by the template reasons will be infected by jurisdictional error. Then, citing paragraph [114] of her Honour’s dissenting judgment, Mr McPadden submitted that this proposition holds good even where the decision-maker asserts that he or she has considered the relevant person’s representations and all other relevant matters.[96] Further, each of Mr McPadden,[97] Mr Wells,[98] and Mr Quail[99] referred to and sought to apply a sentence from paragraph [27] of the plurality judgment in Plaintiff M1/2021, being a sentence to the effect that if the decision-maker ignored, overlooked or misunderstood relevant facts or materials, or a substantial and clearly articulated argument or misunderstood the case being made by the former visa holder, that might give rise to jurisdictional error.
[92]T45–46, cf T48–49.
[93]Outline of submissions for Mr McPadden dated 14 September 2022 at [41].
[94]Ibid, loc. cit.
[95]Ibid [49].
[96]Ibid.
[97]Ibid [41].
[98]Outline of submissions for Mr Wells dated 14 September 2022 at [20].
[99]Outline of submissions for Mr Quail dated 14 September 2022 at [10].
At the hearing, Mr Albert, speaking in effect for all four plaintiffs, referred to the judgment of the plurality in Plaintiff M1/2021 in some detail, and this led to a lengthy discussion of the implications of the case.[100]
[100]T31–42, 48–53.
As will appear, I do not think that Plaintiff M1/2021 assists the plaintiffs in their bid to extend the relevant legal duty beyond the duty expounded in Donohue. Quite the reverse.
As the Secretary further submits,[455] ground 1 amounts to no more than a criticism of the amount of detail contained in the notification letter that Mr Quail received. To adopt the language of Niall JA in Donohue,[456] Ms Westin’s letter dated 27 October 2021 did not ‘purport to be a statement of reasons.’ As discussed at length above,[457] there was no obligation on Ms Westin to provide reasons and her letter should not be treated as though it were a statutory statement of reasons. In any event, it is clear that Ms Westin took into account the matters that Mr Quail had raised. When Ms Westin was notifying Mr Quail of her decision to refuse his EMD application, she was not obliged, on any view, to list every matter that Mr Quail had raised. This is all the more evident in circumstances where many of the claims raised by Mr Quail were ‘not clearly articulated’ (particularly in the way Mr Quail’s claims are now framed).[458] I note that the matter of clothing from family and friends was given no particular prominence in the list of ‘lost’ privileges set out in Mr Quail’s EMD application. I note also that Mr Quail does not plead in his further amended originating motion that any other specific item in the list of privileges was not considered or ‘evaluated’ by Ms Westin.
[455]Outline of submissions for the Secretary in Quail [21].
[456]Donohue [29].
[457]Especially at [104]–[114] above of this judgment.
[458]Compare Plaintiff M1/2021 (2022) 96 ALJR 497, 509 [25].
The points made by the Secretary in her pre-trial written submissions in answer to Mr Quail’s first ground were discussed with Mr Albert at the oral hearing.[459] In my view, Mr Albert had no good answers to the Secretary’s points. Mr Albert felt constrained to submit that the problem with Ms Westin’s letter was that it was not ‘exhaustive’.[460] Mr Albert conceded that Mr Quail did not highlight the matter of clothing. But, according to Mr Albert, the delegate must deal explicitly with (and ‘evaluate’) everything relevant that is raised in an EMD application.[461] It was in the course of this discussion that Mr Albert sought to rely on paragraph 65 of the judgment of the Full Federal Court in CZBP,[462] but, as mentioned above,[463] that paragraph merely records submissions. It does not contain any holding of the Full Court, much less any holding that would support Mr Albert’s submissions in the present regard.
[459]T104–124.
[460]T107. See also at T111.
[461]T109.
[462](2014) FCAFC 105.
[463]See [90] above of this judgment.
