Mikhail v Commissioner of Corrective Services - [2014] WASC 399

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MIKHAIL -v- COMMISSIONER OF CORRECTIVE SERVICES [2014] WASC 399

CORAM: BEECH J

HEARD: 23 OCTOBER 2014

DELIVERED : 10 NOVEMBER 2014

FILE NO/S: CIV 2208 of 2014

BETWEEN: ADAM MIKHAIL
Plaintiff
AND
COMMISSIONER OF CORRECTIVE SERVICES
Defendant

Catchwords:

Administrative law - Mandamus - Need for public duty - Prisoner seeking provision of computer - No public duty - Whether any jurisdictional error by decisionmaker - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Ms C J Thatcher

Solicitors:

Plaintiff: In person
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Barreto v McMullan [2014] WASCA 152
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51
James v Robinson (1963) 109 CLR 593
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Mikhail v The State of Western Australia [2012] WASCA 200
Re Cock; Ex parte Diano [2014] WASC 63
Re Corruption and Crime Commission; Ex parte Calabro [2012] WASC 355
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
BEECH J:

Introduction

The applicant is a sentenced prisoner. He seeks a writ of mandamus against the Commissioner of Corrective Services (the Commissioner), commanding the Commissioner to issue him with a computer.
For the reasons that follow, I would dismiss the application.

The facts

The applicant is a serving prisoner at Albany Regional Prison. He was convicted after trial of wilful murder. On 22 June 2011 he was sentenced to life imprisonment with a non‑parole period of 37 years.
He appealed against sentence. The Court of Appeal dismissed his appeal on 12 October 2012.[1]
[1] Mikhail v The State of Western Australia [2012] WASCA 200.
On or about 29 May 2014 Mr Mikhail applied to prison officers to be provided a computer for his exclusive use in his cell. In his letter[2] Mr Mikhail:
(a)stated that he currently had one case before a court and two cases pending requiring a computer to complete, identifying a High Court appeal, a District Court civil action and a further District or Supreme Court civil action. The District Court civil action had an identified action number, and so it is apparent that that is the action that was said to be before a court at the time the letter was written;
(b)stated that in order to successfully complete and participate in his cases he required a departmental issued computer for his cell;
(c)stated that he understood that Policy Directive 42 of the Department of Corrective Services allows for a departmental computer to be issued in order for the prisoner to defend himself in such a situation;
(d)stated that he was 'an appeal class' because he was preparing his appeal against conviction and/or severity of sentence; and
(e)set out his working commitments at Albany Regional Prison and the other reasons why he said he needed a computer in his cell.
[2] Affidavit of Adam Mikhail sworn 19 August 2014 Appendix 3.
By letter of 4 July 2014 the Director of Security Services wrote to Mr Mikhail.[3] The letter stated that the application had been assessed by the Security Services Directorate and declined as it did not fall within the eligibility criteria of Policy Directive 42. The letter also stated that Mr Mikhail had access to the legal computer at the Albany Regional Prison, located in the prison library and that access could be booked through the canteen officer.
[3] Affidavit of Adam Mikhail sworn 19 August 2014 Appendix 4.
By application filed 27 August 2014 Mr Mikhail applied for a writ of mandamus commanding the Department of Corrective Services to issue a departmental computer to the applicant in order to allow him to defend himself by way of appeal to the High Court. At the hearing on 23 October 2014, the name of the respondent was amended to the Commissioner.
The application states the grounds of the application as follows:
1.The applicant fits all the requirements and criteria according to the DCS PD 42 s 19 which governs the issue and use of departmental computers to a prisoner.
2.This represents an unconscionable perversion of the applicant's right to natural justice in equity.
3.If the applicant does not meet the scenario envisioned by the DCS in PD 42 s 19 then it is a sham and their decisions to refuse the applicant is unconscionable conduct in equity.
4.The letter from the Director of Security Services of 4 July 2014 has suggested the use of the legal computer which has recently been moved to the library. Albany Regional Prison has a current muster of 310 prisoners. In reality, there is only one computer for all these inmates, with no printer or any method of extracting information from the machine.
5.The affidavit attached from the applicant.
The orders sought by the applicant, as attached to his submissions are:
1.The Department of Corrective Services issues a computer immediately to the plaintiff for his sole use in possession in any prison, at all times.
2.The plaintiff keeps the computer in his possession for such duration and until such time as the plaintiff has exhausted all avenues of appeal to the High Court of Australia.
3.The plaintiff is given the means to print documents from the issued computer as needed by the plaintiff. Either by providing the plaintiff a printer and/or disc's and authorisation to print at any time.
4.The issued computer is provided to the plaintiff as a right not a privilege.

