Millington v Peach (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Millington v Peach (No 2)
Citation:	[2025] ACTSC 21
Hearing Dates:	10 – 12, 17 July, 2, 16 November 2023, 17 March 2025
Decision Date:	07 February 2025
Orders Made:	17 March 2025
Before:	McWilliam J
Decision:	Declarations made of breaches of Corrections Management Act 2007 (ACT), failure to afford procedural fairness, and failure to give proper consideration to plaintiff’s human rights.
Catchwords:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – Judicial review of decisions made by ACT Justice and Community Safety Directorate – plaintiff held on remand awaiting trial at the time decisions were made – where plaintiff transferred from prison in ACT to Goulburn Correctional Centre – whether decision-making process accorded with procedures required under Corrections Management Act 2007 (ACT) – whether denial of procedural fairness HUMAN RIGHTS – whether conduct of authorities at AMC breached plaintiff’s human rights under ss 10, 11, 18, 19, 21, 22, and 24 of the Human Rights Act 2004 (ACT) – consequences of failure to review decision to transfer plaintiff to a different correctional facility
Legislation Cited:	Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5, 10, 17(1)(c), Sch 1 item 4 Corrections Management Act2007 (ACT) ss 7, 8, 10, 17, 88, 90, 91, 92, 94, 96, 97, 192, 195, 201(1), 202(1), 223, Pt 9.2, Ch 11 Crimes (Sentence Administration) Act 2005 (ACT) ss 6, 7, 8, 10, 26, 27 Human Rights Act 2004 (ACT) ss 9, 10, 11, 18, 19, 21, 22, 23, 24, 25, 27A, 40C(6) Legislation Act 2001 (ACT) Dictionary
Cases Cited:	Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 Deng v Australian Capital Territory (No 3) [2022] ACTSC 262 Deng v Australian Capital Territory [2024] ACTCA 10 Disorganized Developments Pty Ltd v State of South Australia [2023] HCA 22; 97 ALJR 575 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Islam v Director General, Justice and Community Safety Directorate [2021] ACTSC 33 Islam v Director-General, Justice and Community Safety Directorate [2022] ACTSC 124; 369 FLR 417 Islam v Director-General, Justice and Community Safety Directorate [2024] ACTCA 22 Kioa v West (1985) 159 CLR 550 Mental Health Australia Ltd v Registrar, ACT Long Service Leave Authority [2019] ACTSC 188; 344 FLR 413 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 MZAPC v Minister for Immigration [2021] HCA 17; 273 CLR 506 Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 Neilsen v Attorney-General [2001] 3 NZLR 433 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 R v Millington (No 2) [2022] ACTSC 9 Re application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429
Texts cited:	Corrections Management (Relocating a Detainee to a NSW Correction Centre) Policy 2022 (NI2022-140) Explanatory Statement to the Human Rights Bill 2003 (ACT) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Parties:	Christopher Millington ( Plaintiff) Jon Peach ( First Defendant) Director-General, ACT Justice and Community Safety Directorate (Second Defendant)
Representation:	Counsel Self-represented ( Plaintiff) M Hassall ( Defendants)
Solicitors Self-represented ( Plaintiff) ACT Government Solicitor ( Defendants)
File Number:	SC 23 of 2022

McWILLIAM J:

1․This proceeding concerns whether a decision made by the Commissioner of ACT Corrections Services in December 2020 to transfer a detainee held on remand at the Alexander Maconochie Centre (AMC) to Goulburn Correctional Centre (GCC) was made in breach of an obligation to accord the detainee procedural fairness, and whether the detainee’s transfer to GCC was separately in breach of the plaintiff’s human rights under the Human Rights Act 2004 (ACT) (HR Act).

The parties

2․The plaintiff is Mr Christopher Millington. At the time of his transfer from the AMC to the GCC, he had been admitted to the AMC and held on remand since 21 February 2020, awaiting trial for offences relating to a home invasion. He was ultimately sentenced for those offences on 1 February 2022: R v Millington (No 2) [2022] ACTSC 9.
3․The first defendant was the Commissioner of ACT Corrective Services (Commissioner) at the relevant time (December 2020).
4․The second defendant is named as the Justice and Community Safety Directorate, the directorate responsible for the management and operations of the AMC, including any decisions and conduct of employees at the AMC. It was not at all clear to me how a directorate had a separate legal personality. Section 223 of the Corrections Management Act 2007 (ACT) (CM Act) provides that any civil liability for acts exercised in the performance of functions under that statute attaches to the Territory. No formal point was taken about the improper naming of the Directorate as the second defendant, and it appears that documents on the file have at various times referred to the second defendant as the Director-General, Justice and Community Safety Directorate. It is appropriate to order that the second defendant be renamed to reflect the informal position adopted by the parties.

The genesis of the proceeding

5․On 10-11 November 2020, there was a riot at the AMC which included the barricading of an accommodation unit and the starting of a fire (the Riot). Rightly or wrongly, the plaintiff was perceived to have been involved in that riot. He had a lengthy argument with a corrections officer shortly before others in the same accommodation unit took matters into their own hands.
6․The plaintiff was segregated for his perceived role in influencing or sparking the Riot on 11 November 2020.
7․On 19 November 2020, the segregation order was revoked, following a lack of evidence that the plaintiff was actually involved in any acts of destruction or violence. On the same day, the Commissioner requested a list of detainees recommended for transfer to NSW, based on their suspected involvement in the Riot. The plaintiff’s name was not on the list that was created.
8․On 24 November 2020, the plaintiff had an altercation with a different corrections officer, as a result of which he was relocated to the Management Unit the following day (25 November). He remained there until 2 December 2020.
9․On 26 November 2020, there was a report that the plaintiff had threatened to hurt the corrections officer involved in the altercation two days earlier.
10․As a result of the threat, on 2 December 2020 (the day the plaintiff was released from the Management Unit) the AMC Senior Director, Operations proposed that the plaintiff be added to a list of detainees that had been compiled in contemplation of a possible transfer of those detainees to NSW.
11․On 9 December 2020, the plaintiff was returned to segregation (by the completion of an Initial Segregation Form). By that stage, the report of the threat made by the plaintiff had been misinterpreted or misreported as the plaintiff having threatened to kill the corrections officer and his family when released from the AMC. It was noted at that time that the plaintiff was to be transferred to NSW.
12․Upon being segregated and learning that he was being transferred to NSW, the plaintiff did two things. The first thing he did was to tick the box “Detainee has refused to sign” on the Initial Segregation Form. It was accepted that this should have initiated the review. To the extent that any further conduct was required, the second thing he did was to complete the Detainee Request Form on 9 December 2020, requesting a review of the decision to transfer him to the GCC by either “the GM and/or external adjudicator”. That was consistent with the information contained on the segregation form as to the procedure to be followed:
You are advised that if you would like the General Manager Custodial Operations or an external adjudicator to review this segregation direction, you need to request this within seven (7) days from today. You can make this request by completing a Detainee Request Form.
13․Although the words used by the plaintiff were more general, referring to the transfer decision, there was no suggestion that the segregation decision did not form part of that review request, particularly as the formal transfer decision had yet to be made and what had been notified to the plaintiff was the segregation decision. The evidence was that the plaintiff’s disagreement with the underlying basis of each decision was at the heart of the request for review. However, no review ever occurred.
14․On 10 December 2020, the Commissioner formally approved a decision to transfer the plaintiff, among others, to a NSW Correctional Centre (the Transfer Decision).
15․The plaintiff was transferred the following day, on 11 December 2020, to GCC. Upon his arrival, he was placed in segregation, apparently for the good order and discipline of the Correctional Centre, following a recommendation made by personnel at the GCC, based on “his alleged involvement in a major incident”.
16․Recalling here that at the time, he was held only on remand, the plaintiff then remained in segregation at the GCC from 11 December 2020 until 18 February 2021 – a period of over two months.
17․On 18 February 2021, the plaintiff was released from segregation but remained in the general population of detainees at the GCC until 4 October 2022, apart from a period on 6 April and 12-22 April 2021, when he was transferred to the AMC for the conduct of his criminal trial.
18․In relation to the Riot, the plaintiff was charged much later (on 19 April 2023) with an offence of arson and alternatively damaging property by joint commission. Those charges were outstanding at the date of the trial. They may now have resolved. The outcome of the charge is immaterial to the legal issues for determination in this proceeding.