Ms Westin’s letter to Mr Quail of 27 October 2021 was relatively detailed. Although it contained language similar to language contained in other decision letters, it contained a considerable amount of different language too. I do not accept that Ms Westin’s letter is properly described as ‘formulaic’ or ‘template’ in nature. And I reiterate that it is not appropriate to read that letter as though it were the product of a statutory obligation to give reasons. The burden of proving any relevant failure by Ms Westin to consider the matters raised in the EMD application fell on Mr Quail. The evidence filed in Mr Quail’s proceeding does not discharge that burden.
Further, and in any event, I regard it as quite farfetched to say that Ms Westin was obliged to ‘evaluate’ Mr Quail’s complaint about the stopping of clothing from family and friends during the pandemic, in the sense that she was impliedly required by law to contemplate the human consequences for Mr Quail of that particular development, on pain of her decision being nullified for jurisdictional error. Apart from anything else, that would, quite inappropriately, leave no room for the application of the lawful policy (as to being accommodated in a restrictive regime or having out-of-cell time significantly restricted, and as to the suspension of in-person visits) which is expressly referred to in Ms Westin’s decision letter of 27 October 2021.
Provisional conclusion on ground 1 in Quail v Secretary (failure to ‘evaluate’)
For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the other proceedings, I would not uphold ground 1 of Mr Quail’s further amended originating motion.
Ground 2 in Quail v Secretary: legal unreasonableness
In his pre-trial written submissions,[464] Mr Quail submits that the public law principles of legal reasonableness (or legal unreasonableness), which I have discussed above,[465] are applicable to decision-making under s 58E of the Corrections Act 1986. So much be accepted.
[464]Outline of submissions for Mr Quail dated 14 September 2022 [13], citing Dudley [45], [89].
[465]At [100]–[102] above of this judgment.
Mr Quail proceeds to make the following submissions on the facts and the evidence:[466]
[466]Outline of submissions for Mr Quail dated 14 September 2022 [14]–[16] (footnotes omitted).
14.In her brief letter, Ms Westin highlighted and sought to draw a distinction between Mr Quail’s deprivation and that of others in prison in Victoria. In that regard, Ms Westin highlighted that:
Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.
Thus, Ms Westin identified as a sufficiently ‘significant disruption’ a person having ‘out-of-cell time significantly restricted’ as a basis to grant an EMD.
15.Mr Quail did not have any out-of-cell time restricted by reason of the COVID-19 emergency. His restriction during the COVID-19 emergency was more absolute. As his submission recorded:
I have not been able to have my leaves out in the community for pre-release.
Mr Quail was due to have leave from prison as a critical part of his reintegration preparation. They were cancelled as a result of the COVID-19 emergency and he was in prison for their duration instead.
16.It defies reason that out-of-cell time being restricted – not scrapped – yields EMDs but having time out of prison in the community scrapped – not just restricted – yields no apparent consideration nor the grant of any EMDs. It could not rationally be said that a lesser form of deprivation of liberty justifies the exercise of the discretion where a more substantial form does not. It follows that the decision was legally unreasonable and should be quashed as a result.
Compelling answers to these submissions are to be found in the Secretary’s responsive outline in Quail.[467]
[467]Secretary’s outline of submissions in Quail [23]–[29].
As the Secretary submits,[468] apart from the single sentence in Mr Quail’s letter of 5 July 2021 to the effect that he had ‘not been able to have’ his ‘leaves out in the community for pre-release’, there is no evidence before the Court to support his submission that he was ‘due to have leave from prison as a critical part of his reintegration preparation’ or his submission that ‘[t]hey were cancelled’. In any event, as the Secretary further submits,[469] s 57B of the Corrections Act 1986 governs the grant of rehabilitation and transition permits, and it gives the Secretary a broad discretion to issue (or not issue) such permits. They are not an entitlement, and there is no evidence (apart from the abovementioned single sentence in the 5 July 2021 letter) to establish whether or not Mr Quail had been granted a permit or merely had an expectation of being granted a permit or otherwise.
[468]Ibid [23].
[469]Ibid.
