Narroway v Department for Correctional Services

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

McINTYRE J: The applicant, Mr Narroway, issued these proceedings for judicial review of a decision of the respondent, the Department for Correctional Services, concerning his ability to receive certain religious materials.
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.
Some negotiations took place between the parties. These did not resolve the matter. During the course of those negotiations however, a further decision was made by Mr Darian Shephard-Bayly as the Chief Executive’s (‘CE’) delegate, on the 24 June 2023.[4] The Shephard-Bayly decision permitted the applicant to receive goods from seven specified religious organisations under s 33A of the CS Act but refused permission to receive goods from two organisations: PSSM Mailbox Club and Creflo Dollar Ministries. Whilst the applicant filed an amended application on the 27 July 2023, he did not challenge the Shephard-Bayly decision. The respondent contended that the Staples decision had been superseded by the Shephard-Bayly decision. In the hearing, it became apparent that the applicant, who is not legally represented, understood that he was not allowed to refer to the Shephard-Bayly decision because he thought it formed part of without prejudice negotiations. On being advised that this was not the case, he sought leave to amend his application to include that decision and, there being no opposition, that order was made.
[4] Exhibit R5.
The respondent contended that the applicant lacked standing to seek remedies that purport to relate to the broader practices of the respondent with respect to other individuals, other prisoners or even to the broader community. The applicant accepted that this was correct during the hearing. This was an appropriate concession for the applicant to make. Plainly, he has standing to seek remedies by way of judicial review only insofar in they relate to a decision in which he has a special interest above that of a mere intellectual or emotional concern and one that has a direct impact upon his legal rights or obligations.[5] The applicant sought leave to amend his application to delete reference to ‘against prisoners’ to ‘against the applicant’ to make the application and orders sought specific to him. That application was not opposed and leave to amend was granted.
[5] Australian Conservation Foundation v Commonwealth 1980 146 CLR 493 at [526]; Kuczborski v Queensland [2014] 254 CLR 51 at [175] – [176].
The respondent’s primary contention is that the applicant has failed to establish any ground of review of any justiciable decision. In the alternative the respondent submitted that the relief sought cannot be granted for the reasons set out in the respondent’s written submissions.[6] Initially the applicant sought three orders: a writ of certiorari, a writ of prohibition and a writ of mandamus. This position was altered by the applicant during the course of submissions in response to the respondent’s written submissions. The applicant said he would not press his request for a writ of mandamus. The applicant further said that he wished to amend his application for a writ of prohibition in response to the respondent’s submission that the proposed relief was expressed in impermissibly vague and general terms seeking to prevent the respondent from “further religious discrimination against prisoners in custody”. The applicant said that he wished to narrow that application down to address his ability to receive material on religious topics.
[6] FDN 30 at [44] – [47].
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].
The affidavits of Mr Staples and Mr Shephard-Bayly deal with the decisions that are the subject of this application.
The Staples Decision
As indicated above, the applicant seeks, amongst other things, a writ of certiorari setting aside ‘the respondent’s latest review of mail handling SOP’. The Staples decision is not clearly expressed and the applicant’s interpretation of it is not unreasonable. Mr Staples explains his decision in his affidavit.[12] He says that when he received the applicant’s complaint, he considered the application of the relevant SOPs including SOP 89 and SOP 86 in order to prepare his response. He went on to say that:
In that letter I refer to “a recent review”. I refer to the process of review outlined in paragraphs 3 to 6 of the affidavit of Ida Petraccaro affirmed on 11 October 2023. My reference to “review” in my letter is not a reference to any review as that outlined in that affidavit, but rather a review in the sense the terms and effect of the relevant SOPs were reviewed, read and considered as part of my response.
[12] Exhibit R3.
The applicant conceded that there was a potential that Mr Staples had misused his words and that the SOP may not have changed. The applicant maintained that, even if all Mr Staples did was read and consider the relevant SOP, the Staples decision was incorrect as a matter of law for the reasons set out in his written and oral submissions. He maintained his application for relief in relation to the decision insofar as it affects his ability to receive religious mail.