The disposition of the application

Mr Mikhail's claim for mandamus as framed has no prospect of succeeding. Mandamus compels the performance of a duty. It does not compel the exercise of a discretionary power in a particular way, at least unless the discretion could only possibly be exercised one way.[4]
[4] Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51, 80 ‑ 81 (Mason CJ); ReCorruption and Crime Commission; Ex parte Calabro [2012] WASC 355 [6].
Mr Mikhail's submissions appear to assert that s 73 of the Commonwealth Constitution required the Department of Corrective Services to provide him with a computer, in that without a computer it is practically impossible for Mr Mikhail to exercise his right to invoke the High Court's appellate jurisdiction. Any such contention is untenable. The Commonwealth Constitution does not create any duty on the executive government to provide any specific financial or other assistance to any particular citizen, nor does it give rise to any rights for any citizen in that regard.
Mr Mikhail's submission and the grounds of his application refer to natural justice and to unconscionable conduct in equity. Neither of these concepts has any potential application capable of sustaining a right to be provided with a computer.
More generally, Mr Mikhail has no right to be provided with a computer by the Department of Corrective Services. If he has any entitlement, it is to apply under the Policy Directive and to have his application considered in accordance with the law.
For these reasons, Mr Mikhail's claim as framed fails. It is wholly untenable. However, at the hearing Mr Mikhail also advanced a less ambitious claim, to the effect that the rejection decision made under a statutory rule was legally flawed, and so should be set aside, and Mr Mikhail's application for a computer reconsidered.
The Commissioner of Corrective Services has power under s 35(1) of the Prisons Act 1981 (WA), with the approval to the Minister, to make rules for the management, control and security of prisons generally or of a specified prison, and for the management, control and security of prisoners. Such rules may confer a discretionary authority on a person or class of person,[5] and may specify and regulate the privileges which may be extended to prisoners.[6]
[5] Section 35(3).
[6] Section 35(4).
The Commissioner submits that he has made a rule under s 35 of the Prisons Act in Policy Directive 42 - Prisoner Property Procedures.[7] In my view, that is not correct. Policy Directive 42 - Prisoner Property Procedures was not made with the approval of the Minister, does not purport to be a rule and, as its title suggests, is a policy, not a statutory rule.
[7] Respondent's submissions [13] ‑ [16].
Rules known as the Adult Custodial Rules have been made under s 35 of the Prisons Act. Until 21 January 2014, one of the rules, AC8, dealt with use of computers by prisoners. That rule was revoked on 21 January 2014.
Rule AC3 deals with privileges for prisoners. Clause 3.1 of AC3 provides that the superintendent may grant any privileges above any minimum entitlement as described in the paragraphs following. Paragraph (n) of cl 3.1 provides that:
The designated Superintendent may allow a prisoner to have in possession a personal computer during their sentence for approved legal, educational or recreational purposes as outlined in Adult Custodial Rule 8 and Policy Directive 2.
Both Adult Custodial Rule 8 and Policy Directive 2 are no longer in force. Section 19 of Policy Directive 42 ‑ Prisoner Property Procedures relates to computers.
As I have said, the Commissioner's submissions asserted that Policy Directive 42 - Prisoner Property Procedures was a statutory rule made under the Prisons Act. The hearing of the application proceeded on that basis. If the court formed a different view, and that difference prejudiced Mr Mikhail, procedural fairness would require that Mr Mikhail be given an opportunity to be heard on the point.
However, that is not necessary, because the application can be resolved on the basis of the following assumptions, favourable to Mr Mikhail, that are consistent in effect with the position adopted by the respondent at the hearing:
(1)the references in AC3 to the revoked AC8 and Policy Directive 2 should be read as reference to the substantive provision replacing those, namely s 19 of Policy Directive 42 - Prisoner Property Procedures;
