Prisoners A-xx Inclusive v State of NSW

[1995] HCATrans 341

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S113 of 1995

B e t w e e n -

PRISONERS A-XX INCLUSIVE

Applicants

and

THE STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 NOVEMBER 1995, AT 10.31 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MR R.W. WHITE, for the applicants. (instructed by Bruce R. Miles, Principal Solicitor, Aboriginal Legal Service Limited)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:   May it please the Court, I appear with my learned friend, MR D. COWAN, for the respondent. (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales)

DAWSON J:   Yes, Mr Gross.

MR GROSS:   Your Honours, this application raises two questions:  firstly, the ability to rely on habeas corpus and secondly, the question of a Magna Carta Chapter XXIX advances the applicants’ case.

TOOHEY J:   Mr Gross, if special leave were granted, what relief are you seeking?  There is none stated in the notice of appeal.

MR GROSS:   Your Honour, that is an omission.

TOOHEY J:   Well, I am not concerned with it just as a matter of what is on the papers, but what are you asking by way of relief?

MR GROSS:   Your Honours, that the applicants be allowed to rely upon an amended statement of claim for the purposes of its trial which seeks habeas corpus relief in the alternative and where, for the purposes of all remedies sought, the applicants can pray in aid the provisions of Chapter XXIX of Magna Carta.

TOOHEY J:   But do you mean you are asking for an order that would allow proposed amendments to the statement of claim to stand, proposed amendments that have been disallowed, or what?

MR GROSS:   Yes, your Honour, that is the case.  Those amendments have never been granted, either by Justice Dunford or by the Court of Appeal.

TOOHEY J:   You do have extant a cause of action based upon administrative law.

MR GROSS:   Your Honours, that is so and indeed Justice Sheller, in our submission, incorrectly said, it is not necessary to have this other assistance by way of habeas corpus or Magna Carta.  In our submission, that is an incorrect approach.  So far as Magna Carta is concerned, that gives us an express statutory basis upon which to found our claim, as distinct from depending upon the exercise of a discretion in the face of a policy position of the government.  So far as habeas corpus relief is concerned, that is, in our submission, peculiarly tailored to the specific question of attacking the illegality of these conditions affecting what otherwise is a valid imprisonment. 

Your Honours, we submit, that the importance of this other avenue of relief must ultimately be judged in the context of the facts which are reduced at trial but, unfortunately, progressively, both before Justice Dunford and in the Court of Appeal, we have had the available relief and the grounds of relief reduced to the point where the applicants face unacceptable risks at trial without them.

TOOHEY J:   And is it the same relief claimed in respect of each of the three causes of action, the administrative law, Magna Carta and habeas corpus?

MR GROSS:   Yes, your Honour, in substance; all of the relief sought is, in effect, injunctive in nature, whether by a declaratory process or specifically prohibiting such conduct, preventing the prison authorities from denying to prisoners access to condoms.

TOOHEY J:   Yes, thank you.

MR GROSS:   Your Honours, the errors the court fell into, in our submission, start at page 32 and in the passage at lines 30 and following, your Honours will see that Justice Sheller, with whom the other judges agreed, said that the process of habeas corpus:

enables the Court.....to command the production of the person detained and inquire into the cause of imprisonment.

Your Honours, we accept that in the ordinary run of habeas corpus cases, what is being challenged is the fact or length of imprisonment, and it is true that producing the warrant which shows the legal authority of the custodian to restrain the prisoner would be a complete answer in that situation.  But however, in the situation not touched by the Australian authorities, where the challenge is that the legality of a particular condition of imprisonment or where the challenge is not to the deprivation of liberty of movement but to the loss of other liberties, we submit that habeas corpus plainly has a role which has been recognised in the United States and, indeed, in Canada.

McHUGH J:But the United States cases are not helpful because they turn on the Eighth Amendment, do they not?

MR GROSS:   With respect, no, your Honour, but they proceed in this way:  they say that habeas corpus involves a challenge not to the fact of imprisonment but to the legality of the restraints upon the person’s liberty, so that they treat custody as being a divisible concept and they treat liberty as involving the collection of all the personal liberties in the case of a prisoner or those residual liberties you are entitled to keep, notwithstanding the fact that for the protection of the public you have to be kept behind prison walls.

