Stewart v Lewis

[1994] QCA 553

IN THE COURT OF APPEAL	[1994] QCA 553
SUPREME COURT OF QUEENSLAND

Appeal No. 236 of 1993

Brisbane
[Stewart v. Lewis & Anor]

BETWEEN:

SIMON MUNRO STEWART

(Applicant)

Appellant

AND:

KEVIN LEWIS

(First Respondent)

First Respondent

-and-

QUEENSLAND CORRECTIVE SERVICES COMMISSION

(Second Respondent)

Second Respondent

Macrossan C.J.
Pincus J.A.

Davies J.A.

Judgment delivered:  21/12/1994

Joint reasons for judgment of the Chief Justice and Mr Justice Davies. Separate dissenting reasons of Mr Justice Pincus.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	ADMINISTRATIVE LAW - Prisons - whether decision of General Manager restricting inmate to non-contact visits reviewable - whether decision of General Manager properly characterised as disciplinary or managerial - whether management powers used for improper purpose - whether denial of natural justice - Corrective Services Act and Regulations.
Counsel:	Mr S. Keim for the Appellant Mr P. Flanagan for the Respondents
Solicitors:	Prisoners' Legal Service for the Appellant Crown Solicitor for the Respondents
Hearing date:	27/05/1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 236 of 1993

Brisbane

Before Macrossan C.J.
Pincus J.A.
Davies J.A.

[Stewart v Lewis & Anor]

BETWEEN:

SIMON MUNRO STEWART

(Applicant)

Appellant

-and-

KEVIN LEWIS

(First Respondent)

First Respondent

-and-

QUEENSLAND CORRECTIVE SERVICES COMMISSION

(Second Respondent)

Second Respondent

JOINT REASONS FOR JUDGMENT

THE CHIEF JUSTICE and MR JUSTICE DAVIES

Judgment delivered 21/12/1994

This appeal seeks to challenge the ruling of the judge below in respect of the first respondent's determination that the appellant should be restricted for a period of four weeks to receiving prison visits of a non-contact character.

The judge has decided that the decision in question should not be reviewed. The first respondent is the General Manager of the Sir David Longland Correctional Facility and the appellant is an inmate there.

Certain behaviour involving the appellant and a visitor in the course of an earlier contact visit was described in the evidence. Although there had been some dispute about details of the behaviour, there was sufficient which is not disputed to render it unnecessary to investigate that aspect. The appeal does not depend upon any fine distinctions in respect of the behaviour in question. In these circumstances a sufficient description of it can be taken from his Honour's reasons.

On 23 May 1993 while receiving a visit from a female friend, the appellant was observed with his hands under the visitor's dress in the region of her thighs. The couple were ordered by supervising officers to desist and move apart and that direction was complied with. A little while later, however, it was again observed that the appellant had his hand under the visitor's dress in the same region and a further direction was given to him to remove his hand. On this occasion the appellant demonstrated an unwillingness to comply. On being spoken to by prison officers he became abusive and insolent. He was, as a result, charged with what was described as a major breach of discipline consisting of a failure to obey a lawful order. To this charge he pleaded guilty on 26 May 1993 and he was sentenced to four days separate confinement. No problem presently arises in respect of that charge and penalty.

On 27 May 1993 the appellant's behaviour involving his visitor on 23 May was reviewed at a management meeting. For what was described as "unacceptable behaviour in a public place" the General Manager decided that visits to the appellant of a contact character should be discontinued for one month. This order, at least so far as its unexpired aspect is concerned, has been stayed until the determination of the present appeal.

Contact and non-contact visits are not defined but enough appears for it to be accepted that visits in the former category take place with relatively unobstructed proximity permitted between inmate and visitor. Contact visits are shown to be a generally more desirable form of visit so far as prisoners are concerned.