I agree with the Secretary[470] that Ms Westin’s differential treatment, for EMD purposes, of the non-provision of ‘leave outs’, on the one hand, and ‘being accommodated in a restrictive regime or having your out-of-cell time significantly restricted’, on the other hand, does not, of itself, show that Ms Westin’s decision involved legal unreasonableness. Section 57B of the Corrections Act 1986 provides that permits for ‘leave outs’ can only be issued for specific rehabilitation and transition purposes. In contrast, as the Secretary submits,[471] time out-of-cell and liberty to mix with other prisoners is a requirement of humane incarceration that can only be taken away in very limited circumstances – they are not something which, under the Corrections Act 1986, the Secretary approves for specific purposes. Hence, it is not ‘lacking in rational or plausible justification’ for the Secretary to treat these two things differently.
[470]Ibid [28].
[471]Ibid.
In any event, as the Secretary further submits,[472] the Court has no evidence before it about ‘leave outs’ or about ‘being accommodated in a restrictive regime’ upon which to undertake the nuanced (merits) assessment which Mr Quail in effect calls for in asserting that the absence of the former is more significant than the presence of the latter. Mr Quail has not established that not being provided with ‘leave outs’ is necessarily a larger or more onerous impingement on a prisoner’s residual liberty than being denied the ability to move normally within the limits of a particular, relevant prison. Mr Quail himself was in a minimum security, country prison. There is no evidence as to what escort arrangements or other restrictive arrangements might have accompanied any ‘leave outs’ which he might have been permitted to have in the absence of the COVID-19 pandemic. Nor is there any evidence as to the period of time that any ‘leave out’ for Mr Quail might have occupied. For all the Court knows, a ‘leave out’ might typically last a much shorter time than a lockdown. The burden of proof in relation to such matters was on Mr Quail, and he has made no attempt to discharge it.
[472]Ibid.
The Secretary correctly submits[473] that Mr Quail’s quarrel – based on a single sentence contained in a notification letter – amounts to no more than an invitation to this Court to conduct a review of the decision made on his EMD application on the merits. I agree with the Secretary[474] that it is not this Court’s function to undertake its own assessment of whether, given that the decision-maker considered that being accommodated in a restrictive regime did (generally) warrant the grant of EMDs, she should also have decided that not being provided with ‘leave outs in the community’ also warranted the grant of EMDs. As the Secretary rightly submits,[475] it was for the delegate to determine whether any particular deprivation or disruption suffered by Mr Quail was sufficiently serious to justify the exercise of the power under s 58E(1) based on the material known to the delegate. And, as already mentioned,[476] I do not accept that Ms Westin’s relatively detailed decision letter on Mr Quail’s EMD application can fairly be described as ‘formulaic’ or ‘template’ in nature. To the contrary, it tends to show careful consideration of Mr Quail’s EMD application.
[473]Ibid [29].
[474]Ibid.
[475]Ibid.
[476]See [233] above of this judgment.
At the oral hearing,[477] Mr Albert was unable to offer anything which, to my mind, answered these points, or which added anything new to Mr Quail’s written submissions as to legal unreasonableness.
[477]T124–134.
Provisional conclusion on ground 2 in Quail v Secretary (unreasonableness)
For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the other proceedings, I would not uphold ground 2 of Mr Quail’s further amended originating motion.
Thomas v Secretary
At all relevant times, Mr Thomas was under sentence for aggravated burglary, armed robbery, aggravated rape and false imprisonment.[478] His sentence was due to expire on 21 September 2026 and his non-parole period on 23 July 2023.[479]
[478]Affidavit of Laura D’Amico, a solicitor acting for the Secretary, affirmed on 7 April 2022 and filed on behalf of the Secretary, [4]: CB 382–384.
[479]Ibid.
Between 20 March 2020 and 18 November 2020, Mr Thomas was serving his sentence at Ravenhall Prison on the western outskirts of the Melbourne metropolitan area. On 18 November 2020 he was transferred to the abovementioned Middleton Prison, where he remained at all relevant times thereafter.[480]
[480]Affidavit of Mr Thomas affirmed on 2 March 2021, page 13/14: CB 143.