McHUGH J:Yes, I know, but defining “liberty” in the context of imprisonment is no easy task, is it?  I mean, a prisoner has got to go to his cell at 3.20 in the afternoon, and in one sense that is a deprivation of his liberty, but you cannot suggest that he is entitled to get habeas corpus for that, are you?

MR GROSS:   Your Honour, we accept, and the cases accept, that there are necessary and proper restrictions on liberty by virtue of the fact of imprisonment itself, but that poses the question whether there are some restraints which do not involve meeting that particular need of society or what is inherent and properly regarded as being part of the sentencing decision.

McHUGH J:But what is the precise restriction of liberty in this case?

MR GROSS:   Your Honour, it is the inability of the prisoner to have the protection of those medical measures which are available in the community generally for protecting himself against what is a potentially fatal disease.  Now, the protection of health has been traditionally regarded by Blackstone and others as being an inherent part of the personal liberties of the citizen and, in our submission, that itself as a liberty separate from liberty of movement has historically been protected by the law and is capable - and indeed the United States Supreme Court recognises this - of being protected by habeas remedies.

Your Honour, the difficulty, putting aside the question of binding authority which the Court of Appeal had, was the problem that if the confinement is illegal because of this particular condition, that means that as a corollary the prisoner must walk free if the confinement is illegal.  That did not trouble the Supreme Court of Canada in Miller, where plainly the remedy granted was to release the prisoner back into the general prison population but with the illegal restraint being removed.  Similarly we would argue that section 71 of ‑ ‑ ‑

McHUGH J:It is not a restraint.  I mean, many people in the community, probably the majority of the community, may well think that in the prison environment condoms should be available to prisoners, but really it strikes me as close to absurd to suggest that in some way that makes the imprisonment illegal.

MR GROSS:   Well, your Honour, there are two ways to view it, in our submission.  One is that there are certain conditions which are intolerable because they are not justified by law and because they expose someone to a risk of death so that that condition itself can taint the imprisonment and render it illegal.  Now, of course, your Honour, it requires only an adjustment of the conditions of imprisonment to remove that offending condition so as to render the imprisonment legal.

McHUGH J:But where do the implications of this proposition go?  I mean, prison itself is full of risks to prisoners; death or serious injury is the constant companion of most prisoners.

MR GROSS:   Your Honour, that risk is an unavoidable part of being in prison, it may be argued.  However, your Honour, where in fact the danger comes from a conscious policy decision of the prison authorities to deny the person that particular protection, that is something which is being imposed under cover of authority of law when in fact it is not inherent in the sentencing decision, nor does it serve any valid penological purpose, and it is to that that it is appropriate ‑ ‑ ‑

McHUGH J:But that does not make it illegal, and that is the point.  I mean, you have got other remedies.  If what is being done here is wrong, you have got remedies in tort, you may have remedies in administrative law, but you are seeking habeas corpus.  You are saying, “We’re entitled to have a prisoner released simply because the authorities will not provide condoms”.

MR GROSS:   Your Honour, the Supreme Court of Canada and the courts in the United States have said that it is not necessary to have complete release in order to grant the remedy.  Rather, what one has is a form of partial habeas corpus which, in effect, puts the prison authorities to the option of either removing the condition and keeping the prisoner or else releasing the prisoner or, alternatively, under section 71 - and there are equivalent provisions in the United States - the power under section 71 under habeas corpus - habeas corpus meaning of course bring the prisoner to the court so the court can make appropriate orders - is that the court then makes such order as is appropriate under section 71, which can include, in our submission, orders falling short of complete release, namely removing the condition.

McHUGH J:I hear what you put, Mr Gross, but it seems to me this is a political question; it has got nothing to do with the law.  There is probably a very sizeable percentage of the community who thinks that prisoners should not have condoms in prison because they should not be engaged in homosexual acts, but it is a long bow, it seems to me, to say the confinement of a prisoner is illegal because the prison authorities will not provide condoms, notwithstanding that a majority of the community may well think that prisoners should be given condoms.