Control of behaviour within correctional centres is maintained under a number of different provisions. The Corrective Services Act 1988 contains within Division 7 a Subdivision C which deals with breaches of discipline by prisoners. Relevant breaches of discipline are defined in Subdivision C as being those matters which are prescribed as breaches of discipline by regulation (see s.97(1)). The relevant regulations appear as Regulations 29-33 of the Corrective Services Regulations of 1989. Whether those breaches are major or minor is reflected by the way they are dealt with. They are to be dealt with either by a correctional officer or an officer of the Commission of a prescribed rank. Apart from cases of a trivial nature, the investigation of which may not be continued, minor breaches, if established, can result in either reprimands or orders for forfeiture of privileges over a period of 24 hours and major breaches, if established, can result in reprimands, forfeitures of specified privileges which might otherwise accrue in the next seven days, or orders for separate confinement for periods not exceeding seven days. There exist certain Rules of the Queensland Corrective Services Commission and Rule 21(3) prescribes privileges which may be forfeited in the case of a prisoner committing a breach of discipline. Amongst these in subrule (c) there appears, "having a contact visit".

The procedure applicable when minor or major breaches are under investigation is contained in sections 98-102 of the Corrective Services Act. In the case of both classes of breach there is provision for review of findings made against the prisoner. Offences of a more serious kind than mere breaches of discipline are dealt with elsewhere, namely in Subdivisions A and B of Division 7 of the Act, but the arguments advanced in the present case do not require the court to give further attention to those more serious offences.

The particular order which is challenged in these proceedings is not the penalty imposed for the major breach of discipline, the failure to obey a lawful order, but the one made by the General Manager on 27 May in the course of the management team meeting. In his letter dated 7 June 1993 to the appellant's solicitor, the General Manager described himself as having made this determination "in a totally separate forum" on 27 May. He said the order was made in accordance with paragraph 4.1 of the General Manager's rule 10-15. He said he decided the appellant's behaviour "was such that his contact visits should be discontinued for a period of one month" and this was done "to prevent a repetition of (his) behaviour and the consequent offence it would give to the visiting public" at the centre. He maintains that the order "was not imposed as a punishment".

No challenge is made to the bona fides of the General Manager. Thus, there was no suggestion that he acted in any roundabout way deliberately to impose an additional punishment on the appellant for what he had done on 23 May.

In the case of a major breach of discipline, there would not have been justification for forfeiting a privilege (if this was the effect of what the General Manager did) for any longer period than seven days: see s. 101(6)(b) of the Act.

The objection advanced was that, whether the General Manager appreciated it or not, the effect of what he had done was to impose an unauthorised penalty for what was in fact a breach of discipline. A further objection was that the General Manager had breached the requirements of natural justice in making his order on 27 May affecting the character of the appellant's visits without affording him an opportunity to be heard.

The first matter of objection requires further attention to be given to the nature of the breaches of discipline which are specified in the regulations. The character of the General Manager's Rules also needs to be considered.

While the promulgation of Rules by the General Manager is authorised by s. 17 of the Corrective Services Act, those Rules are only a subsidiary source of authority. This follows from the terms of s. 17 which are as follows:

General Manager's Rules
17.(1) The general manager of a prison may make
rules (the "General Manager's Rules"), not inconsistent
with this Act or the Corrective Services
(Administration) Act 1988 (or regulations made under
either Act) or the Commission's Rules, in respect of
the management and security of the prison and for the
safe custody and welfare of prisoners detained in or
who, for the time being, may be detained in the prison.

It thus appears that while the General Manager's Rules will not prevail over contrary indications in the Act or the regulations they are specifically authorised to deal, amongst other things, with the "management of the prison and the welfare of prisoners".

Dealing first with the General Manager's Rules, it appears that Rule 10-15 is the relevant one. Rule 10-15:5 provides for non-contact visits and by 5.1 it is prescribed that inmates in the following categories shall have non- contact visits: those who are rated maximum security or who are disruptive or "who, for particular reasons are considered unsuitable for contact visits". Authority to allocate inmates to non-contact visits is specifically conferred upon the General Manager and a hierarchy of authority is established under him with a procedure for staff consultations on the matter. Notification of the reasons for ordering non-contact visits may be required.

Rule 10-15, 5.2.6 is in these terms, "Where security will not be compromised, the reasons for the decision to allow an inmate non-contact visit only, is to be given to the inmate in writing, with a copy placed on his file".

It is noteworthy that there is no specific provision for consultation with the inmate before the decision is reached. Further, when consideration is given to the extent of the details which are specified in respect of other matters relevant to the decision-making process, any implication that there should be advance consultation with the inmate tends to be excluded. Clause 4.1 of the rule does describe contact visits as the "normal form" but adds this immediate qualification, "except where security, disciplinary or behavioural (prisoner or visitor) considerations suggest the visit should be non-contact".

