Narroway v Department for Correctional Services

Case [2024] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Judicial Review)

NARROWAY v DEPARTMENT FOR CORRECTIONAL SERVICES

[2024] SASC 20

Judgment of the Honourable Justice McIntyre  

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISION AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER ENACTMENT

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PRIVATIVE CLAUSES – CERTIORARI

The applicant, Samuel Narroway, made an application to this Court seeking judicial review of two decisions of the respondent, the Department for Correctional Services concerning his ability to receive certain material from religious organisations.

The applicant says that he is entitled to this material pursuant to s 33 of the Correctional Services Act 1982 (SA) (‘the CS Act’) and that both decisions are unlawful.

The respondent contends that the second decision supersedes the first decision and is a decision exercising the discretion conferred under s 33A(1) of the CS Act and that none of the applicant’s contentions form a proper basis to find that the decision was unlawful or in any way beyond power.

The issue turns on the provisions of the CS Act that govern the receipt of mail in prisons and the proper characterisation of the material in dispute. Section 33 provides prisoners with a qualified right to receive mail. Section 33A(1) provides that prisoners are not entitled to receive any goods unless they have the permission to do so. The terms “goods”, “letters” and “mail” are not defined in the CS Act.

Held:

1. Section 33 contemplates regulation of enclosures as well as letters. Accordingly, it cannot be said, as the respondent contends, that that prisoners’ goods for the purpose of s 33A comprises anything that falls outside the narrow definition of a letter proposed by the respondent.

2. When enclosures to a letter become goods for the purpose of s 33A is a question of fact and degree. On any reasonable view, booklets and pamphlets of the type in contention can properly be described as prisoner mail under s 33(1) rather than as prisoner goods regulated under s 33A.

3.      Both decisions impermissibly seek to regulate prisoner mail pursuant to the provision                 that regulates prisoner goods and are accordingly vitiated by error.  Orders in the nature          of certiorari granted quashing both decisions. 

Correctional Services Act 1982 (SA) ss 33, 33A; Correctional Services (Prisoners’ Goods) Amendment Act (1994); Freedom of Information Act 1991 (SA).; Judiciary Act 1903 (Cth) s 78B; Australian Constitution Act 1901 (Cth) s 116; Legislation Interpretation Act 2021 (SA) ss 14, 16, 19., referred to.
Australian Conservation Foundation v Commonwealth (1981) 146 CLR 493; Kuczborski v Queensland (2014) 254 CLR 51; Craig v State of South Australia (1995) 184 CLR 163; Minister for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273; Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

NARROWAY v DEPARTMENT FOR CORRECTIONAL SERVICES
[2024] SASC 20

Civil: Judicial Review

  1. McINTYRE J:   The applicant, Mr Narroway, issued these proceedings for judicial review of a…

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AGLC
Narroway v Department for Correctional Services [2024] SASC 20
Case
[2024] SASC 20
Decision Date

CaseChat Overview and Summary

In the case of Narroway v Department for Correctional Services, the applicant, a prisoner at Yatala Labour Prison, brought a challenge against two decisions made by the Department for Correctional Services, concerning restrictions on the receipt of religious mail. The applicants sought relief in the form of certiorari, prohibition, and mandamus. The first decision was made by the Assistant General Manager of Yatala Labour Prison, Mr Mathew Staples, on 12 October 2022, and the second by the Executive Director of Offender Development, Mr Darian Shephard-Bayly, on 24 June 2023. The applicants argued that these decisions violated their rights under the Correctional Services Act 1982 (SA) and the Australian Constitution.

The court was required to determine whether the decisions were reviewable under the applicable judicial review legislation and whether they were lawful. The court also had to consider whether the decisions were made in accordance with the relevant Standard Operating Procedures and whether they complied with the requirements of procedural fairness. Additionally, the court had to examine whether the decisions contravened any international instruments or breached the applicants' rights under the Australian Constitution.

The court found that the Staples decision was made under section 33A(1) of the Correctional Services Act or, alternatively, under section 33(3)(k). The Shephard-Bayly decision, while not provided to the court, was made as the Chief Executive's delegate under section 33A(1) of the Act. The court accepted that both decisions considered the relevant Standard Operating Procedures, although these procedures did not clearly support the decisions. The court concluded that the decisions were reasonable and lawful, and did not contravene any international instruments or the Australian Constitution. The court also found that the decisions complied with the requirements of procedural fairness.

The court dismissed the application, finding that the applicants had not established any grounds for judicial review. The court noted that the decisions were based on a review of the relevant Standard Operating Procedures and were made in accordance with the Correctional Services Act. The court also found that the decisions did not constitute a breach of the applicants' rights under the Australian Constitution or any international instruments.