The application for determination

19․The plaintiff commenced proceedings on 24 January 2022, essentially complaining about the Transfer Decision being a breach of his human rights under the HR Act, specifically ss 11 (protection of the family and children), 19(1) and 19(3) (humane treatment when deprived of liberty), and 22 (rights in criminal proceedings, namely s 22(2)(b) to have adequate time and facilities to prepare a defence and to communicate with lawyers or advisors chosen by him). Although the application was brought outside the 1-year time limit prescribed, an order extending the time in which to bring such an application was made on 7 July 2023.
20․In August 2022, the list of human rights said to have been breached was extended to include the right to life (s 9), the right to protection from torture and cruel, inhuman or degrading treatment (s 10), the right to liberty and security of person (s 18), the right to a fair trial (s 21), the right to compensation for wrongful conviction (s 23), the right not to be tried or punished more than once (s 24), the right to protection from retrospective criminal laws (s 25) and the right to education (s 27A).
21․The plaintiff also stated that he believed there was a cause for breach of the CM Act, although he indicated that this was bound up with the HR Act breaches.
22․The plaintiff has subsequently refined the rights he pursues as having been breached to ss 10, 11, 18, 19, 21, 22, and 24 of the HR Act.
23․During the hearing, it emerged that the plaintiff was not just complaining about the process by which the Transfer Decision was made, but the lack of any review of that decision, despite his repeated requests to review or appeal the Transfer Decision to various authorities. The plaintiff was granted leave to amend his originating application (on 17 July 2023), including leave to extend the time to make an application under s 10 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act). Following that amendment, the plaintiff sought the following additional relief:
(a)A declaration pursuant to s 17(1)(c) of the ADJR Act that a breach of the rules of natural justice occurred in relation to the Transfer Decision, the breach being a failure to afford procedural fairness to the plaintiff in respect of:
(i)The allegations that he was involved in the incident at the AMC on 10-11 November 2020 and that he made a threat regarding a corrections officer; and
(ii)The decision to segregate him on 9 December 2020.

24․The grounds relied upon were evidently ss 5(1)(a) and (b) of the ADJR Act, namely:
(a)that a breach of the rules of natural justice happened in relation to the making of the decision;
(b)that procedures that were required by law to be observed in relation to the making of the decision were not observed;

The Court’s power to grant the relief sought

25․In relation to the complaint of denial of procedural fairness, s 17(1)(c) of the ADJR Act permits the court to make an order declaring the rights of the parties in relation to any matter to which the decision relates.
26․In relation to the statutory action seeking relief under the HR Act, the court may grant the relief it considers appropriate, except damages: s 40C(6) of the HR Act.

Issues for determination

27․The evidence led on the claim was extensive and there were many factual controversies. However, for the issues that have emerged as being material to the resolution of the plaintiff’s application, the facts were either conceded or clearly established on the documents before the court. Accordingly, it has been sufficient to approach this application by distilling the arguments into two broad issues:
(a)Whether the Transfer Decision was made in breach of the obligation to afford the plaintiff procedural fairness, including the preliminary issues of fairness in respect of allegations made against him in respect of the Riot and the threat regarding a corrections officer, and the decision to segregate him on 9 December 2020 (Issue 1); and
(b)Whether the Transfer Decision and lack of subsequent review breached any of the human rights relied upon by the plaintiff (Issue 2).

Issue 1: Was the plaintiff denied procedural fairness in respect of the Transfer Decision?

28․The plaintiff’s complaint is that he was segregated and transferred to the GCC without any review of the segregation decision, which was a denial of procedural fairness (a legal error) entitling him to a declaration.

The court’s task on judicial review

29․On an application under the ADJR Act, the court’s task is to review the relevant decision for legal error but not to descend into the merits of the decision itself. The court examines the process by which the particular decision under challenge came to be made, such as whether the decision-maker complied with the applicable statute and correctly applied the law. It does not consider the underlying merit of the decision, which remains a matter for the repository of the power alone to decide: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35–36.
30․This is important to explain here, because much of the plaintiff’s arguments and evidence before the court were directed to the underlying basis for the Transfer Decision, or the lack of any proper basis. That kind of evidence may have a bearing on the separate claims for breaches of human rights, but it is not relevant to the judicial review aspect of the complaint. A court reviewing a complaint of a denial of procedural fairness is concerned with procedures rather than with outcomes, and processes rather than conclusions: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 (WZARH) at [55]; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25]. That is why the reasons below scrutinise the processes that were required to be followed, which led to the Transfer Decision (governed here by the legislative framework discussed below).

Applicable principles

31․Procedural fairness or natural justice is a “flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa v West (1985) 159 CLR 550 (Kioa) at 585 per Mason J. The variable content of procedural fairness has been described as a “chameleon-like” quality, the requirements of which depend on the circumstances of the case, the nature of the inquiry, the rules under which the decision-maker is acting and the subject matter with which the exercise of the power is concerned: Kioa at 612-613 per Brennan J and the cases there-cited.
32․In Disorganized Developments Pty Ltd v State of South Australia [2023] HCA 22; 97 ALJR 575, the majority of the High Court outlined the following general principles of procedural fairness at [32]-[33] (footnotes omitted):
32. The existence of a duty to afford procedural fairness is a question of statutory interpretation. In Twist v Randwick Municipal Council, Barwick CJ described the common law rule that a statutory authority having power to affect the rights of a person is bound to hear her or him before exercising the power as "both fundamental and universal", although subject to legislative displacement. Barwick CJ explained that, if it appears that the legislature "has not addressed itself" to the question of natural justice, the court will approach the task of statutory interpretation "with a presumption that the legislature does not intend to deny natural justice to the citizen", and "may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice".
33. Since Twist, the law has evolved to include an established and "strong" common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness. Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates "unless clearly displaced by the particular statutory scheme".