The officer supervising visits is given certain on-the-spot
authority by clause 4.1.3 which is in these terms:

The Officer supervising visits may refuse a visit, or order that the visit be non-contact in respect of any person who:-

(1) Demonstrates an attitude or behaviour

that could be disruptive;

(2) Is intoxicated;

(3) Has a criminal history, that in the
opinion of the Officer could prejudice
security or the good order of the centre.

Not unexpectedly, certain attention is given in the Rules to security clearance of visitors and the way in which visitors and inmates are to be moved in and out of the visits area. Also, the General Manager is given a full authority to decide which inmates will be required to wear a particular form of clothing called "visits suits" during the course of visits. By clause 10.3.4 of the Rules it is declared that visitors who refuse to be searched may be refused entry to the Centre by the General Manager.

The impression conveyed by these various provisions is that a very large degree of administrative discretion is deliberately reserved to the staff controlling the Centre with the object of ensuring that there shall be no impediment to the discharge of their ultimate responsibility for the Centre's day-to-day operations. It may be desirable to say again that very different considerations would be raised by a case where there were suggestions that decisions were being made in bad faith and not for reasons properly relevant to the decision-making process. No attempt has been made to demonstrate any such case here.

The foundation of the appellant's argument that the order of the General Manager for non-contact visits was unauthorised comes from the form of the provisions dealing with breaches of discipline. It was said that, even if quite unknowingly, the General Manager, in making his order, had based himself on what was in fact a breach of discipline and all matters in that category had to be dealt with strictly in accordance with the procedure prescribed by the Act for major and minor breaches of discipline. Those provisions have an undoubted paramountcy over anything contained within the General Manager's Rules.

Counsel for the appellant drew attention to certain
breaches of discipline which are identified in regulations
29(a), (e) and (v) of the Corrective Services Regulations.

They are in these terms:

"A prisoner who-

(a)  disobeys or refuses to obey any lawful order of an officer or employee of the Commission, or contravenes or fails to comply with any provision of these regulations, the Commission's Rules ... or the General Manager's Rules, or contravenes or fails to comply with any provision of the ... Act ...

(e)  behaves in an offensive, threatening,

provoking, quarrelsome, insolent,

insulting, disorderly, obscene or
indecent manner; ... (or)

(v)  commits any nuisance or in any other way displays conduct offending against the good order and discipline of a prison or community corrections centre,

commits a breach of discipline for the purposes of the
Act."

Although this was disputed by Counsel for the

respondent, it is possible to accept that conduct of the
appellant on 23 May 1993 could be regarded as constituting a
breach of discipline under Rules (e) or (v) just quoted.
The question is what relevance that fact might have. In
fact, the appellant had pleaded guilty to a breach of 29(a)
and was dealt with accordingly. That, however, related to
conduct which at the time of the determination on 27 May
1993 lay in the past. Was the fact that the appellant had
been so dealt with something which disentitled the General
Manager from making a ruling of a prospective character on
the later occasion which would deny contact visits to the
appellant, that is by deciding that for a specified future
period they should not occur? Although there might be
thought to be no necessary relation between these two
matters, the penalty for the refusal to obey a direction and
the later determination that there should be no more contact
visits, the argument was that the ruling for the future was
based on what the appellant had done in the past and
therefore amounted to an additional unjustified punishment
for that past conduct. This argument should not be
accepted. What the appellant had done in the past was not
excluded from matters which the General Manager might
consider in making his assessment of what was called for by
way of proper administrative arrangements for the future.