(2)properly construed, AC3 should be characterised as a rule conferring a discretionary authority on superintendents or their delegates, and regulating prisoners' privileges, made under s 35(1) read with s 35(3) and s 35(4) of the Prisons Act, with such discretionary authority to be exercised by reference to Policy Directive 42 - Prisoner Property Procedures;
(3)AC3 is not an order issued by the superintendent to prison officers, under the broad power in s 36(3) to issue orders to prison officers and prisoners as are necessary for the good government, good order and security of the prison.
The balance of these reasons proceeds on these assumptions.
Section 19 of Policy Directive 42 relates to computers. Section 19.1.1 provides as follows:
Under exceptional circumstances, the Assistant Commissioner Custodial Operations (ACCO) may allow a prisoner to have in possession, a specially configured Department of Corrective Services (Department) laptop computer for the purpose of aiding in their legal defence where sufficient resources do not exist to otherwise permit this.
Section 19.2 governs the eligibility of prisoners to apply for a departmentally issued computer. It provides as follows:
19.2Eligibility
A prisoner may apply to the ACCO to have a departmentally issued computer in his/her cell, if the prisoner:
•Is a SENTENCED prisoner on APPEAL; or
•Is a REMAND prisoner who is remanded in custody, WITHOUT BAIL, awaiting trial; and
•Is representing him/herself in their pending court matters;
and
•Is able to provide reasons as to why the Prison Education and Legal Library facilities are insufficient for their needs
•Has no outstanding prison charges or Loss of Privileges
•Has no history of computer misuse while in custody.
In Barreto v McMullan[8] the Court of Appeal considered questions of the availability of judicial review in respect of decisions made by the superintendent of a prison. In that case, the primary judge had held that management decisions made by a superintendent were, subject to specific exceptions, not subject to judicial review. Buss JA held (Martin CJ and Mazza JA agreeing) that the question is whether, in light of the proper construction of the Prisons Act, decisions made by the superintendent were vitiated by jurisdictional error.[9] His Honour held that there were no jurisdictional facts that were preconditions to the enlivening of the power conferred by s 36(3).[10]
[8] Barreto v McMullan [2014] WASCA 152.
[9] Barreto v McMullan [150].
[10] Barreto v McMullan [164].
The respondent argues that:
(a)the decision in this case was similarly not an exercise of power conditional upon the existence of a jurisdictional fact; and
(b)accordingly, it cannot be argued that the decision was vitiated by jurisdictional error.
While I accept the first proposition, I do not accept the second. Jurisdictional error may arise for reasons other than the absence of a jurisdictional fact. One well known category of jurisdictional error arises where the decision‑maker misconstrues the relevant statute thereby misconceiving the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.[11]
[11] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [72] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [16].
So, if the decision rejecting Mr Mikhail's application was based on an erroneous construction of the Policy Directive, (on the assumptions in [21],) that would mean the decision could be set aside for jurisdictional error.
There is no evidence that Mr Mikhail has filed an application for special leave to appeal to the High Court against the dismissal of his appeal against sentence. The clear inference from the language of his letter of 29 May 2014 is that no such application has been filed.
The decision by letter of 4 July 2014 refusing Mr Mikhail's application stated to be on the ground that the applicant was not eligible under Policy Directive 42. In other words, the ground of refusal was that the applicant was not 'a sentenced prisoner on appeal'.
That invites attention to the proper construction of s 19.2 of the relevant rule. Is a prisoner a 'sentenced prisoner on appeal' only after an appeal has been instituted? Or is a prisoner who is preparing an appeal against sentence, but has not yet filed any papers, within the ambit of that category?
The decision‑maker adopted the first of these constructions, which I will refer to as the narrow construction. Mr Mikhail invites the second, broader construction.
Mr Mikhail submits that, in circumstances where the High Court requires an application for special leave to appeal to be typed,[12] the wider construction should be adopted, otherwise someone in his shoes would effectively be deprived of his right to seek special leave.