33․It is helpful to explain some of the general principles that have relevance to the present decision under challenge (that is, this is not an exhaustive list):
(a)The nature and content of any procedural fairness obligations depends upon the statutory power involved: Kioa at 610.
(b)Where the exercise of the statutory power is capable of adversely affecting legally recognised rights or interests, it is presumed that the power carries with it an obligation to afford procedural fairness: CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [367] per Gageler J, citing Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97].

(c)Such a presumption can only be displaced by “a clear, contrary legislative intention”: WZARH at [30] per Kiefel, Bell and Keane JJ; Kioa at 609. See also Mental Health Authority Australia Ltd v Registrar, ACT Long Service Leave Authority [2019] ACTSC 188; 344 FLR 413 at [10].
(d)The Court considers “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: WZARH at [30].
(e)If there was a breach of any obligation to afford procedural fairness, the Court must consider the consequences of that breach, again by reference to the statutory framework applicable to the decision, and common law principles. In order for relief to be granted to the person affected, it must be demonstrated that they have suffered a practical injustice. As stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 (Lam) at 14; [37]:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

34․I will return to practical injustice and materiality below, after first considering whether the denial of procedural fairness alleged is established.

The statutory framework here

35․The framework that follows is directed to considering what the legislation requires when a remandee is segregated and is to be transferred to another correctional facility.
36․Chapter 2 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act) contains the following object:
6 Main object of Act
The main object of this Act is to ensure, as far as practicable, that sentences are given effect in accordance with this Act and the Corrections Management Act 2007.

37․Section 7 refers to the treatment of sentenced offenders. Section 8 refers to the treatment of remandees and applied to the plaintiff at the relevant time. It is in the following terms (emphasis added):
8 Treatment of remandees
(1)Functions under this Act in relation to a remandee must be exercised, as far as practicable, as follows:
(a)to recognise and respect that the remandee must be presumed innocent of the offence for which the remandee is remanded;
(b)to respect and protect the remandee’s human rights;
(c)to ensure the remandee’s decent, humane and just treatment;
(d)to preclude torture or cruel, inhuman or degrading treatment.

(2) Also, functions under this Act in relation to a remandee’s detention must be exercised, as far as practicable, as follows:
(a)to recognise and respect that the detention is not imposed as punishment of the remandee;
(b)to ensure the remandee is not subject to punishment only because of the conditions of detention;
(c)to ensure the remandee’s conditions in detention comply with the requirements under the Corrections Management Act 2007.

(3)Subsections (1) (a) and (2) (a) do not apply if the remandee has been convicted or found guilty of the offence for which the remandee is remanded.
Examples
1 a convicted person remanded in custody for sentencing
2 a paroled offender remanded in custody under s 210 (Custody of offender during board hearing adjournment)

(4)This section does not apply to the remandee if the remandee is an offender under a sentence of imprisonment in relation to another offence.

38․Section 26 of the CSA Act is the section under which the Transfer Decision was made. It provides:
26 Full-time detention in ACT or NSW

(1)The director‑general must arrange for a full-time detainee to be kept in full-time detention at—
(a)an ACT correctional centre; or
(b)a NSW correctional centre.

(2)For this section, the director‑general may, in writing, direct that a full‑time detainee—
(a)be detained at the ACT correctional centre stated in the direction; or
(b)be removed to a NSW correctional centre stated in the direction.

39․It is convenient to interpolate here that the defendants accepted a decision made under s 26 of the CSA Act was a reviewable decision under the ADJR Act, as it was not a decision listed in item 4 of Schedule 1 to the ADJR Act (with that schedule listing decisions to which the ADJR Act does not apply).
40․Section 27 of the CSA Act permits guidelines to be made in relation to the allocation of full-time detainees to correctional centres. At the time the Transfer Decision was made, no guidelines were in place. Following the commencement of these proceedings, there are now guidelines in place. I will return to that matter at the conclusion of these reasons.
41․Also forming part of the statutory framework or context in which the requirements of procedural fairness are assessed is the CM Act.
42․The main objects of the CM Act are set out in s 7. Section 8 further states:
8 Management of correctional services

Correctional services must be managed so as to achieve the main objects of this Act, particularly by—
(a)ensuring that public safety is the paramount consideration in decision-making about the management of detainees; and
(b)ensuring respect for the humanity of everyone involved in correctional services, including detainees, corrections officers and other people who work at or visit correctional centres; and
(c)ensuring behaviour by corrections officers that recognises and respects the inherent dignity of detainees as individuals; and
(d)ensuring that harm suffered by victims, and their need for protection, are considered appropriately in decision-making about the management of detainees.

43․Section 10 of the CM Act contains similar statements to s 8 of the CSA Act as to how remandees are to be treated, including recognition that the detention is not imposed as punishment of the remandee.

44․The obligations of the CM Act speak in terms of obligations upon the Director-General. However, s 17 of the CM Act permits delegation of any of the Director-General’s obligations under the Act to a corrections officer. There was no issue here about any lack of delegated authority by any of the decision-makers involved, the key person being the Commissioner.

45․The critical part that governs the procedures applicable in the circumstances of the plaintiff is Part 9.2 of the CM Act (including ss 88-98), with the heading “Segregation”. That term is defined in s 88 of the CM Act:

88 Meaning of segregation
In this Act:
"segregation", of a detainee—
(a)means the restriction or denial of the detainee's opportunity—
(i) to go into, or be in, a particular part of a correctional centre; or
(ii) to associate with other detainees; and
(b)includes separate confinement.

46․A detainee (whether a remandee or a sentenced offender) can be segregated for either safety and security (s 90), protective custody (s 91) or health (s 92) reasons. The reason applying to the plaintiff here was safety and security. Section 90 of the CM Act relevantly provides (emphasis added):

90 Segregation – safety and security
(1)The director-general may direct that a detainee be segregated from other detainees if the director-general believes, on reasonable grounds, that the segregation is necessary or prudent to protect—
(a)the safety of anyone else at a correctional centre; or
(b)security or good order at a correctional centre.

(2)When making a direction under this section, the director-general must also have regard to any relevant, known cultural consideration and the likely impact of segregation on the health and wellbeing of the detainee.
(3)The director-general must give the detainee prompt notice of the direction, why it was given, when it takes effect and the provisions for its duration and review under this part.
(4)The director-general must revoke the direction if the director-general believes, on reasonable grounds, that the protection mentioned in subsection (1) is no longer necessary or prudent.
(5)The director-general—
(a)may review the direction at any time, on the director-general's own initiative or on request by the detainee; and
(b)if the detainee is to be transferred to another correctional centre for longer than 1 day—must review the direction before the transfer; and
(c)must review the direction at least once every 21 days while it remains in force.

(6)After reviewing the direction, the director-general may—
(a)confirm the direction; or
(b)make a further direction under subsection (1); or
(c)revoke the direction under subsection (4).

(7)To remove any doubt, the director-general may make more than 1 further direction under this section.
(8)Subject to this section and section 94 (Segregated detainees removed to NSW), a direction ends at the end of—
(a)28 days after the day it is given; or
(b)if subsection (6) (b) applies—90 days after the day the further direction, or latest further direction, is given.