Suppose the appellant had not actually done that act involving the placing of his hand that might have amounted to a breach of discipline of one kind or other on 23 May, but had merely announced that he intended to do something of that kind on the occasion of a future contact visit and the General Manager, hearing of it and with a view to preventing the prisoner from acting in the way he threatened, had decided that future visits, at least for a time, should be non-contact. In these circumstances, it could not be contended that the prisoner was being punished for a breach which had actually occurred. The determination would clearly have been made to prevent the occurrence of future breaches. It should be accepted that the General Manager of the institution has a general overall responsibility to endeavour to prevent breaches of discipline occurring. A further example can be envisaged. Suppose a prisoner, in the course of his earlier career before becoming an inmate of the particular institution, had demonstrated a tendency to make unprovoked and violent attacks on strangers, the General Manager, aware of that fact, would not be acting unreasonably if he decided that because of it, the prisoner should be restricted to non-contact visits. In any such decision he clearly could not be regarded as punishing the prisoner for a breach of discipline that had occurred within the prison. An assessment of the future behaviour of a prisoner likely to occur if steps are not taken to prevent it, is something which a conscientious prison manager should turn his mind to and it would be surprising if within the Rules, regulations and other enactments, any indication appeared that such a matter was excluded from the prison manager's considerations. While the enactments to which our attention was directed exhibit an intention to regulate the imposition of punishments for breaches of prison discipline, nothing suggests that a manager's general administrative responsibility is curtailed or that directives issued in good faith intended to maintain the security and reasonable discipline of the prison are impeded when some specific provision does not directly indicate it.

In the course of argument, Counsel for the respondent was disposed to concede that if the behaviour of the appellant towards his visitor on 23 May, objectively judged, was embraced by one provision or other of Regulation 29, then the appeal should succeed. However, the reasons already stated indicate that this is not the relevant question for the determination of the appeal and notwithstanding the concession, the matter was fully argued.

The argument that the Act and regulations had an effect in the circumstances that the discretion of the General Manager to order non-contact visits for the appellant was restricted should be rejected.

The remaining question is whether the General Manager's order breached the requirements of natural justice in that the appellant was not given a specific opportunity to argue against the order for non-contact visits before that order was made. Some attention has already been given to this matter. There appear to be good reasons why this further submission on behalf of the appellant should be rejected.

The fact is that no unqualified right to non-contact visits is conferred by the Rules but there is an ever present obligation on the General Manager to decide whether, in each individual case, contact or non-contact visits are indicated as desirable. Further, particular procedures are ordained to control the decision-making on this question and they do not indicate that there can be anything approaching a right or expectation in the ordinary case that visits will necessarily be of a contact kind. Rather the reverse is the case because, apart from instances where security or disruptive behaviour are involved, the matter remains one for decision on broad grounds of suitability to be determined primarily by the General Manager: see clauses 5.1(3) and 5.2.1 of the Rules. The fact that elsewhere in the Commission's Rules contact visits are treated as a privilege which can be forfeited for a breach of discipline does not affect the conclusion that general administrative considerations may also call for an order for non-contact visits. Conversely, no general administrative considerations may call for it but a need to punish for some past breach of discipline may result in its being ordered in an individual case. The fact that unless security would be compromised, the prisoner is to be given a statement of reasons after a decision for non-contact visits is made (clause 5.2.6 of the General Manager's Rules) but yet nothing is said about an opportunity to argue against it in advance, provides some indication that it is not contemplated there should be such an opportunity. The possibility that non-contact visits might be ordered at any time for good general reasons would clearly be understood and the form of a particular prisoner's visits would be accepted as liable to change from time to time according to the General Manager's judgment. Nothing which could be regarded as a legitimate expectation has been defeated by the decision of the General Manager and this is especially so since a sufficiently clear indication excluding a general expectation of a continuance of contact visits appears within the General Manager's Rules, cf Annetts v. McCann (1990) 170 C.L.R. 596 especially at 598.

Although it is not strictly necessary to add this, it can be mentioned that the appellant had a full opportunity in fact to explain the reasons for his earlier behaviour on 23 May. It is at least likely that he would, at the same time, have provided an indication of what the pattern of his behaviour was likely to be on similar occasions in the future.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 236 of 1993.

Brisbane

Before Macrossan C.J.
Davies J.A.
Pincus J.A.

[Stewart v. Lewis & Anor.]

BETWEEN:

SIMON MUNRO STEWART

(Applicant) Appellant

AND:

KEVIN LEWIS

(First Respondent)First Respondent

- and -

QUEENSLAND CORRECTIVE SERVICES

COMMISSION

(Second Respondent)Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21/12/1994

I have had the advantage of reading the joint reasons for judgment of the Chief Justice and Davies J.A., in which there are to be found an explanation of the nature of the case and a statement of the issues raised.