MR GROSS:   Your Honour, there are two ways it is put.  One is that the imprisonment becomes illegal because of that particular condition.  The other approach is that the cases say that it is illegal restraints on liberty in respect of the custody of a prisoner, and custody includes restriction, or illegal restraints in this case, of particular liberties, although in fact there is plainly a purpose to be served in restraining the liberty of the prisoner and, in our submission, habeas corpus has been used effectively to deal with what in fact are restraints upon liberties, but nevertheless ‑ ‑ ‑

McHUGH J:But not in this country.

MR GROSS:   No, your Honour, but that is because the challenge has always been to, in effect, the authority whereby the prison holds the prisoner, so therefore one goes back to whether a judicial order has been made which has that consequence.

McHUGH J:If you spell it out and if you brought habeas corpus and the gaoler would send in his return, he would show the conviction, the order of conviction and sentence and imprisonment; that would be his authority to hold the prisoner.

MR GROSS:   Well, your Honour, that is why we say it is an error at page 32 to say the court then inquires into the cause of the imprisonment.  The cases are clear, in our submission, and the American jurisprudence makes quite clear, as does the Canadian, that the inquiry is into the legality of the custody and, in our submission, that is not answered by showing how the prisoner got there in the first place; it involves the court receiving evidence concerning the alleged way in which that condition of imprisonment either has the effect of rendering the imprisonment illegal or alternatively represents an element of custody which requires court intervention.

So that, your Honours, it is the legality that the court inquires into, the validity of the restraint, not the legal source from which the order came justifying the initial entry into prison and, your Honours, that is why the Supreme Court of the United States has twice, in effect, dealt with the matter, regarded it as being an open question, but plainly indicated it is a matter of public importance that needs to be addressed.  The Supreme Court of Canada itself, in our submission, took the equivalent view and the Court of Appeal fell into error in treating that case as being identifiable solely as a “prison within a prison” case, as distinct from one in which the court made clear two things:  one, habeas corpus is available to provide partial relief in respect of a particular condition; and two, the fact that the initial order made was appropriate does not foreclose the court examining the legality of that particular condition.

Your Honours, the second point concerns habeas corpus.  The Court of Appeal ‑ ‑ ‑

McHUGH J:Could I just understand your point a little better than I am?  Is your argument that an individual prisoner’s imprisonment is intolerable and therefore illegal because other prisoners may contact AIDS and those persons may injure the individual plaintiffs, or is it that the inability of your client to be able to use a condom makes his imprisonment intolerable and therefore illegal?

MR GROSS:   It is a mixture of both, your Honour, and there is affidavit evidence directed to the question showing it is a major problem in prisons that prisoners are having unprotected sex, but the fact that others other than the applicants are increases the risk because there are more persons who are capable of, in various ways, whether it be using syringes or in some other way, even in fist fights, creating some exchange of bodily fluids or blood which exposes the applicant to that particular risk.

TOOHEY J:   But it is put in a curious way.  The statement of claim pleads that the plaintiffs are at risk by reason of the failure of the prison authorities to provide condoms to other prisoners.

MR GROSS:   Well, your Honours do not have the text of the statement of claim.

TOOHEY J:   Well, I am relying upon it so far as it is incorporated in the judgment of Justice Dunford on page 2.

MR GROSS:   Yes.

TOOHEY J:   Has it changed since then?

MR GROSS:   Your Honours, I think there have been various transformations, but I think it is common ground, your Honour, that what is alleged is failure to provide the condoms both to the applicants and to other prisoners.  Justice Dunford cut out the reference to “other prisoners” as being a source of legal remedy, but the consequence of the Court of Appeal order was to restore that part, so in fact both sources of potential infection were capable of being relied on by the applicants.

TOOHEY J:   What relief is claimed in respect of habeas corpus:  release unless the request is complied with or an injunction to restrain the prison authorities from not providing condoms?

MR GROSS:   Your Honour, the first alternative is plainly what we have asked for.  However, we see that habeas corpus, as in Miller’s Case, can operate in conjunction with other administrative-type remedies, but in effect the result sought is the same, your Honour.

TOOHEY J:   You are really seeking to use habeas corpus as a sort of civil remedy, are you not, rather than the conventional way in which it has been used?

MR GROSS:   Rather than seeking an absolute release, that is correct, your Honour.  But, on the other hand, if they wish to maintain that condition, the obligation is to release.