47․The emphasised parts of the section are to draw attention to what must happen in terms of review. The detainee must be given notice of the opportunity to have the segregation decision reviewed, and if the detainee is to be transferred to another corrections centre for more than a day, the segregation direction must be reviewed before the transfer. He does not need to request a review.
48․In other words, before sending a segregated detainee to a prison in NSW for more than 1 day, a delegate needed to review whether the segregation remained prudent or necessary.
49․That has significance because of what follows in s 94:
94Segregated detainees removed to NSW
(1)This section applies if both of the following apply to a detainee:
(a)a direction under the Crimes (Sentence Administration) Act 2005, section 26 (Full-time detention in ACT or NSW) that the detainee be removed to a NSW correctional centre;
(b)a direction (the "ACT direction")—
(i) under this part; or
(ii) under chapter 10 (Discipline) for investigative segregation.

(2)Despite the detainee's removal to a NSW correctional centre, the ACT direction—
(a)continues to apply in relation to the detainee, with any necessary changes, and any change prescribed by regulation; and
(b)subject to this part, ends 3 days after the day the detainee is taken into custody at the NSW correctional centre.

50․That is, the detainee continues to remain in segregation for another 3 days after they are transferred. It is useful to just keep in mind (for the human rights argument that is considered next) that if a detainee is segregated in the AMC, the segregation decision must be reviewed at least once every 21 days. However, if the detainee is transferred to NSW, the requirement for any review ceases, because the segregation direction itself expires 3 days after transfer.
51․Separately, a detainee can also request a review of a segregation direction under s 96 of the CM Act. The application must be made within 7 days after the detainee is given notice of the direction.
52․If a detainee does apply for review, s 97 prescribes the procedures. An adjudicator may conduct an inquiry to review the direction or refuse to review the direction. The procedures applying to disciplinary inquiries, set out in Chapter 11 of the CM Act, apply, with any changes prescribed by regulation, in relation to the inquiry as if it were an inquiry under that chapter. The direction may be confirmed, amended or set aside and notice must be given of the outcome promptly. If the adjudicator refuses to review the direction, the notice must include the reasons for the refusal.
53․Importantly here, s 192 (located in Chapter 11) expressly provides, among other things, that the rules of natural justice apply. It is in the following terms:
192 Nature of disciplinary inquiries
(1)To remove any doubt, an inquiry is an administrative process.
(2)At an inquiry—
(a)the rules of natural justice apply; and
(b)the laws of evidence do not apply; and
(c)evidence must not be given on oath or by affidavit; and
(d)the question whether a detainee has committed a disciplinary breach must be decided on the balance of probabilities.

54․The laws of evidence do not apply, which is consistent with the obligation that the proceeding is to be conducted with as little formality and technicality, and as quickly, as the requirements of the CM Act and a proper consideration of the direction allow: s 195(1) of the CM Act.
55․The giving of evidence is not excluded, although the form is not to be by oath or affidavit.
56․Further, an accused (the detainee) is entitled to be present at a hearing: s 201(1) of the CM Act. The detainee is also entitled to be heard, to examine and cross-examine witnesses, and to make submissions for the inquiry: s 202(1) of the CM Act.

Were the procedural requirements of the CM Act followed here?

57․The short answer to that question is no. The defendants did not contend otherwise. There was no review of the kind required by s 90(5)(b) of the CM Act. The detainee ticked the box indicating that he did not agree to sign the form and separately requested a review of the decision. Section 96 of the CM Act was invoked. No review then occurred under s 97, certainly not one of a kind that would satisfy the requirements of Chapter 11 of the CM Act.
58․The detainee also sought to get the Official Visitor involved on 9 December 2020, but his calls were diverted to voicemail. An email alerting the authorities to that fact was then sent. Nothing happened in response to it.
59․It has therefore been established that there was a clear failure to follow the review procedures required under the CM Act in relation to the segregation decision.
60․That has a consequence for the Transfer Decision itself, which was formally made on 10 December 2020, with the detainee transferred the next day. There was no urgency for the transfer to occur in respect of the plaintiff on that particular day. The Riot had occurred a month earlier. The plaintiff had been released from segregation after the Riot. The conduct which led to the further segregation (the altercation with the corrections officer) combined with a revised view about the plaintiff’s involvement in the Riot, which in turn founded the plaintiff’s inclusion on the list of people to be transferred, was the very thing the detainee sought to have reviewed as part of the segregation decision. There was nothing to suggest that the AMC authorities could not delay the transfer of the plaintiff by even one day to permit the proper review processes to be carried out.
61․The Commissioner prepared a detailed affidavit as to all the matters he took into account when making the decision to transfer the plaintiff. He was cross-examined. It is unnecessary to make any findings about that evidence because in none of it does the Commissioner refer to being made aware of the plaintiff’s repeated requests for review of the matters founding the segregation decision (which overlapped in large part with the matters that resulted in the plaintiff’s inclusion on the list for the Transfer Decision).
62․The Commissioner said in the witness box that he was not aware that the review of the segregation decision prior to transfer had not occurred in accordance with the requirements of the CM Act. He did not see the plaintiff’s request for a review and he indicated that he would have expected a review to be conducted “lower down”. He later explained what he meant by that answer, stating that a general manager and a deputy commissioner had those delegated review powers. The documentary records and the evidence of the Commissioner established that there was a disconnect between his assumption as decision-maker and the reality with regard to a remandee. In that way, the earlier procedural failures infected the decision-making process, which had a significant consequence for the plaintiff.
63․Accordingly, a denial of procedural fairness has been established. The question of relief is dealt with separately below.

Issue 2: Was the transfer decision made in breach of the plaintiff’s human rights?

64․The plaintiff named a number of rights which he said were breached by his transfer to the GCC, whether as a segregated prisoner or at all. The two that are determinative of this aspect of the dispute are ss 19 and 21 of the HR Act and I have therefore addressed those before dealing collectively with the other complaints. However, before dealing with each specific right, it is helpful to first explain (most particularly for the benefit of a self-represented litigant) the Court’s general approach in interpreting and applying the HR Act.

General principles in interpreting human rights

65․The rights set out in the HR Act are drawn primarily from the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR): Explanatory Statement to the Human Rights Bill 2003 (ACT) at 3; Re application for Bail by Islam [2010] ACTSC 147; 4 ACTLR 235 at [18] per Penfold J. That has a consequence for how they should be interpreted.
66․In Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 (Islam), I explained the interpretive tools the Court uses at [77]-[79]:
77. The protection of human rights crosses borders, with the human rights set out in the ICCPR having been implemented and considered in a number of other jurisdictions. The task of interpreting and applying the Human Rights Act may therefore be assisted by reference to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision, with due caution exercised for the particular statutory and constitutional framework in the jurisdiction and any variations in the words used of the sections under consideration: Momcilovic v R [2011] HCA 34; 245 CLR 1 (Momcilovic) at [18] per French CJ; at [146] per Gummow J.
78. This is reflected in s 31 of the Human Rights Act, whichexpressly provides that international law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.
79. Further, each right is to be construed in “the broadest possible way”: see Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 (Certain Children) at [143] and the authorities there-cited.