The first point to be considered is whether the action taken against the appellant on 27 May 1993, discontinuing contact visits for a period of one month, is invalid by reason of the provisions of ss. 97 to 102 of the Corrective Services Act 1988, which provisions will be called "Subdivision C". The view that the action taken is invalid on that basis depends on two propositions: first, that what the appellant did leading to the action against him constituted a "breach of discipline" within the meaning of Subdivision C and second, that on the proper construction of the Act a breach of discipline may be dealt with by such action only under those sections and not otherwise.

On the first point, my opinion is in favour of the appellant. The meaning of the expression "breach of discipline" depends on the regulations. It is enough to note that regulation 29(v) makes a prisoner who "commits any nuisance or in any other way displays conduct offending against the good order and discipline of a prison or community corrections centre" guilty of a breach of discipline for the purposes of the Act. The conduct of the appellant, described in the reasons of the Chief Justice, appears to me to fall within that description. No doubt ideas as to the propriety of types of contact between a prisoner and visitors might vary from time to time, depending upon the attitude of the management of the prison;

but the proper inference is that the appellant's repeatedly placing his hands under his visitor's dress, in the area of her thighs, was conduct offending against the good order and discipline of the prison. That inference is supported by the fact that it brought about the action complained of, and by the terms of the decision of 27 May 1993, which included the following:

"The Visits area is considered a public place which is frequented by families and children, as well as other community members. Behaviour in the Visits area of this Centre must reflect the acceptable behavioural standards required in the community.

Due to your demonstrated unacceptable behaviour in the Visits Area at the Centre, you are to be placed on non-contact visits..."

I pass to consider whether the intention of the statute is that breaches of discipline such as that discussed in the passage just quoted are to be dealt with, by such action as was taken, under Subdivision C and not otherwise.

There are two obstacles in the way of giving an answer to that which is favourable to the appellant. First, it would be surprising if breaches of discipline which seriously affect order or security could be dealt with only under Subdivision C. An attempted break-out would obviously be a major breach of discipline, but it would be absurd if it could be dealt with only under s. 101 - i.e. by way of complaint, in the form prescribed by regulation. One would expect the prison management to have legal power to apprehend those involved and take such other steps as are necessary to deal with the attempt, even if the steps involved actions which would in some factual contexts be capable of being regarded as punishments. The second obstacle is that there are provisions in the Act under which steps clearly may be taken of the kind just mentioned, other than by way of charging prisoners for breaches of discipline. It is sufficient to summarise: s. 14 makes the general manager of a prison responsible for the security and management of the prison and the safe custody and welfare of the prisoners detained; s. 39 allows the general manager to order the segregation of a prisoner from other prisoners, for the security or good order of a prison or the safety of a prisoner; s. 44 allows a correctional officer to give a prisoner any order he believes on reasonable grounds to be necessary for the security or good order of a prison or for the welfare or safe custody of the prisoners; s. 112 gives the Commission certain emergency powers, including restriction of access to the prison and withholding of privileges.

The conclusion, then, that all actions which constitute breaches of discipline may be dealt with under Subdivision C and not otherwise must be rejected. But this does not necessarily involve deciding that resort to those sections is in every case optional, in the sense that the prison authorities may deal with any breach of discipline by acting either under Subdivision C or under any other power created by or under the Act; if that were so, the procedural safeguards and rights of review in Subdivision C could easily be evaded. It is surely improbable that the legislation intended observance of these safeguards to be optional.

The problem of defining the extent to which the statute or its predecessor, the Prisons Act 1958,restricted the power of prison authorities to take steps to preserve

discipline in prisons other than by formally charging
prisoners has been discussed in the cases.

In McEvoy v. Lobban (1990) 2 Qd.R. 235, the steps taken

included keeping a prisoner alone in a cell for some days.
In deciding that what was done was within power the Full
Court relied in part upon Reg. 367 of the Prisons
Regulations 1959, which has no relevant counterpart in the
present case. In the reasons of the Chief Justice the
segregation of the prisoner was described as being:

"...unchallengeably a management decision taken squarely within the scope of the power which prison governors necessarily possess, that is if anarchy is to be avoided".