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].
In addition to these matters the applicant raises a number of complaints and contentions regarding the respondent’s general practices concerning prisoner mail that contains religious content, processes related to him between July 2022 to August 2022,[15] and various contentions about the SOPs and their application.[16]
[15] Ibid at [32] to [44].
[16] Ibid at [45] to [60].
Judicial review focusses on the process by which an administrative decision is made and articulated. It is not an appellate procedure enabling a review of the decision or substitution of the decision. The issue of a prerogative writ of certiorari only enables the quashing of the decision upon one or more established grounds including jurisdictional error, procedural fairness, fraud and error of law on the face of the record.[17]
[17] Craig v State of South Australia (1995) 184 CLR 163.

The respondent submitted that many of the contentions of the applicant speak to broader practises of the respondent but are not directed at particular decisions amenable to challenge by way of judicial review. I agree. To the extent that applicant complains of the respondent’s conduct prior to the Staples decision these are not contentions made with respect to any administrative decision amenable to judicial review. Only decisions that are administrative in nature and that are capable of affecting the applicant’s rights, interests and legitimate expectations are amenable to review. An inability to receive mail to which he is entitled does affect the applicant’s rights, interests, and expectations. Accordingly, it is my view that both the Staples and Shephard-Bayly decisions (‘the decisions’) are properly amenable to judicial review but that the other matters raised by the applicant are not.
In relation to the complaint that the decisions are unreasonable and that there was jurisdictional error due to a breach of s 116 of the Constitution the respondent submitted, and I agree, that the applicant’s contention that s 116 of the Constitution serves as a broad measure of religious freedom is misconceived.[18] Section 116 is a limitation on Commonwealth legislative and executive power. It does not limit or qualify the executive or legislative power of the State of South Australia. There can be no “breach” of s 116 by any decision of the respondent. Further, I reject the applicant’s contention that the respondent is forcing particular religious views on prisoners. There is nothing in the decisions or the material generally, to support that contention.
[18] FDN 27 at [70] – [78].
I also accept the respondent’s contention that the applicant’s reliance upon ratification of various international instruments named in his submissions is misconceived. The mere act of ratifying a treaty does not incorporate it into domestic law.[19] Reference to treaties in legislation of other jurisdictions does not have any effect upon the proper interpretation of the CS Act. Failure to consider human rights cannot be a basis of challenging decisions under that Act.
[19] Minister for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273 at [286] - [287].
The applicant contends that there is an error of law on the face of the record concerning the application of s 33 of the CS Act and a breach of procedural fairness because the respondent did not consider if the decisions breached “any statutory requirements”.
Mr Staples does not identify the section of the CS Act he was proceeding under. The respondent contends that the Staples decision was made under s 33A(1) of the CS Act or, in the alternative, under s 33(3)(k). The respondent further contends that the Shephard-Bayly decision supersedes the Staples decision.
The respondent submits that the Shephard-Bayly decision is a decision exercising the discretion conferred under s 33A(1) and that the discretion is broad and unfettered. There is no statutory requirement that the decision maker has any particular qualifications. It is said that the applicant’s submissions are largely directed to the underlying merits of the decision and appear to be founded on the premise that prisoners are entitled to any and all religious material and goods that they request. It is said that on the plain reading of s 33A(1) that premise must be rejected. The respondent concluded by submitting that none of the applicant’s contentions form a proper basis to find that the Shephard-Bayly decision was unlawful or in any way beyond power.
Discussion
It is necessary to consider the decisions in the context of the CS Act. Section 33 of the CS Act regulates the receipt of prisoner mail and relevantly provides as follows:[20]
[20] Correctional Services Act 1982 (SA) s 33.
33—Prisoners' mail
(1)     Subject to this section—
(a)     prisoners are entitled to receive and send letters; and
(b)     letters sent to prisoners must be handed to them as soon as reasonably                practicable after delivery to the institution; and
(c)     letters sent by prisoners must be forwarded as soon as reasonably   practicable.