[12] See High Court Rules 2004 (Cth) r 1.08.1.
The consequences of competing constructions are relevant to the choice between them. But it is important to give appropriate weight to the text. Statutory interpretation, including interpretation of subordinate legislation, starts and finishes with the text.
I repeat the summary of legal principles relevant to statutory construction in ReCock; Ex parte Diano:[13]
In broad summary, the search is for the intention of Parliament expressed and embodied in the legislation. The starting point is the text of the statute. The text is the surest guide to legislative intention. The language of the statute should be interpreted taking into account its context, including any general purpose or policy of the relevant provisions that may be discerned. The consequences of an interpretation, and any perceived improbability of result, may be capable of assisting in choosing between constructional choices that are open on the language of the statute. The statute should be construed as a whole.
In Commissioner of Taxation v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ emphasised the centrality of the text in statutory construction:
'This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text [Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.'
Martin CJ recently made observations to like effect in Wilderness Society (WA) (Inc) v Minister for Environment.
A legislative purpose, discerned from the text and extrinsic material, assists in choosing between constructional choices that are open on the language of the statute; it cannot sustain a construction that is not available as a meaning of the language of the text.
The application of the rules of construction involves the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to rules of construction. (footnotes omitted)
[13] ReCock; Ex parte Diano [2014] WASC 63 [29] ‑ [33].
The purpose of the provision of a computer is expressed in s 19.1.1 to be 'for the purpose of aiding in their legal defence'. That purpose is advanced by the wider construction, in that preparation before the institution of an appeal is within the ambit of a prisoner's 'legal defence' in the context of s 19.1.1. This is a consideration favouring the wider construction.
However, in my opinion, textual considerations support the narrow construction and outweigh the support given to the wider construction by the considerations of purpose and consequences to which I have referred.
First, to my mind the ordinary meaning of the phrase 'sentenced prisoner on appeal', in particular the word 'on', favours reading it as referring only to prisoners who have instituted appeal proceedings. Before appeal proceedings are instituted the prisoner is not yet a prisoner who is 'on appeal'.
Secondly, this reading is substantially reinforced by the language of the additional requirement that the prisoner 'is representing him/herself in their pending matters'. The reference to 'pending' matters seems to me a strong indication in favour of the narrower construction. The ordinary meaning, and the ordinary legal meaning, of a pending matter is a matter that has been commenced and not completed.[14] In my view to characterise a proposed application that is being prepared but has not yet been instituted as a pending matter would involve a substantial straining of the words pending matter.
[14] James v Robinson (1963) 109 CLR 593, 615 (Windeyer J).
In the end, the textual considerations to which I have referred lead me to adopt the narrow construction, notwithstanding the countervailing considerations.
Consequently I am not satisfied that there was any error of construction in the decision to reject Mr Mikhail's application on the ground that he was not eligible. Nor do I consider there was any other jurisdictional error in that decision.
As I have said, the reasons from [23] ‑ [41] proceed on the basis of the assumptions in [21]. If those assumptions are not made and the position is contrary to those assumptions, Mr Mikhail's application would fail even if, contrary to my finding, there had been an error in construing the policy. That is because, if the true position is contrary to the assumptions in [21], the policy is not the source of the statutory power being exercised and its provisions would not control or confine the power being exercised. The power being exercised would either be the broad power to grant a privilege in the form of a computer or the broader power to manage the prison under s 36.

Conclusion

For these reasons, I would dismiss the application.