McHUGH J:So you would go so far as to say that if a prisoner, for example, was constantly bashed and was not being adequately protected by the authorities, that habeas corpus would go for his release?

MR GROSS:   Well, your Honour, if in fact that had become a condition of his imprisonment as distinct from a recurrent fact, yes, your Honour.

DAWSON J:   Notwithstanding he had other remedies, in the circumstances.

MR GROSS:   Yes, plainly it is easy to address that problem when the prison authorities would be against such conduct occurring, and we clearly recognise their duty of care rather than this situation where they are the ones who have put the problem in place and they are the ones who are seeking to

defend it.  Your Honours, I had hoped to say something about Magna Carta, and that is addressed in our written submissions but, in our submission, that does provide a statutory basis which gives the applicants’ case added strength at trial.  The significance of that must be judged at trial and, in our submission, the court acted prematurely in foreclosing that avenue of argument to the applicants. 

DAWSON J:   Thank you.  Yes, Mr Solicitor.

MR MASON:   Your Honours, this is a procedural appeal.  The courses of action which the plaintiffs have are two:  an administrative law cause of action based upon Wednesbury unreasonableness of the now statutory decision, as the statement of claim alleges, to administer the prison in this way.  In aid of the unlawfulness that the plaintiffs say will follow from Wednesbury unreasonableness, they seek injunctive and declaratory relief, and there is no dispute at this stage of the proceedings that that relief could go if the cause of action is made out.

TOOHEY J:   Is there a State system of judicial review of administrative decisions, Mr Solicitor.

MR MASON:   Not a statutory one, but the common law ‑ ‑ ‑

TOOHEY J:   Well, I appreciate that; I should have said:  is there a statutory scheme?

MR MASON:   No, not as in the AD(JR) Act, but it is accepted that that avenue for review is available with respect to the decision as now it is pleaded if Wednesbury unreasonableness is made out.  Of course, that will be opposed on the facts.  There is a private cause of action in negligence and it is also accepted at this stage of the proceedings that if negligence is established injunctive relief, quia timet, could be an available remedy.

TOOHEY J:   Are you saying that negligence has been pleaded?

MR MASON:   Yes, and the Court of Appeal upheld Justice Dunford’s ruling that four of the plaintiffs - and they can choose which four - can run negligence claims.  The causes of action would be individual.  It has been foreshadowed that there would be a defence based on policy considerations denying the duty of care, but at this stage of the proceedings there is no strike‑out of that part of the claim.  The habeas relief, therefore, is unnecessary because it really seeks to be a remedy for a cause of action for which other remedies are available in this cause ‑ ‑ ‑

McHUGH J:Well, not necessarily.  The claim of the applicants is that their imprisonment is so intolerable having regard to the risk of AIDS because of the policy of the department, that their imprisonment has become illegal; that, to use the old language, it is a cruel and unusual punishment that is being inflicted on them.

MR MASON:   In the present constitution of the proceedings, according to page 5, the application is for the issue of the writs of habeas corpus, and my friend accepts this would bring up the prisoner before the Court.

McHUGH J:Well, no doubt the claim is for an extension of the application of the writ of habeas corpus, at least in this country and in England, I suppose.  It has never gone anywhere near as far as they seek to make it, but why is it not arguable?  Would you accept that if conditions of imprisonment could truly be described as intolerable that they would therefore become illegal and therefore habeas corpus might go?

MR MASON:   No, I submit that the remedy is to remove the intolerable condition not to set aside the court order that it within jurisdiction said, “Go to gaol”.

McHUGH J:But the United States cases seem to be prepared to go that far.

MR MASON:   Yes, and there are two distinctions there.  The habeas corpus writ that issues is not the Great Writ, but a statutory one under a federal act, and they are based upon breach of the Eighth Amendment, so it is a means of federal intervention in State prison administration and State judicial proceedings.

DAWSON J:   But you say there are remedies here.

MR MASON:   There are remedies here and the law on habeas corpus ‑ ‑ ‑

DAWSON J:   And if there were a need to extend habeas corpus, that is another thing, but you say there is no need.