It is common ground that the relevant application for EMDs for Mr Thomas was made by him, or on his behalf, on 26 October 2020.[481] On that date, he was still at Ravenhall Prison. It seems that the application was not made on a Departmental form. Rather, Mr Thomas was included as one of numerous prisoners at Ravenhall Prison on whose behalf an elaborate typed submission was made to the Commissioner of Corrections Victoria in support of the grant to all Ravenhall prisoners of EMDs for every day from 21 March 2020 until Ravenhall could return to ‘ordinary function’. The document comprised a covering letter of 10 pages, together with, apparently, nine annexures. The two (identical) versions of the document that appear in the Court Book omit most of the annexures.[482] The list of annexures indicates that they included three separate ‘submissions’ by persons held at Ravenhall. However, none of those persons is named in the list and none of their submissions is included in the Court Book. There is nothing to indicate that Mr Thomas was the author of any of the three ‘submissions’ referred to in the list of annexures.
[481]T137–138. And see the index to the bundle of documents comprising exhibit ‘LD-1’ to the affidavit of Laura D’Amico affirmed 7 April 2022: CB 386.
[482]CB 147–165; and CB 387–403.
The latest date referred to internally in the Ravenhall document is 5 August 2020. However, as mentioned above, it is common ground that this document and its annexures (at least to the extent appearing in the Court Book) should be treated as having been submitted on behalf of Mr Thomas to the Corrections authorities as an application for EMDs; and as having been so submitted on 26 October 2020. On the other hand, it is evident that the document was prepared on behalf of many other Ravenhall prisoners as well.
The undated document states that its ‘writer’ is Mr Dwayne Antojado (who is said to hold a Bachelor of Business and a Bachelor of Laws), and that there were ‘contributions’ by five other named persons. It states that it is to be sent to the Commissioner of Corrections of Victoria by Mr Antojado and Mr Paul Judd (one of the ‘contributors’) on behalf of all persons held in custody at Ravenhall. It is a prolix document full of legal or quasi legal submissions that, as confirmed in Dudley and Donohue, are mainly based on the misconceived notion that s 58E confers entitlements to EMDs. It contains various lists of facilities or services said to have been suspended or reduced at Ravenhall on account of the COVID-19 pandemic. It also contains various complaints about the alleged insufficiency of the measures taken by the authorities to compensate for the losses or restrictions involved. It claims to represent a synthesis of information gathered by the contributors from prisoners at Ravenhall.
The document acknowledges that ordinary prisoners at Ravenhall had been granted EMDs for 22 April 2020, 23 April 2020, 21 July 2020, 22 July 2020, 23 July 2020, 24 July 2020, 25 July 2020 and 5 August 2020, and that this had been done on a one-for-one basis, resulting in a total of eight EMDs per prisoner in respect of those days.[483] The document also indicates that prisoners in quarantine had been granted further EMDs.[484]
[483]CB 155.
[484]Ibid.
The only reference to Mr Thomas in his ‘application’ for EMDs is in annexure 9 thereto, which is variously entitled ‘Itemised analysis of individual submissions’ and ‘Raw data of individual submissions’. Annexure 9 lists 103 prisoners in alphabetical order in a chart. The chart indicates which category of restriction or hardship, from amongst a list of such categories, had been mentioned by each listed prisoner in their individual ‘submission’ as gathered by the ‘contributors’. As already mentioned, the larger document does not include any individual submission from Mr Thomas to the Corrections authorities. However, the chart indicates that Mr Thomas had mentioned to the ‘contributors’ restrictions or hardships that fell into seven of the categories used in the document. For Mr Thomas, those categories were: contact visits; education and rehabilitation; mental health; procurement of goods; procurement of goods by means of ‘special spends’; postal and other communication delays; fears about personal health due to the epidemic; and access to the learning resource centre.