In Gray v. Hamburger [1993] 1 Qd.R. 595, a decision under the present Act, the plaintiffs complained of being denied benefits - with respect to visits - which they had previously enjoyed. One of the arguments advanced was that Subdivision C, read with other provisions, implied that privileges once granted could not be withdrawn by way of acts of management. The judgment of Byrne J. supports the view that withdrawal of privileges otherwise than by way of punishment for an offence is permissible if supported by the management powers conferred by or under the Act, so long as the powers are not "exercised in bad faith or for some such improper purpose as the infliction of punishment for an offence without compliance with the Subdivision C procedures". These cases tend to support the view that the distinction to be observed is between management decisions on the one hand and the infliction of punishment on the other; I am, with respect, unpersuaded that an allegation of bad faith or improper purpose must be made out, to invalidate an action which is in truth punitive, although not taken under Subdivision C.

The decisions in ex parte Fritz (1992) 59 A.Crim.R. 132 and in re Walker (1992) 60 A.Crim.R. 463 should also be mentioned, although they do not have any direct relevance to the problem presently being considered.

It is easy to agree with the contention that, under the present statute, as under that considered in McEvoy v. Lobban, not every action taken by the prison authorities which is disadvantageous to a prisoner, as a consequence of bad conduct by him, must be taken in a formal way under the relevant provisions of the Act, now Subdivision C. What is not quite so easy is to define the characteristics of those steps which must be taken, if at all, under Subdivision C.

It is important to note that the Act does not define them expressly and that can only be done by way of implication. Action taken to avert a riot or break-out must surely be outside Subdivision C, but that is a category which does not comfortably include the steps with which the Court is presently concerned. It appears to be going too far to say that any steps taken to preserve good order and discipline within the prison are steps of a managerial kind which need not be taken under Subdivision C. One reason for this view is that breaches of discipline, the subject matter of Subdivision C, are defined so as to include "conduct offending against the good order and discipline of a prison". One way in which the manager of a prison may preserve order is to withdraw privileges, either wholly or temporarily, to discourage repetition of abuse of a privilege, or other misconduct; it is argued that this is what happened here.

Without attempting comprehensively to define the proper limits of operation of Subdivision C, it appears to me that steps taken wholly or substantially by way of punishment for misconduct are within it; such steps may in my opinion be taken only under Subdivision C. The restrictions in s. 93(3) and in s. 101(6) appear to me to provide strong ground to doubt that it was intended that, to discourage breaches of discipline, managerial powers may be used to take away privileges for a month: the limits of 24 hours in the former provision and 7 days in the latter are pointers.

In the letter from the first respondent, written on behalf of the second respondent, dated 7 June 1993, one finds the following explanation of the discontinuation of contact visits:

"The Incident which latter (sic) prompted the order related to actions of an offensive nature (Stewart was observed to place his hand up a female visitor's dress in a thrusting manner highly suggestive of sexual contact). This occurred in a contact visits area, a place frequented by women and children. Stewart was placed on non-contact visits to prevent a repetition of this behaviour and the consequent offence it would give to the visiting public to this centre. It was not imposed as a punishment."

The critical expression, in my view, is "to prevent a repetition of this behaviour".

Suspending contact visits would not prevent a repetition of the behaviour except during the period of suspension, namely one month. The other and more important way in which the action taken would tend to prevent repetition is by teaching the appellant a lesson - punishing him. I do not accept that there was no element of punishment involved in the respondent's action; it seems likely that punishment was the principal purpose of what was done; the respondents' assertion to the contrary is in my view erroneous. I agree that if contact visits had been suspended in circumstances in which no misconduct had occurred - because of a fear that it might occur - that could hardly be regarded as punishment; but that is not this case. It will be noted that the terms of the impugned decision of 27 May 1993, partially quoted above, contain no suggestion that the suspension of visits was merely a management matter, or not a punishment; the latter suggestion was first made after the validity of the decision was challenged.

It was conceded on behalf of the respondents, wrongly as it seems to me, that if the appellant's conduct came within regulation 29 then it necessarily followed that the appellant should have been proceeded against under Subdivision C. Some matters falling within that regulation may in my opinion be dealt with either under Subdivision C or under what are conveniently called management powers;

but those do not include instances in which the steps taken
are in substance by way of punishment.

I would add that the present statute, like that it replaces, leaves undefined the circumstances in which prison authorities may act against a prisoner on the ground of his misconduct otherwise than under Subdivision C; that lack of express definition appears to me inconvenient.

I would allow the appeal with costs here and below and set aside the decision of the first respondent of 27 May 1993 referred to in the application.