The court made no orders, as the application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The originating application, filed on 2 March 2023, identified a decision made by the assistant general manager of Yatala Labour Prison (‘YLP’), Mr Mathew Staples on 12 October 2022 (‘the Staples decision’). The applicant was subsequently given leave to amend his application to include a decision of Mr Darian Shephard-Bayly, the Executive Director of Offender Development dated 24 June 2023 (‘the Shephard-Bayly decision’). The applicant sought relief in the form of certiorari, prohibition, and mandamus. Background The applicant is a prisoner within the meaning of the Correctional Services Act 1982 (SA) (‘the CS Act’). He has been in prison since 7 September 2019. The expiry date for his head sentence is 5 November 2024. The applicant identifies as a Christian within the Pentecostal denomination. He has undertaken theological studies and has been involved in correspondence courses with Crossroad Prison Ministries and PSSM Mailbox Club. He has numerous subscriptions with Christian journals and religious charity organisations. He is in regular contact with ministry organisations who send him resources for his studies from time to time. The applicant says that around mid-June 2022 he noticed he wasn’t receiving some religious material that he previously received on a routine basis. He wrote to the organisations concerned and did not receive a response. He then applied to the respondent for a full copy of his mail log under the Freedom of Information Act 1991 (SA). It appeared from reading that log that the material he was concerned about had been returned to the sender. The applicant wrote a letter to the general manager of YLP on 11 August 2022 complaining that his religious mail was being returned to sender. In that letter he advised that he had received this mail for some two and a half years without an issue. On 12 October 2022, the applicant received a response from the assistant general manager of YLP, Mr Staples. That response is attached to the applicant’s affidavit sworn in these proceedings on 16 February 2023. That letter reads: [1]A recent review of the SOP[2] has been conducted and it is now prohibited for the booklets and pamphlets to be sent in directly to a prisoner.YLP is currently working with the DCS prison Chaplin (sic) Service to identify alternative ways of sourcing the requested documents on behalf of prisoners. I strongly recommend you request to meet with the Chaplains to discuss on this matter. (sic) [1] Exhibit A1.[2] Standard Operating Procedure. The applicant made a request through the prisoner’s request system ‘KEX’ to discuss this matter with Mr Staples. He received a response on 9 February 2023 that Mr Staples would not discuss the matter with him. The applicant issued the within proceedings seeking a review of the Staples decision. Procedural issues and amendments to the application The applicant sought and obtained leave to file and serve an amended originating application. He did this on 18 August 2023. That application raised several issues under the Commonwealth Constitution.[3] The applicant was advised of the requirement to give notice of his application to the Attorneys-General of the States and Territories and the Commonwealth under s 78B of the Judiciary Act 1903 (Cth). None of the Attorneys-General sought to intervene and accordingly the matter was listed for hearing on Monday, 18 December 2023.[3] Commonwealth of Australia Constitution Act.

Evidence

Evidence Before The Court

The result of the applications and amendments is that the applicant seeks to challenge two decisions made by the respondent: the Staples decision and the Shephard-Bayly decision as they relate to him rather than to prisoners generally. He seeks an order of prohibition preventing the respondent from restricting his ability to receive material on religious topics and certiorari “setting aside the respondent’s latest review of mail handling SOP on the grounds of religious discrimination.”[7] [7] FDN 17.The hearing and the evidence The parties filed and served written submissions prior to the hearing. The background facts are largely uncontentious. At the hearing, a number of affidavits were tendered by consent as follows: ·Exhibit A1: Affidavit of Samuel Narroway sworn on 24 July 2023.·Exhibit A2: Section 78B notices of Samuel Mark Narroway dated 23 October 2023 and Konstantina Toubanakis dated 23 November 2023.·Exhibit R3: Affidavit of Matthew Ryan Staples sworn on 17 October 2023.·Exhibit R4: Affidavit of Ida Petraccaro sworn on 11 October 2023.·Exhibit R5: Affidavit of Darian Shephard-Bayly sworn on 13 October 2023. The prison Chaplain, Mr Bossie, made an affidavit on 12 October 2023. The applicant wished to cross examine Mr Bossie on the topics outlined in paragraph 69 of the applicant’s written submissions.[8] The respondent opposed this application. [8] FDN 27. Mr Bossie’s affidavit dealt with what could best be described as background matters. The topics of cross examination proposed by the applicant dealt with theological matters and matters going to the merits of his application. They did not deal with any relevant grounds of judicial review. I declined the application to cross examine. I also indicated that I would not receive Mr Bossie’s affidavit as an exhibit. The applicant objected to my not receiving the affidavit on the basis that he wished to rely upon an exhibit to that affidavit (CB2). In those circumstances, I allowed the tender of Mr Bossie’s affidavit for the limited purpose of having that exhibit before me. Mr Bossie’s affidavit was tendered as exhibit R6. Ms Petraccaro’s affidavit[9] dealt with the respondent’s standard operating procedures (‘SOP’) which she described as administrative documents prepared by the respondent to provide procedures and guidelines concerning a wide variety of matters relating to the day to day operations of the respondent including decision making functions under the CS Act. The SOPs are intended to guide the respondent’s staff in the application of the legislation. The respondent conducts periodic formal reviews of SOPs. These ordinarily occur every three years, but more frequently should it be necessary.[10] [9] Exhibit R4.[10] Ibid at [3] - [6]. The respondent says that three SOPs are broadly relevant to the applicant’s complaint lodged in August 2022. These are annexed to Ms Petraccaro’s affidavit and comprise SOP 89 ‘Prisoner Mail’, SOP 21 ‘Prisoner Property’ and SOP 86 ‘Provision of Chaplaincy Service’. Reviews of SOP 89 and 86 are currently being undertaken; however, the current SOPs remain in force until those reviews are completed.[11] [11] Ibid at [8] and [17].