Without legal representation, Mr Thomas commenced this proceeding, by originating motion, on 22 March 2021. That date was prior to the date of the decision of Ms Westin which is presently under challenge, namely 16 April 2021. Mr Thomas’ originating motion was supported by an affidavit affirmed on 2 March 2021. At that stage, Mr Thomas had been at Middleton Prison for about four months. Perhaps unsurprisingly, Mr Thomas’ affidavit looked much like the second EMD application that had been made by Mr McPadden.[485] Mr Thomas’ affidavit wrongly assumed that EMDs were entitlements of prisoners. The Court Book also contains a second affidavit of Mr Thomas, being an affidavit that was also affirmed on 2 March 2021, which was made an exhibit to his first mentioned affidavit. The second affidavit suffers from the same defects as the first affidavit.
[485]See[145]–[149] above of this judgment.
On 16 April 2021 Ms Westin wrote to Mr Thomas, by now at Middleton Prison, in the following terms (omitting formal parts):[486]
[486]CB 172; SCB 47.
Dear Mr Thomas
Emergency management days
I am writing in relation to your application for emergency management days (EMDs) dated 26 October 2020.
In accordance with Commissioner’s Requirement 2.3.2 Emergency Management Days, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency.
Please note that Corrections Victoria has introduced an automatic consideration process for the COVID-19 emergency.
As at 16 April 2021, you have already been granted 18 EMDs relating to the COVID-19 emergency.
While I note your circumstances, your application for additional EMDs is not approved, as you have not demonstrated that your circumstances meet the criteria, and EMDs that you are eligible for having already been granted.
The disruption or deprivation you have experienced has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs.
Yours sincerely
Melissa Westin etc.
On 6 May 2021, still without legal representation, Mr Thomas filed an amended originating motion. It sought to attack Ms Westin’s decision of 16 April 2021 as unjustified. It still sought, by way of relief, an order that the Court require the Secretary to grant Mr Thomas EMDs as claimed originally.
No further evidence was filed by Mr Thomas at that stage, nor until after pro bono counsel became involved in early June 2022. At that time, Mr Thomas filed a short, formal affidavit (affirmed on 2 June 2022) seeking leave to file a further amended originating motion. As in the other cases, leave was granted. And, as in the other cases, an opportunity was provided to Mr Thomas to file and serve any additional affidavit material upon which he might seek to rely in support of his further amended originating motion. Mr Thomas did not take up that opportunity.
The only other affidavit filed in the Thomas proceeding is a formal affidavit of Laura D’Amico, affirmed 7 April 2022, which had been filed in support of the Secretary’s abortive application for summary dismissal.
Mr Thomas’ further amended originating motion sets out the following (only) as the ‘GROUNDS RELIED UPON’:[487]
1.The defendant’s decision was legally unreasonable in that it was illogical or irrational, demonstrated by the defendant:
a.Stating that the plaintiff had ‘not demonstrated that your circumstances meet the criteria’ and that ‘the disruption and deprivation’ you have experienced… does not warrant the granting of EMDs; but also
b.Acknowledging that the plaintiff did meet the criteria and had experienced disruption and deprivation to warrant the granting of EMDs because he had ‘been granted 18 EMDs relating to the COVID-19 emergency’.
[487]CB 180.
The pre-trial written submissions filed on behalf of Mr Thomas[488] contain some erroneous or incomplete statements of fact. First, it is stated that Mr Thomas’ request ‘dated 26 October 2020’ was for ‘emergency management days’.[489] However, this does not recognise that prisoners at Ravenhall had already (ie prior to 26 October 2020) been granted some EMDs,[490] and it appears to assume the contrary. Second, it is stated that Mr Thomas’ request arose and relied upon ‘the restrictions imposed at Middleton within the Loddon Prison precinct by reason of the COVID-19 emergency’ (my emphasis).[491] In fact the ’request’ was based entirely on the restrictions imposed at Ravenhall. Mr Thomas had not been transferred to Middleton as at 26 October 2020. That did not happen until 18 November 2020. Third, it is stated that Mr Thomas lodged a 17-page application for EMDs; and for that proposition a reference is given to a bundle of documents said to be exhibited to an affidavit of Mr Mariadason dated 8 April 2022. The correct reference would have been to an exhibit bundle attached to the abovementioned affidavit of Laura D’Amico affirmed on 7 April 2022. More importantly, the length of the document (which, in its full form, presumably greatly exceeded 17 pages) was mainly due to the fact that it was prepared on behalf of all of the prisoners at Ravenhall. And, as mentioned above, annexure 9 to the document included details for 103 individual prisoners. So it is not accurate to refer to the whole thing as Mr Thomas’ application for EMDs. Thus Mr Thomas’ criticism (in paragraphs 3 and 9 of his pre-trial written submissions) of Ms Westin’s response to his ‘application’, namely criticism on the basis that her response came ‘almost six months later’ and comprised ‘less than a page’ and was ‘very brief’, is misplaced.