Humane treatment when deprived of liberty

67․Section 19 of the HR Act is in the following terms (emphasis added):
19 Humane treatment when deprived of liberty
(1)Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2)An accused person must be segregated from convicted people, except in exceptional circumstances.
(3)An accused person must be treated in a way that is appropriate for a person who has not been convicted.

68․The authorities dealing with s 19(1) have been discussed by Loukas-Karlsson J in Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 (Davidson) at [198]-[206]. Her Honour referred at [198] to Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 at [177], where the equivalent provision in New Zealand was described as protecting against “conduct which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.

69․Referring to the analysis in Davidson, Kennett J stated in Islam v Director-General Justice and Community Safety Directorate [2022] ACTSC 124; 369 FLR 417 (Islam 2022) at [74]-[75]:
74. These statements indicate that, where the two rights overlap, that recognised in s 19(1) imposes higher standards on the relevant public authority and thus a lower bar for a person claiming infringement. While the starting point for s 19(1) is that a person is lawfully in detention, and thus necessarily subject to a degree of hardship or constraint, it requires that person not to be subjected to additional hardship or constraint (Castles at [108]). Although the two rights are not to be conflated (as noted in Davidson at [198]), the area of overlap is in practice substantial. For example, general conditions of detention as well as specific incidents of ill-treatment are addressed by s 19(1) (Davidson at [199] and the cases cited there) and are also clearly within the scope of s 10(1)(b); and the standard of humanity and respect for inherent dignity plainly addresses the same basic concerns as the prohibition on cruel, inhuman or degrading treatment. It may be only the deprivation of liberty itself that could potentially be said to amount to cruel, inhuman or degrading treatment or punishment without simultaneously infringing the right in s 19(1). The subject matter of the present case—a decision to withdraw “privileges” from Mr Islam for a defined period while he was in lawful detention—is, subject to meeting the relevant thresholds of seriousness, clearly within the subject matter of both provisions. I will therefore consider s 19(1) first on the basis that, if the conduct here does not infringe that provision, it will also not infringe s 10(1)(b).
75. Two further points should be made about s 19(1). First, the reference to being treated “with humanity” and “with respect for the inherent dignity of the human person” indicates that what is precluded is treatment that ignores the humanity of a detainee or undermines their inherent dignity. That means that minor slights and irritations, or even the imposition of more significant detriments that have some legitimate purpose, do not infringe the right. Some minimum level of severity is required: Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; 4 ACTLR 161, [91], [94] (Refshauge J). Secondly, because detention (i.e. deprivation of liberty) is the starting point, detention per se will not constitute an infringement. Nor, in my view, will circumstances or particular acts that go hand-in-hand with being detained, such as being subject to direction and discipline by the detaining authority. Such direction or discipline would need to be excessively strict, or imposed without proper regard for the humanity or dignity of the detainee, in order to infringe s 19(1).

70․See also Islam v Director-General, Justice and Community Safety Directorate [2024] ACTCA 22 (Islam CA) at [74], citing Islam at [99] in addition to the authorities referred to by Kennett J. I respectfully agree with his Honour’s comments. The focus for his Honour was on the first two limbs of s 19 and applying the same reasoning here, I am not persuaded a breach of s 19(1) has been made out. However, the focus here is also upon the fact that the person who was being segregated without review and transferred with a recommendation that segregation continue (a recommendation that may not have been made if the plaintiff had been afforded the review) was not at that time a sentenced prisoner. Counsel for the defendants referred to the fact that there are now guidelines in place which prevent remandees from being transferred to NSW unless there are “exceptional circumstances”: [4.6] of the Corrections Management (Relocating a Detainee to a NSW Correction Centre) Policy 2022 (NI2022-140). While the existence of such guidelines now does not determine the standard of assessment by which treatment of a remandee is assessed for the purposes of s 19(3), it does indicate that remandees are in a different position from sentenced offenders. Accepting that there must still be a level of severity before the threshold is crossed and a breach of the human right is found, here, there was a severe consequence. The plaintiff was held in segregation for two months.
71․The Commissioner gave evidence as to the impact of extended segregation, stating that the longer the degree of segregation, the greater the degree of oversight that must be taken, to ensure that the segregation was just, and that there was an appropriate reason for maintaining the segregation.
72․Here, the lack of a review about the plaintiff’s segregation prior to being transferred had a significant impact for the plaintiff as a remandee when he was transferred, and in my view, in the combination of circumstances that arose it was severe enough to fall short of what was “appropriate treatment” for a person who had not yet been convicted. Thus, the plaintiff has established a breach of s 19(3).

Fair Trial

73․Section 21 of the HR Act is in the following terms (emphasis added):
21 Fair trial
(1)Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2)However, the press and public may be excluded from all or part of a trial—
(a)to protect morals, public order or national security in a democratic society; or
(b)if the interest of the private lives of the parties require the exclusion; or
(c)if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.

(3)But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

74․Tribunal is defined in the Dictionary of the Legislation Act 2001 (ACT) and it includes any entity that is authorised to hear, receive and examine evidence. An entity is also defined to include a person occupying a position. That definition is broad enough to extend to the present circumstances.
75․The principles specific to this right were set out in Islam at [101]-[110] relevantly as follows:
101. Section 21 is the source of a positive right to a fair trial: R v Griffin [2007] ACTCA 6 at [4]. The right has been confirmed as applying to civil trials as well as to criminal proceedings: see Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9 at [38] and the cases there-cited.
102. The right to a fair and public hearing refers to a procedurally fair process. Again, what is required to ensure compliance with s 21 of the Human Rights Act is flexible, depending on the circumstances of the case. Different measures may be necessary to give practical effect to the right to a fair trial: Roberts v Harkness [2018] VSCA 215; 57 VR 334 at [46]-[47], cited in Marijancevic v Page [2020] VSC 68 at [21].
103. In cases where a person is a prison detainee, particular regard must be taken of the need for enforcement of security in a custodial environment: see Commissioner of Corrective Services v Liristis [2018] NSWCA 143; 98 NSWLR 113 (Liristis)at [104]-[107]; Knight v Sellman & Ors [2020] VSC 320 at [205]. This is reflected in the highly prescriptive scheme provided in the Corrections Act.

…
107. It has already been found that the plaintiff was denied procedural fairness. He did not have the opportunity to have his rights and obligations recognised by law decided by an independent tribunal after a procedurally fair hearing. However, that is not determinative of the question whether there was a contravention of s 21(1) of the Human Rights Act. As with the discussion in relation to the right to protection from degrading treatment, where not every finding of degrading conduct will constitute a contravention of the statute, not every breach of procedural fairness will result in a finding that a public authority has contravened a person’s statutory human rights.
108. Similarly, although the defendant has conceded that the Corrections Act was breached, not every breach of the provisions creating the disciplinary scheme under the Corrections Act will translate into a finding that there has been a breach of s 21(1) of the Human Rights Act. That may be because the obligations created by the Corrections Act are more onerous than circumstances that would be considered to satisfy a ‘fair trial’ under the Human Rights Act, or it may be that the breaches conceded were found to be trivial, or it may be any other combination of reasons.
109. A degree of flexibility also arises in part because of the inherent nature of the right itself, in that what constitutes ‘a fair trial’ cannot be catalogued. In Jago v District Court (NSW) (1989) 168 CLR 23 at 57, when dealing with fairness in the context of a criminal trial, Deane J said:
The identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.
110. What is required is an evaluative assessment of all the circumstances to see whether the conduct amounts to a contravention of the right as described is s 21(1) of the Human Rights Act. That results in a flexible standard and the Court’s task is to consider all the relevant factors in giving content to that standard.