(3)     A letter sent to or by a prisoner contravenes this section if it contains—
…
(k)     material of a kind prohibited by the regulations or the CE.
…
(4)     The CE may cause all letters sent to or by prisoners to be opened and examined            by an authorised officer for the purpose of determining whether any letter           contravenes this section.
…
(12)   The CE must advise a prisoner in such manner as the CE thinks fit of any            action taken under this section in respect of a letter, or anything contained in        a letter, sent to or by the prisoner.
Section 33A regulates the receipt of goods by prisoners and relevantly provides as follows:[21]
33A—Prisoners' goods
(1)     A prisoner is not entitled to receive any goods from a person outside the prison             unless the prisoner has the permission of the CE to do so.
…
(3)     The CE may cause all goods, and all parcels apparently containing goods, sent              or given to a prisoner, or sent, supplied or given by a prisoner, to be examined.
(4)     If goods sent or given to a prisoner consist of items prohibited by the                 regulations or are goods in respect of which permission is not given, the CE               has an absolute discretion to deal with or dispose of the goods as he or she              thinks fit (for example, by returning them to the sender or donor, selling,              destroying or storing them, handing them over to a member of the prisoner's         family).
[21] Ibid s 33A.
Accordingly, s 33 provides prisoners with a qualified right to receive mail. The relevant qualification for present purposes is s 33(3)(k) which is directed to the regulation of letters containing material of a kind prohibited by the regulations or the CE. Section 33A(1), on the other hand, indicates that prisoners are not entitled to receive any goods unless they have the permission of the CE to do so. The terms “goods”, “letters” and “mail” are not defined in the CS Act.
The Shephard-Bayly decision is, on its face, a lawful decision by a delegate of the CE. The decision was expressed to be under s 33A(1) of the CS Act. It permits the applicant to receive goods from specified religious organisations and refuses permission to receive goods from others. To the extent that the applicant seeks to impugn the involvement of Mr Bossie, a decisionmaker such as Mr Shephard-Bayly was entitled to obtain and consider the views of the principal Chaplain particularly given that the organisations that were the subject of the decision were religious organisations.
The respondent contends that the Shephard-Bayly decision supersedes the Staples decision. It is not clear what is meant by this. Mr Shephard-Bayly’s affidavit does not reference the Staples decision. In particular he does not indicate that he was reconsidering the Staples decision or intending to replace it with his decision. Further, it is not readily apparent that the Staples decision and the Shephard-Bayly decision relate to the same material other than that the latter arose out of negotiations concerning the former.
The Staples decision refers to “booklets and pamphlets” and says that these are “now prohibited” from being sent directly to a prisoner. This wording suggests that the decisionmaker was proceeding under s 33(3)(k) which uses the terminology “material of a kind prohibited” rather than under s 33A(1) which refers to “permission”. The nature of the “booklets and pamphlets” is not specified in the Staples decision. It might be inferred that they are religious in nature given the invitation to consult with the DCS Prison Chaplain service to identify alternative means of obtaining such material, but this is not clear.
The Shephard-Bayly decision does not refer to ‘booklets and pamphlets’ but rather to ‘goods’ and is expressly stated to be made under s 33A of the CS Act. The Staples decision relates to prohibition of specified items ‘booklets and pamphlets’ whereas the Shephard-Bayly decision is directed to permitting ‘goods’ to be received or not according to the identity of the sender. It is possible that Mr Shephard-Bayly concluded that the ‘books and pamphlets’ referred to in the Staples decision were ‘goods’ and was merely seeking to limit the application of Mr Staples decision by permitting booklets and pamphlets from specified organisations. This possibility, although not the only one, appears congruent with the respondent’s submissions.
The respondent submits that the evident intent of ss 33 and 33A is, amongst other things, to provide a complete code for the receipt by prisoners of outside material. It is contended that the ordinary and natural meaning of “letter” is, as defined in the Macquarie Dictionary (Third Ed. 1999), a “communication in writing or print addressed to a person or a number of persons”. The respondent further contends that:[22]
Properly read together the term ‘goods’ insofar as they may in any event be sent by mail, refers to any material that falls outside the meaning of ‘letter’.