MR MASON:   Yes I do, and I do submit that the law on habeas, as established in Williams’ Case, is clear, that it is an answer to the claim to say “Here is a decision by a court of jurisdiction saying ‘Go to gaol’, and that is the answer to the writ”.  So, yes, my submission is it is established by authority, it is unnecessary to add the additional remedy and the American law is distinguishable.  The Canadian law is not any help because Miller’s Case, which is referred to at pages 38 and 39, set out in Justice Sheller’s

judgment, is clearly a different case of what has been referred to as a sort of prison within a prison.  At page 39, starting at about line 10, quoting from the judgment of Justice Le Dain in the Supreme Court, in Miller’s Case, his Lordship said:

Confinement in a special handling unit, or in administrative segregation.....is a form of detention that is distinct and separate from that imposed on the general inmate population.  It involves a significant reduction in the residual liberty of the inmate.  It is in fact a new detention -

At line 20:

It is release from that form of detention that is sought.

And then at line 25:

I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population.

So there is no support in the Canadian decision for the extension.  The American law is distinguishable for the reasons I have put and there is neither authority nor purpose in extending habeas under Australian law to achieve the remedy that the plaintiffs seek in these proceedings.  Magna Carta again does not seem to go anywhere.  It is referred to as a basis for establishing the unlawfulness of the conduct, but if it is justified under the Prison Administration Act, so be it; if it is not, so be it.  If the Court pleases.

MR GROSS:   Your Honours, the argument that there are alternative remedies has no weight if they are not conceding those remedies are appropriate.  Your Honours, for administrative relief, we have to jump the higher barrier of Wednesbury-type unreasonableness, and we have the usual difficulties of attacking a policy decision where discretionary considerations operate.  Habeas corpus at least creates a presumption in favour of the applicants and, in our submission, that extra advantage is ‑ ‑ ‑

McHUGH J:What do you mean by “creates a presumption in favour of the applicants”?

MR GROSS:   Well, your Honours, the judgment of Justice Sheller at page 44 and particularly line 25, in referring to the three principles ‑ ‑ ‑

McHUGH J:Yes, but they are dealing with free men.  By hypothesis a prisoner is not a free person.

MR GROSS:   Well, your Honour, they are free men prior to the sentence commencing to operate but, nevertheless, we would submit that the protection is there at the initial point which ought to be given appropriate respect.

McHUGH J:But why do you say there is a distinction between, say, administrative review and habeas corpus?  Surely even on the habeas corpus argument a court would have to give consideration to the department’s right to formulate policy and could not be said to be intolerable simply because, for example, a court might happen to disagree with the department’s view.

MR GROSS:   Your Honour, we would submit that the deprivation of liberty, which itself is not authorised by any statute or by the court’s decision - by liberty I mean personal security in this case - that would be a commencing point in habeas relief and, in our submission, that is an important advantage, particularly given the great weight which historically habeas relief has given to considerations of personal liberty.

Your Honours, the second argument that was put was that there are tortious remedies, but of course the problem there is what was identified by Justice Dunford at page 29, namely whether there be:

operational breaches of the duty of care -

have to be considered depending on:

the circumstances of the individual plaintiffs and the perceived need of such individual plaintiffs for access to condoms.

So that, your Honours, it would depend very much on a court’s perception of the person’s proclivities, the risk to which he was exposed either by reason of the person himself or those around him, and how good available other protections might be.  Your Honours, weighing individual factors like that can be very difficult when one is measuring it against a policy and, your Honours, we submit that the factual considerations could vary greatly and affect the relief of individual applicants.  Where the evidence would only be what the situation is now, the court would not know what the situation would be in the future.  Incidentally, the first applicant, your Honours, is a transsexual who has been surgically operated upon and obviously is at major risk in relation to being attacked.

Your Honour, so far as Magna Carta is concerned, we submit that it is clear that Magna Carta by its terms refers to two alternatives:  one, imprisonment; two, the disseising or deprivation of liberties.  In our submission, Magna Carta gives us this advantage that both factors have to be addressed.  May it please the Court.

DAWSON J:   Having regard to the avenues of relief available to the applicants other than those based upon habeas corpus or Magna Carta, we do not think that there is sufficient reason to doubt the correctness of the decision reached by the Court of Appeal to warrant the grant of special leave to appeal.  Special leave is accordingly refused.

MR MASON:   We seek costs.

DAWSON J:   Mr Gross?  With costs.

AT 11.02 AM THE MATTER WAS CONCLUDED