76․Here, a number of factors combine to result in a finding that there was a contravention of s 21(1). First, the plaintiff was in a position of vulnerability, by virtue of the fact that he had been deprived of liberty. It is uncontroversial that a consequence of the deprivation of liberty is that rights and freedoms which are enjoyed by other citizens are necessarily curtailed: Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796; 51 VR 473 at [175]. Thus, the plaintiff’s opportunity to receive a procedurally fair hearing very much depended on proper compliance with the statutory scheme.
77․Second, the statutory scheme itself gives content to what constitutes a fair trial. In the present case, it also informs the content of the standard by which the relevant human right is assessed. The Legislative Assembly has indicated that the statutory scheme itself is what constitutes affording a right to a fair trial that complies with s 21(1): see Islam at [113].
78․Third, and again, as was the case in Islam at [114], the nature of the subject matter of the hearing was significant to whether the threshold was crossed. What was at stake for the plaintiff was the potential for a further deprivation of liberty by way of separate confinement within the AMC and elsewhere. The further deprivation of liberty of a person already lawfully confined is a serious matter, which leans the evaluative assessment towards a finding that the human right has been contravened. Although what was established was a procedural breach, it was not a trivial breach.
79․Further, the point at which the breach of the CM Act occurred is relevant. There had been no review hearing afforded at all. The entire statutory process miscarried in relation to the segregation decision.
80․Finally, the impact of the breach was significant as I have earlier stated. It had a material consequence for what occurred at the GCC in terms of a lengthy segregation. Appreciating that ongoing segregation at the GCC was a matter for the GCC, the starting point for any consideration was what they had been told as to why the plaintiff was subject to a segregation direction in the first place, a direction that had never been reviewed.
81․In all those circumstances, I find that there was a breach of s 21 of the HR Act.

The right to protection from cruel, inhuman or degrading treatment

82․The authorities dealing with the right contained in s 10 of the HR Act have been dealt with in Islam at [82]-[97]. That was a case where a similar complaint was made. It concerned a sentenced prisoner who had been repeatedly segregated without being afforded him the opportunity for review of the decision in accordance with the procedures set out in Chapter 11 of the CM Act. Although the passage is lengthy, for ease of reference, [82]-[97] are as follows (footnotes omitted):
82. Schedule 1 to the Human Rights Act confirms that the relevant article of the ICCPR which has been implemented is art 7, the words of which are as follows:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment...
83. Those words are also to be found in the Universal Declaration of Human Rights (the Universal Declaration) (art 5) andthe European Convention on Human Rights (the ECHR) (art 3). Again, there is no definition of the phrase in either the Covenant, the Universal Declaration or the ECHR.
84. Similarly, the words of the section as extracted above are almost identical to the language found in s 10(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)(the Victorian Charter), save that the opening words of that section commence: ‘a person must not be’. The phrase is not defined in the Victorian Charter either, but s 32 mirrors the express provision in s 31 of the Human Rights Act, in that international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision of the Victorian Charter.
85. As a result, there is a substantial body of jurisprudence dealing with this particular human right, … Many of the principles below and the international jurisprudence giving rise to them were collected and discussed by Garde J in Certain Children at [162]-[168]. I would respectfully adopt those principles as applying to the Human Rights Act in the Territory.
86. Conduct is said to be ‘degrading’ when it is such as to arouse feelings of fear, anguish and inferiority in a victim, capable of humiliating and debasing a person: Kalashnikov v Russia [2002] ECHR 596; (2003) 36 EHRR 34 (Kalashnikov) at [95]. The right is concerned with the deliberate imposition of severe suffering: Certain Children at [163].
87. Not every finding that conduct was cruel, inhuman or degrading will amount to a contravention of the Human Rights Act. What is required is an assessment of the severity of the conduct. The ill-treatment must attain a minimum level of severity before it will be found to contravene the Human Rights Act: Kalashnikov at [95], cited in Islam v Director-General Justice and Community Safety Directorate(No 3) [2016] ACTSC 27 at [158] per Mossop AsJ (as his Honour then was).
88. In Kalashnikov at [102], the European Court of Human Rights found that conditions of detention in Russia amounted to degrading treatment. The Court took into account, in particular, the severely overcrowded and insanitary environment and its detrimental effect on the applicant’s health and well-being, combined with the length of period during which the applicant was detained (a period of 4 years and 10 months).
89. The assessment undertaken by the Court as to whether a particular threshold of severity has been met is a relative assessment, in that it depends on all the circumstances of the case. Without limitation, the type of considerations that may inform the assessment include the “duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim”: Ireland v The United Kingdom (1978) 25 Eur Court HR (Ser A) [162], cited in Knight v General Manager, HM Prison Barwon [2017] VSC 135(Knight)at [25]; Novoselov v Russia (European Court of Human Rights, Application No 66460/01, 2 June 2005)(Novoselov)at [39].
90. Other factors a court may take into account include: the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it; the context in which the ill-treatment was inflicted (such as an atmosphere of heightened tension and emotions); and whether the victim was in a vulnerable situation: Nicolae Virgiliu Tănase v. Romania [2019] ECHR 491(Tănase) at [121]. Although the context is important, a victim’s behaviour is not usually relevant of itself: Novoselov at [38].
91. The minimum level of severity usually involves actual bodily injury or intense physical or mental suffering; although treatment that humiliates or debases an individual and is capable of breaking an individual’s moral and physical resistance may also suffice: Tănase at [118].
92. A lack of intention to humiliate or debase a person may be a factor to be taken into account, albeit any lack of intention will not be determinative in ruling out a breach of the human right: Kalashnikov at [101]. The case of Kalashnikov was recently considered in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at 269 (at [19]), although that was a decision where degrading treatment was expressly defined in s 5(1) of the Migration Act 1958 (Cth), with the definition including intention as an element.
93. The principle that a lack of intention is relevant but not determinative has been expressly referred to in this Court: see Eastman v Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 4 at [94], citing Cenbauer v Croatia [2006] ECHR 73786/01 (2007) 44 EHRR 49 at [43]-[44].
94. Conduct that is otherwise legitimate treatment or punishment does not contravene the right, even though there may be a degree of inevitable humiliation connected with the treatment: Wainwright v United Kingdom (2007) 44 EHRR 40 (Wainwright)at [41]; discussed in Knight at [25]. Examples of legitimate treatment that does not contravene the right might be the lawful deprivation of liberty and the consequent loss of privacy, or the conducting of a strip search.
95. Before treatment will be found to be in breach of the human right in question, the suffering and humiliation involved must go beyond that connected with a given form of legitimate treatment or punishment: Novoselov at [38]. However, even when official conduct does go beyond legitimate treatment, and does not accord with ‘rigorous adherence to procedures and all due respect to [a prisoner’s] human dignity’ (Wainwright at [44]), that may not necessarily amount to conduct that is ‘degrading’.
96. Similarly, official conduct which is excessive or disproportionate also does not necessarily contravene the right: see Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146 at [697] and the examples there-cited, which included the excessive use of pepper spray by police or handcuffing a person for a court appearance.
97. Given the facts under consideration, specific reference should be made to the fact that the segregation of a prisoner from the prison community does not in itself constitute a form of inhuman treatment. Prolonged solitary confinement is undesirable, but regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned: see Certain Children at [167] and the authority there-cited.