[22] FDN 30 at [16].
The respondent submits that the term ‘goods’ includes circulars, newsletters, pamphlets, and other reading material that may otherwise be sent by mail and consequently requires permission under s 33A. It is said that this construction achieves the clear purpose and object of the provisions, namely, to give prisoners the qualified right to send and receive letters but otherwise a restriction of the receipt of any other materials.
Under the definitions proposed by the respondent ‘booklets and pamphlets’ would not be letters caught by s 33 but would be classified as goods under s 33A. If that definition was accepted, it would mean that the Staples decision was made under s 33A as opposed to s 33(3)(k) notwithstanding it referred to prohibited material and specifically to “books and pamphlets”.
The applicant says, on the other hand, that the religious materials sent to him are regulated under s 33. He does not dispute the characterisation of these as “books and pamphlets”. He disputes that they are “goods”. He contends that a letter is anything written and addressed to him, and that goods are more in the nature of packages or parcels.[23] He further submits that these religious materials do not constitute any threat to prison security which appears to be the rationale for s 33A and that he had been receiving such documents for some years without incident.
[23] T17 - 18.
In the alternative, the applicant says that if the Court accepts the respondent’s definitions it does not apply those definitions consistently. He referred to the affidavit of Ms Petraccaro[24] where she stated that there was no guidance as to what is mail on the one hand and what is goods or property on the other. Authorised officers make their own assessment.[25] The applicant said this had the result that what was allowed in depended on who was screening the mail at any given time. By way of example, he referred to exhibits E, F and G to his affidavit[26] noting that he was allowed to receive exhibits E and G but not exhibit F. He suggested that these documents were all very similar being devotional booklets or magazines and, on the definition advanced by the respondent appear to be goods as opposed to letters. However, it appeared that exhibit G was allowed as a letter. The applicant pointed to exhibit CB2 of Mr Bossie’s affidavit[27] as another example of inconsistency. This was a letter addressed to the applicant care of the prison Chaplain from PSSM Mailbox Club dated 29 January 2023 enclosing material similar to exhibits E, F and G. The applicant contends that on the respondent’s definition this is a letter addressed to him and therefore ought to have been provided to him under s 33(1). Finally, the applicant submits that the respondent had never informed him of the action it took in returning mail to sender. He only discovered that action by making an FOI application for the mail log. He contends that this is a breach of s 33(12).
[24] Exhibit R4.
[25] Ibid at [12].
[26] Exhibit A1.
[27] Exhibit R6.
The construction of the terms ‘goods’, ‘mail’ and ‘letters’ must be ascertained according to their ordinary and natural meaning having regard to the grammatical construction, their context, and the construction of the CS Act as a whole. The legal meaning will generally correspond with the grammatical meaning of the provision but not always.[28] The interpretation which best achieves the purpose or object of the Act is to be preferred.[29] The objects and guiding principles of the CS Act are set out in s 3. The primary object of the Act is the promotion of community safety, and the other objects relevantly include providing for the safe and secure management of prisoners held in correctional institutions and the promotion of rehabilitation. It is permissible to use extrinsic material in interpretation of the legislation including explanatory memoranda at the time a bill is introduced in Parliament or any second reading speeches.[30] Everything appearing in an Act is part of the Act including headings.[31]
[28] Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355.
[29] Legislation Interpretation Act 2021 (SA) s 14.
[30] Ibid s 16.
[31] Ibid s 19.
Section 33 is headed ‘Prisoner’s mail’ however the substance of the section refers exclusively to “letters” rather than mail. The section provides that prisoners are entitled to receive and send letters subject to the qualifications outlined. The relevant qualification for present purposes is s 33(3)(k) ‘material of a kind prohibited by the regulations or the CE’.