[488]Outline of submissions for Mr Thomas dated 14 September 2022.
[489]Ibid [1].
[490]As mentioned in [250] above of this judgment.
[491]Outline of submissions for Mr Thomas dated 14 September 2022 [1].
In [4] of his pre-trial written submissions, Mr Thomas submits that Ms Westin’s decision to refuse him (additional) EMDs was an exercise of the ultimate discretionary power conferred by s 58E, rather than being a reflection of a determination that the pre-conditions in s 58E had not been fulfilled. So much may be accepted. Indeed, as will be seen, this circumstance serves only to undermine Mr Thomas’ case.
Paragraph [5] of the pre-trial written submissions deals with the principles relating to legal unreasonableness. I have already dealt with that topic.
Paragraphs [6]–[9] of Mr Thomas’ pre-trial written submissions should be set out in full. They are as follows:
6.Ms Westin’s letter is internally inconsistent and her reasons were thus irrational or illogical.
7.Ms Westin acknowledged that Mr Thomas had received 18 EMDs. He could only have been given those according to law if Mr Thomas had endured disruption or deprivation of sufficient magnitude during the COVID-19 emergency, and he had been of good behaviour during that period.
8.However, Ms Westin rejected Mr Thomas’ application for further EMDs, on the basis that his circumstances did not meet the criteria and the disruption and deprivation he had experienced did not warrant the granting of EMDs. This is incoherent with the acknowledgement that he had received EMDs. Mr Thomas would not have received any EMDs if his circumstances failed to meet the criteria. Equally, Mr Thomas would not have received any EMDs if his experience of disruption and deprivation did not warrant EMDs being granted.
9.The Court can safely draw the inference – including by reliance on what is clearly regurgitated language from other EMD refusal letters – that the decision in respect of Mr Thomas relied on ‘mechanical formulaic expression and pre-digested shorthand expressions [which] hide a lack of the necessary reflection upon the whole consideration of the human consequences involved’[492] and the submissions made by Mr Thomas. As has been observed in like circumstances:
Ordinarily, it might be possible to determine from the balance of the reasons of a delegate what the actual process of reasoning was and, more importantly, whether the insertion of the incorrect statement was merely an editorial error – perhaps an errant cut and paste – rather than something going to the root of the reasoning process. However, unfortunately this is not possible. Apart from very generalised statements… there is little in the way of forensic substance to the balance of the delegate’s reasons. The impression that there has been carried out a mechanical process of cutting and pasting devoid of cognitive activity is not in any way dispelled by observing that at least two paragraphs of the reasons have clearly been copied… My impression is that the reasons of the delegate bespeak a desire to dispose of the appellant’s application by the route involving the least amount of effort on the delegate’s part.[493]
The very brief and self-contradictory response by Ms Westin to Mr Thomas’ lengthy submission could be described in similar terms. However the letter is described, it reveals an irrationality that infects the exercise of power fundamentally enough to amount to jurisdictional error in the form of legal unreasonableness.
[492]Citing Minister for Home Affairs v Omar (2019) 272 FCR 589 at [37].
[493]Citing SZNK v Minister for Immigration and Citizenship [2010] FCA 651 at [38]–[39].