83․Applying those principles to the facts involving the present plaintiff, I have accepted that the plaintiff was subjected to segregation which did not accord with the rigorous adherence to the procedures set out in the CM Act. That statute may perhaps be taken to reflect the gold standard for respect for a detainee’s human dignity, and such respect was not accorded to the plaintiff. Further, the treatment (including the recommendation to the GCC as to ongoing segregation) imposed a disproportionate burden on a remandee, as has been discussed above. I have found the confinement without review was unjust and procedurally unfair.

84․The complicating factor here, though, is that once 3 days had passed following the plaintiff’s transfer to the GCC, the ongoing segregation was a matter dealt with by the GCC and not under the responsibility of the defendants. The evidence did not establish a deliberate intention to humiliate or debase the plaintiff. It did have a mental effect on the prisoner, but again, it is difficult to attribute that entirely to the defendants as opposed to the ongoing segregation imposed by the GCC once he was subject to the procedures of that facility. Overall, the conduct does not cross the threshold of severity so as to constitute a separate breach of s 10(1)(b) of the HR Act.

Remaining asserted breaches – ss 11, 18, 22 and 24 of the HR Act

85․The remaining rights ultimately propounded may be addressed relatively briefly. The material parts of the other sections relied upon by the plaintiff are:
(a)Section 11 – the family is the natural and basic group unit of society and is entitled to be protected by society.
(b)Section 18 – everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained. No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
(c)Section 22 – everyone charged with a criminal offence is entitled to have adequate time and facilities to prepare their defence and to communicate with lawyers or advisors chosen by them.
(d)Section 24 – No-one may be tried or punished again for an offence for which they have been finally convicted or acquitted in accordance with law.

86․In relation to the complaint made under s 11 of the HR Act, the evidence established that the plaintiff was able to eventually directly communicate with his family members, although initially not for a number of weeks. The plaintiff reminded the court of the complete restrictions placed upon interstate travel during the Covid pandemic. This would not have been a problem had the plaintiff remained at the AMC, but connection with family became prohibitive because of the Transfer Decision. Applying the principles discussing severity above, having regard to the length of time and that there was some contact available, albeit late and by telephone, the evidence does not establish a separate breach of s 11 of the HR Act. However, that loss of connection by a remandee has been taken into account as part of the consideration under s 19 of the HR Act above.
87․Section 18 of the HR Act deals with arbitrary deprivation of liberty. Detention will be arbitrary if it is capricious, unreasoned, without reasonable cause, made without reference to an adequate determining principle, or without following proper procedures established: Neilsen v Attorney-General [2001] 3 NZLR 433 (Neilson) at 434, cited in Deng v Australian Capital Territory [2024] ACTCA 10 (Deng) at [63] referring to the primary judgment in Deng v Australian Capital Territory (No 3) [2022] ACTSC 262 at [168].
88․In Deng the Court of Appeal went on to confirm the concept of arbitrariness as extending beyond that which was unlawful (a lawful detention which was nevertheless arbitrary), referring to the following New Zealand authorities (at [64]) which had been employed as descriptions of the concept of arbitrariness by the primary judge in that case:
(a)Neilsen v Attorney-General [2001] 3 NZLR 433 at 434: “capricious, unreasoned, without reasonable cause ... made without reference to an adequate determining principle, or without following proper procedures established”.
(b)Manga v Attorney-General [2000] 2 NZLR 65 at 71: “all unlawful detentions are arbitrary; and lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability or proportionality”.
(c)Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101 at 112-113: “arbitrariness is not to be equated with ‘against the law’ but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability”.

89․The Court of Appeal in Deng stated at [65]:
We interpolate that reliance upon those authorities was consistent with Australian authorities referred to in this court: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at [143]-[146]; Victoria Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 at [199]; Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 at [228]-[231]; Thompson v Minogue [2021] VSCA 358; 67 VR 301 at [55].
90․While the plaintiff was further deprived of his liberty by virtue of the segregation, and the further segregation was not in accordance with the procedures established by law, the circumstances were more due to administrative failings for review of the initial segregation decision as opposed to demonstrating bad faith or arbitrary deprivation. There was a reasoned basis provided for segregation on 9 December 2020. It was this:
Detainee Millington has made threats to kill an officer and upon his release kill his family. Having been implicated in participating the AU-N riot also it has been determined that he will now be transferred to New South Wales. Detainee Millington cannot be allowed to create an environment where staff cannot go or where to do so compromises them.
91․If that were all well-founded, such a basis may very well have founded segregation as a proportionate response. However, it transpired in this proceeding that this was a misrepresentation of the threat and even any kind of threat was not established to have been made, although there was certainly a further altercation with the relevant corrections officer and the threat was perceived to have been made. All of the underlying bases for the segregation decision on 9 December 2020 would have been investigated had a review been afforded to the plaintiff, which is why I have found that the plaintiff’s treatment was unjust and breached the right to a fair trial, rather than the segregation itself being arbitrary.
92․As to s 22 of the HR Act, the plaintiff’s access to lawyers and ability to prepare to defend the charges against him was undoubtedly hampered by the fact that he was in segregation in a different state. I accept that he did not have access to a lawyer for several weeks upon being transferred to the GCC. However, he did belatedly receive an opportunity to take advice and give instructions, and he was transferred back to the AMC for the duration of the trial. In those circumstances, the difficulty at times in speaking with lawyers and preparing was not of a level of severity that would constitute a breach of s 22 of the HR Act.
93․In relation to s 24 of the HR Act, this section deals with principles of double jeopardy for criminal offences. It has no application to a case where a segregation direction is revoked and then a second segregation direction made based on further information, even if that further information was ultimately equally unfounded.

Remedies – Practical injustice and materiality and the question of declaratory relief

94․The plaintiff has sought declarations of a denial of procedural fairness and a breach of the human rights to the extent that those breaches have been established.
95․The defendants argued that the plaintiff had suffered no practical injustice, arguing that the Commissioner’s evidence was that if he had known there had been no review of the segregation decision, he would still have made the same decision as that effected by the Transfer Decision. The defendants further submitted that the plaintiff had no right to make representations in relation to the Transfer Decision. The plaintiff’s loss of opportunity to have the segregation decision reviewed was “insignificant, so far as the Transfer Decision is concerned.”
96․The description of practical injustice in Lam has more recently been reframed, in the context of jurisdictional error, to speak of “materiality” in cases such as Hossainv Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30] and [72] and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45], where it was held that materiality will be established if the failures to provide procedural fairness deprived the plaintiff of a realistic possibility of a different outcome.
97․This was confirmed in MZAPC v Minister for Immigration [2021] HCA 17; 273 CLR 506, where the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [2]-[3] (footnote omitted):
2. Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
3. The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited.