Section 33A is entitled ‘Prisoner’s goods’ and provides that a prisoner is not entitled to receive any goods unless the prisoner has permission of the CE to do so. Section 33A was introduced in the Correctional Services (Prisoners’ Goods) Amendment Act 1994. The respondent points to the second reading explanation (‘the explanation’) included in Hansard which stated, amongst other things: [32]
It is widely recognised that control of the entry of goods into prisons is essential if the Department for Correctional Services is to effectively manage the behaviour and activities of prisoners in a safe and secure manner and procedures have been adopted to ensure that prisoners cannot received goods which might prejudice the ‘good order’ of prisons.
…
The intention of this Bill is to ensure that the receipt of goods by a prisoner will need the permission of the manager of the prison. As a consequence, managers will have more control over the number and nature of parcels received in prisons.
[32] South Australia, Parliamentary Debates, House of Assembly, 17 February 1994, 139.
Consideration of the whole of the explanation indicates that the amendment was directed to what is described as ‘parcels’. The concern was that without legislation to stop the uncontrolled forwarding of parcels to prisoners, the prison authorities could not restrict the entry of goods into prisons unless the goods contravened regulation 6 of the CS Act Regulations, or were items not permitted in the cells. The explanation appears to be directed to contraband of a physical nature such as drugs or weapons. The topic of written material such as pamphlets, booklets and other reading materials was not specifically addressed. Accordingly, the second reading material is of limited assistance.
It is plain that prison authorities need to regulate outside material entering prisons in order to fulfil the objects of the CS Act. I accept the respondent’s submission that the intent of ss 33 and 33A is to provide a code for receipt of outside material by prisoners. However, I do not accept the respondent’s submissions as to the ambit of those sections. In particular, it is my view that the definition of ‘goods’ proposed by the respondent is too narrow and thus the proposed ambit of s 33A is too wide.
Whilst it can be accepted that a letter is a communication in writing or print addressed to a person or a number of persons, the heading ‘prisoners’ mail’ and the content of the section makes it plain that s 33 is intended to regulate more than letters so defined. The section clearly contemplates regulation of enclosures as well as a covering letters. Section 33(11)(b) for example refers to prohibited items found in letters and s 33(11)(c) to sums of money found in letters. Section 33(3)(k) refers to a letter contravening the section if it contains ‘material of a kind prohibited by the regulations or the CE’. ‘Material’ in this context could mean something written in a letter but also something enclosed with a letter. Accordingly, it cannot be said 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. When enclosures to a letter become goods for the purpose of s 33A is a question of fact and degree. It can be readily appreciated that a covering letter cannot turn what might be properly described as goods into a letter for the purpose of avoiding the operation of s 33A. However, it is not necessary for the purpose of this matter to draw a boundary because, on any reasonable view, booklets and pamphlets are limited in size and can properly be described as prisoner mail rather than as prisoner goods regulated under s 33A.
The Staples decision is not therefore properly characterised as a decision under s 33A as it does not deal with goods. It may be, as the respondent contends, a decision under s 33(3)(k) however it is so poorly expressed that this cannot be certain. Moreover, the lack of precision in the decision combined with the limited direction contained in the SOPs means that inevitably the authorised officers who inspect mail will be left uncertain as to what is properly the subject of this prohibition. This will have the undesirable result that the decision will likely be implemented in an inconsistent and arbitrary manner.
The Shephard-Bayly decision arose out of negotiations concerning the Staples decision and is said to supersede it. This decision also suffers from a lack of clarity as to what precisely is sought to be regulated. Whilst the decision refers to goods and limits access these according to the sender there is no attempt in the decision to define goods. It appears likely, given the circumstances, that the decision was intended to deal with the same material as the Staples decision and accordingly impermissibly seeks to regulate prisoner mail pursuant to the provision that regulates prisoner goods.
It is therefore my view that both decisions are vitiated by error and accordingly I make orders in the nature of certiorari quashing both the Staples decision and the Shephard-Bayly decision.

[2024] SASC 20

15 February 2024