The thrust of [9] of Mr Thomas’ pre-trial submissions has largely been dealt with above.[494] As to the ‘cut and paste’ case of SZNZK to which Mr Thomas refers, I would acknowledge that the decision letters in the present case may have involved some cutting and pasting, but not, in all the circumstances, to an extent that I would regard as concerning. The facts in SZNZK were very different. There, a delegate of the Commonwealth Minister for Immigration had rejected a claim for refugee status. Due to a mix up, the delegate had not taken into account the applicant’s statement of his claims, but rather the statement of someone else altogether. This emerged from the delegate’s statutory statement of reasons, which was required to be in the usual detailed form.[495] Of course, there was no equivalent requirement here. SZNZK does not avail Mr Thomas.
[494]See [59]–[86] above of this judgment.
[495]See Migration Act 1958 ss 65 and 66 and Acts Interpretation Act 1901 (Cth) s 25D.
During discussions about the Thomas matter at the oral hearing, it became apparent that, inconsistently with [4] of Mr Thomas’ pre-trial submissions as described above, Mr Albert’s whole argument in Thomas depended upon the proposition that, in her letter of 16 April 2021, Ms Westin was using the expression ‘criteria’ to refer to the pre-conditions specified in s 58E, as distinct from any criteria that the Department (as a matter of policy) might have adopted in relation to the circumstances in which the discretion to grant EMDs to prisoners who met the pre-conditions would be exercised.[496]
[496]T142–144, 148–149.
In my view, that reading of Ms Westin’s letter is quite untenable.
Mr Albert submitted that there was no evidence to support the view that Ms Westin was referring to policy-related criteria.[497] I disagree. There was a large amount of such evidence. It included the abovementioned Departmental fact sheet of 20 April 2020, and the references in the evidence to that document and to other similar Departmental documents.[498] It included the very terms of Ms Westin’s letter to Mr Thomas of 16 April 2021. In the letter, Ms Westin referred to the automatic EMD process, which in turn is referred to in the Departmental fact sheet of 20 April 2020, and which plainly sets out certain criteria that are to apply in Departmental decision making in relation to EMDs, being criteria additional to the statutory pre-conditions. Correspondingly, Ms Westin stated, in the last paragraph of the letter of 16 April 2021, that the disruption or deprivation that Mr Thomas had experienced had not been ‘significant’ in the context of the pandemic; and that only more ‘significant’ disruptions, such as being accommodated in a restrictive regime or having one’s out-of-cell time significantly restricted because of COVID-19, would result in the granting of EMDs. In my view, just as I held in Dudley[499] in relation to the corresponding passage of the decision letter sent by Ms Westin to Mr Dudley, Ms Westin was not, in in her letter to Mr Thomas, referring to the matter of ‘significant’ disruption or deprivation in connection with the ‘third step’ of EMD decision-making (which concerns the pre-conditions) but rather in connection with the ‘fourth step’, namely the exercise of the ultimate discretion.
[497]T143.
[498]See especially [31], [39] and [204]–[209] above of this judgment.
[499](2021) 66 VR 403, 420 [37].
As is now common ground, the fact is that Mr Thomas had been granted 18 EMDs as at 16 April 2021. There is no suggestion in Ms Westin’s letter that those EMDs were wrongly granted. Presumably, those EMDs were granted, in accordance with Departmental policy, as a result of (to use a shorthand term) ‘lockdowns’. In the letter, Ms Westin was explaining that, in her view, the circumstances outlined in Mr Thomas’ application did not warrant the grant of ‘additional’ EMDs. Plainly, conditions within a prison can vary from time to time. On some occasions, it seems, the conditions were such that the relevant decision-maker decided that Mr Thomas should be granted EMDs. He received 18 EMDs accordingly. However, Ms Westin was apparently of the view that, on all other occasions, the conditions in the relevant prison or prisons were different. In Ms Westin’s estimation, any disruption or deprivation that Mr Thomas had experienced had not been ’significant’ on those other occasions. Hence, in the view of Ms Westin (applying the relevant Departmental policy), the discretion did not fall to be exercised.