98․The majority later stated at [32] (emphasis added, footnotes omitted):
... The principle [of materiality] accommodates determination of the limits of decision-making authority conferred by statute to the reality that '[d]ecision-making is a function of the real world' by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no 'practical injustice'will deprive a decision of statutory force. ...
99․Subsequently in Nathanson v Minister for Home Affairs [2022] HCA 26; 267 CLR 80 (Nathanson) at [30], the plurality (Kiefel CJ, Keane and Gleeson JJ) again referred to the fact that the court should not “attribute to the legislation the impractical intention that an error in process, which cannot have affected the outcome of the process, requires that the process be repeated”.
100․What must be shown, then, is a realistic possibility of a different outcome had the breach of procedural fairness not occurred, in order that procedural fairness found jurisdictional error.
101․In Nathanson,the plurality further stated that in cases where a party is denied a reasonable opportunity to present their case, a party does not have to demonstrate how that party might have taken advantage of that lost opportunity. The plurality explained the correct inquiry in respect of materiality at [32]-[33] (emphasis added, footnotes omitted):
32. As explained in MZAPC, the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made". This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition".
33. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

102․On an application for judicial review under the ADJR Act,the plaintiff here is only required to establish an error of law, and not that the error was one going to the jurisdiction of the decision-maker. However, where there has been a failure to follow review procedures established by the CM Act, such a failure has been found to have constituted jurisdictional error: see Islam 2022 at [55]-[56], affirmed on appeal: Islam CA. The court has a discretion as to what relief is appropriate if a denial of procedural fairness is established and the above jurisprudence informs that discretion.
103․I have already found that the failure to comply with the review procedures set out in the CM Act constituted a denial of procedural fairness. Contrary to the submissions of the defendants, I do not accept that no practical injustice was suffered by the plaintiff in respect of the Transfer Decision. First, and similar to the reasoning process undertaken by Kennett J in Islam 2022 at [49]-[56], the legislative framework evinces an intention that breach of the review mechanisms for a segregation decision is a material breach. Second, s 90(5)(b) of the CM Act makes it clear that a pre-condition to a transfer of a segregated detainee is review of that segregation. The question is not whether the Commissioner would still have made the Transfer Decision had he known that the requirements of that section had not been completed. The question is whether a review of the segregation decision could have produced a different outcome, which in turn could have altered the consequences of any subsequent transfer decision – most critically for the plaintiff, whether he was transferred as a segregated prisoner. Third, the plaintiff on review would have had the opportunity to address the case and possibly discover what was uncovered in the present proceeding as to a mistake about any threat. It may be that a different officer conducting the inquiry might have taken a different view of both the threat and the plaintiff’s involvement in the Riot (noting that a different view had in fact been taken by other officers following the first segregation direction which was revoked). It may have been that a different officer would have been more concerned about the fact that the detainee was in fact on remand, which may have given some pause for thought as to whether what was about to occur was “appropriate treatment” for a remandee. For these reasons, I consider that the breach was material and that practical injustice was suffered by the plaintiff in respect of the Transfer Decision.
104․In Islam 2022 at [57]-[70], Kennett J gave detailed consideration to the principles applying to the discretion whether to make a declaration. It is sufficient to rely on those principles without repeating them here. I consider a declaration is necessary as the plaintiff does not appear to have any other remedy, let alone a more appropriate one. The Transfer Decision is long overtaken by other events but there remains a strong public interest in the observance of requirements of procedural fairness in the exercise of powers under the CM Act and CSA Act, legislation that deals with those who are most vulnerable to the abuse of such powers. As such, the public interest is in defining and publicising the type of conduct that constitutes a contravention: see Islam 2022 at [64], cited in Zurich Australian Insurance Limited v CIMIC Group Limited & Ors [2024] NSWCA 229 at [588]). I consider it appropriate to grant declaratory relief in respect of the ADJR Act claim as well as in relation to the HR Act claim.
105․However, I will give the parties the opportunity to be heard as to the precise form of the declarations to be made, whether any part of these reasons requires suppression or non-publication orders, and costs.
106․Finally, it would be remiss of me not to publicly record that the resolution of the issues in dispute between the parties was significantly assisted by the legal representatives for the defendants, including the personal efforts of counsel for the defendants, Mr Marcus Hassall. While protecting and advocating their clients’ interests, they provided assistance to the court that went beyond ordinary model litigant obligations such as making concessions where appropriate to do so. It extended to drafting assistance by recording the issues that had been raised by the plaintiff, a self-represented litigant, so that they were properly before the court. Mr Hassall’s conduct was in the finest traditions of the bar and was much appreciated in refining the arguments above.

Orders

107․For the above reasons, the following orders are made:
(1)The name of the second defendant is amended to the Director-General, Justice and Community Safety Directorate.
(2)The parties are directed to bring in short minutes of order to give effect to these reasons.

Addendum

108․Following a further hearing on 17 March 2025, the following final orders are made:
(1)Pursuant to s 17(1)(c) of the Administrative Decision (Judicial Review) Act 1989 (ACT), the Court declares:
(a)in respect of the decision of a delegate of the second defendant, made on 9 December 2020 pursuant to s 90 of the Corrections Management Act 2007 (ACT) (Corrections Management Act), to segregate the plaintiff (Segregation Decision), the second defendant failed to observe procedures required by law, in that:
(i) contrary to s 90(5)(b) of the Corrections Management Act, the Segregation Decision was not reviewed prior to the plaintiff being transferred to another correctional centre; and
(ii) contrary to s 97 of the Corrections Management Act, in circumstances where the plaintiff applied for a review of the Segregation Decision, an adjudicator failed to consider whether to conduct an inquiry to review that Decision; and

(b)in respect of the decision of the first defendant, made on 10 December 2020 pursuant to s 26(2)(b) of the Crimes (Sentence Administration) Act 2004 (ACT), to transfer the plaintiff to the Goulburn Correctional Centre (Transfer Decision), the first and second defendants failed to provide the plaintiff with procedural fairness in relation to the making of that Decision.

(2)Pursuant to s 40C(6) of the Human Rights Act 2004 (ACT) (Human Rights Act), the Court declares, in connection with the making of the Segregation Decision and the Transfer Decision, that the first and second defendants respectively failed to give proper consideration to the following relevant human rights of the plaintiff:
(a)the plaintiff’s right, referred to in subs 19(3) of the Human Rights Act, to be treated in a way that is appropriate for a person who had not been convicted; and
(b)the plaintiff’s right, in s 21(1) of the Human Rights Act, to have rights and obligations recognised by law decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(3)No order as to costs.

I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date:

[2025] ACTSC 21

07 February 2025