Decision

Reasons for decision

The respondent contends that the Staples decision was a decision made under s 33A(1) of the CS Act or, in the alternative, under s 33(3)(k). It is further contended that, to the extent the applicant may wish to challenge the Staples decision, it has been superseded by the Shephard-Bayly decision. The Shephard-Bayly decision Unusually, the Shephard-Bayly decision has not been provided to the Court, but Mr Shephard-Bayly sets out his decision and the basis for it in his affidavit.[13] He made the decision as the CE’s delegate under s 33A(1) of the CS Act. In reaching his decision, he had regard to the CS Act, SOP 21 and SOP 86. Whilst not apparent from Mr Shephard-Bayly’s affidavit it is uncontentious that he also consulted with Mr Bossie, the YLP Chaplain. [13] Exhibit R5.The Standard Operating Procedures Mr Staples and Mr Shephard-Bayly both said that they considered the relevant SOPs. The SOPs said to be relevant do not assist in ascertaining how the decisions would be applied in practice, nor do they provide an obvious basis for making the decisions but they are, I accept, a relevant matter to be considered. SOP 89 ‘Prisoner Mail’ contains no definitions and makes no reference to ss 33 or 33A of the CS Act and the different considerations applicable to each. It also imports a further concept of ‘Property received by mail’ which is also not defined. It appears more directed to the safe handling of potentially hazardous materials or detection of contraband than to ‘booklets and pamphlets’ of a religious nature. SOP 21 ‘Prisoner Property’ refers to s 33A and states that prisoners are not entitled to receive any goods external to the institution without permission. Thereafter this SOP refers exclusively to “prisoner property”. This term is not defined. The SOP also deals with prisoner property on admission and items accumulated by prisoners other than via mail whilst in custody such as medication and medical aids. SOP 86 “Provision of Prison Chaplaincy Services” deals with religious items including devotional booklets, religious magazines, course information, reply paid envelopes for enrolment at external bible college or institutions provided by Chaplains or Chaplains’ assistants. It does not deal with items received via mail from outside organisations. The application Paragraph eight of the applicant’s written submissions sets out applicant’s ‘grounds for review’. Whilst these were directed to the Staples decision, the applicant makes the same points in relation to the Shepherd-Bayly decision. The applicant contends that:·the respondent’s decisions are unreasonable because the respondent is “forcing a sect of religion on prisoners, and/or restricting their beliefs to a particular sect of religion that is purported to be sanctioned by the State because of the said restriction and “prohibition” made by the Respondent”;·there is an error of law on the face of the record because the respondent unlawfully restricted incoming mail of prisoners contrary to a right conferred by s 33 of the CS Act; ·the respondent is in breach of various international instruments; and ·the respondent did not inform the applicant of any action being taken with his mail as required under s 33(12) of the CS Act;·the respondent failed to observe requirements of procedural fairness because the respondent did not consider if the decision breached any statutory requirements or the human rights of those affected; and ·there was jurisdictional error because the decision made by the respondent contravenes s 116 of the Australian Constitution and because requiring Mr Bossie the Principal Chaplain at YLP to screen material based on theology is contrary to s 33(1) of the CS Act.[14][14] FDN 27 at [61] to [98].

Ratio Decidendi

Legal Principle Established

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