In my opinion, there is absolutely nothing irrational or devoid of plausible justification in that.
Mr Albert invites me to adopt a reading of Ms Westin’s letter that would involve extraordinary self-contradiction. It would also be inconsistent with what Ms Westin said herself in the letter of 16 April 2021 and with what was said, in similar language, in several other (cross-admitted) decision letters set out above.
The High Court has ruled that even statutory statements of reasons of administrators are to be read in a benign fashion.[500] As is pithily remarked in the leading Australian text on judicial review of administrative action, there is to be no ‘nitpicking’.[501]
[500]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
[501]Arronson, Groves and Weeks, Judicial Review Administrative Action and Government Liability, 2022 [5.260]. See also Grujovska v Brand [2023] VSCA 59 at [24] and the cases referred to in footnote 17 thereto.
When this principle was raised with Mr Albert at the oral hearing,[502] he said that, while nitpicking is not permitted, courts should not put on blinkers but should engage with what the decision-maker actually said; and should assume that the decision-maker meant what they said. For that proposition, Mr Albert cited W375/01A v Minister for Immigration and Multicultural Affairs.[503] Mr Albert’s reference was presumably to paragraph [16] of W375/01A. That was a case relating to the Refugee Review Tribunal, which was determining matters of very great moment, and which was subject to strict requirements as to the provision of written reasons. It was in that context that, in paragraph [16], the Full Court of the Federal Court said that, ‘provided the Court acts with due caution, it may look closely at the decision to see whether there is legal error’. Indeed, the Full Court noted that, in reviewing the reasons of the Refugee Review Tribunal, the Court was entitled to take into account the fact that that Tribunal was constituted by trained personnel; that the Tribunal had obvious expertise in the performance of its functions; that it had legal advice available to it; and that its members were familiar with the relevant legal principles. It was only after making those observations that the Full Court said that there was no reason to suppose that the Refugee Review Tribunal does not mean what it says, or that it does not say what it means. The Full Court was not purporting to lay down any general principle, along those lines, applicable to all administrators. It was referring only to the Refugee Review Tribunal. By comparison, although Ms Westin may have been a senior and experienced public servant, there is nothing to indicate that she had legal training or legal assistance in the making of the decisions in question. Moreover, Ms Westin was not under any statutory obligation to give reasons, much less written reasons. Further, the issue in W375/01A was not an issue concerning unreasonableness. The question was whether the Refugee Review Tribunal had made an error of law. The present situation is very different.
[502]T143–144.
[503](2002) 67 ALD 757.
The burden of proving that the decision of Ms Westin was legally unreasonable rested squarely upon Mr Thomas. It is not enough for Mr Thomas to show that the decision might have been legally unreasonable. He needed to prove that it was legally unreasonable.[504] That is a very difficult burden to discharge. I note that no attempt was made on behalf of Mr Thomas to question Ms Westin in relation to her letter of 16 April 2021.[505]
[504]See [103] above of this judgment.
[505]See and compare [157] and [180] above of this judgment.
Provisional conclusion in Thomas v Secretary
For these reasons, subject to anything sufficiently potent in the (cross-admitted) evidence in the proceedings brought by the other plaintiffs, I would not be satisfied that the decision of Ms Westin made on 16 April 2021 was affected by jurisdictional error and I would dismiss the Thomas proceeding.
The effect of the cross-admitted evidence
It will be apparent from the above that, in my view, the cross-admitted evidence tends strongly, in each case, to favour the Secretary rather than the relevant plaintiff. In particular, it tends to confirm that each decision under challenge was made in accordance with a rational Departmental policy that has not been challenged. That sufficiently explains any repetitive language in the decision letters.
Overall conclusion and orders
For these reasons, I am not satisfied that any of the decisions in question is affected by jurisdictional error. Although, as indicated above, I will grant extensions of time in McPadden, each of the four proceedings will be dismissed.
I will hear counsel as to the form of final orders and as to costs.
---
14
24