Vansetten v The State of South Australia

[2020] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

VANSETTEN v THE STATE OF SOUTH AUSTRALIA

[2020] SASC 158

Judgment of The Honourable Justice Doyle

25 August 2020

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

The applicant is a prisoner. He seeks judicial review of a determination of the delegate of the Chief Executive of the Department of Correctional Services made on 30 January 2020 under s 23(1) of the Correctional Services Act 1982 (SA) (the Determination).

During the assessment of the applicant under s 23 of the Act, he had requested that he be transferred to the Adelaide Pre-Release Centre. However, the Determination made was that he should remain at the Mount Gambier prison.

In challenging the Determination, the applicant relies upon six grounds of review. The first ground involves an allegation of jurisdictional error due to a misapprehension of the requirements of s 23. The second to fifth grounds involve allegations of a failure to afford procedural fairness by reason of the failure to provide him with the information necessary for him to understand and respond to the considerations relevant to the Determination. The sixth ground alleges a failure to take into account relevant considerations. The applicant seeks an order in the nature of certiorari to set aside the Determination, or a declaration that the Determination was infected by jurisdictional error. He also seeks an order in the nature of prohibition.

The State of South Australia, as the respondent in these proceedings, has brought an application for summary determination of the applicant’s action under r 256.5 of the Uniform Civil Rules 2020 (SA).  Under r 256.5(3)(a), the Court must dismiss the action for judicial review unless it is satisfied that there is a reasonable basis for it. 

In support of its application for summary determination of the applicant’s claim, the State contends that there is no reasonable basis for any of the six grounds of review. Alternatively, and in any event, the State also contends that the applicant’s action should be summarily dismissed on the grounds that there is no reasonable basis for the relief sought, either because it would not produce any foreseeable consequence for the parties, or because it would be futile. In this context, the State relies not only upon the nature of the Determination, but also the fact that it has for practical purposes been superseded by an equivalent determination made upon a subsequent case assessment under s 23 of the Correctional Services Act.

Held, per Doyle J, granting the respondent’s application and summarily dismissing the applicant’s action for judicial review:

1.      There is not a reasonable basis for any of the grounds of review relied upon by the applicant.

2.      Even if a ground of review were made out, there is not a reasonable basis for any of the relief sought by the applicant.

Correctional Services Act 1982 (SA) ss 22(2), 23, 24, 25, 36; Federal Court of Australia Act 1976 (Cth) s 31A; Freedom of Information Act 1991 (SA); Supreme Court Civil Rules 2006 (SA) r 200C; Uniform Civil Rules 2020 (SA) r 144.2, r 256.5, referred to.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Anderson v Pavic [2005] VSCA 244; Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; Bromley v Dawes (1983) 34 SASR 73; Collins v Djunaedi [2016] SASCFC 48; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518; FAI Insurances Limited v Winneke (1982) 151 CLR 342; Flynn v The King (1949) 79 CLR 1; Fyfe v The State of South Australia [2000] SASC 84; Fyfe v The State of South Australia [2007] SASC 272; Kioa v West (1985) 159 CLR 550; McEvoy v Lobban (1989) 48 A Crim R 412; Page v The State of South Australia (1997) 95 A Crim R 25; Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201; Plenty v Attorney-General (SA) [2013] SASC 35; Public Service Association of SA Inc v Industrial Relations Commissioner of SA (2013) 115 SASR 413; South Australia v O’Shea (1987) 163 CLR 378; Spencer v Commonwealth (2010) 241 CLR 118; Watson v South Australia (2010) 208 A Crim R 1, discussed.

VANSETTEN v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 158

Civil:  Judicial Review

1. DOYLE J:    The applicant in these proceedings, Mr Vansetten, is a prisoner.  He seeks judicial review of a determination of the delegate of the Chief Executive of the Department of Correctional Services (the Department) made on 30 January 2020 under s 23(1) of the Correctional Services Act 1982 (SA) (the Determination).

2. During the assessment of Mr Vansetten under s 23 of the Act, he had requested that he be transferred to the Adelaide Pre-Release Centre (the APC). He did so because this is a low security prison that he considered would provide him with educational, work and other opportunities that would assist him in his rehabilitation, make him a better candidate for parole, and ultimately assist with his reintegration into society. However, the Determination ultimately made was that he should remain at the Mount Gambier prison.

3. In challenging the Determination, Mr Vansetten relies upon six grounds of review. The first ground involves an allegation of jurisdictional error due to a misapprehension of the requirements of s 23. The second to fifth grounds involve allegations of a failure to afford procedural fairness by reason of the failure to provide him with the information necessary for him to understand and respond to the considerations relevant to the Determination. The sixth ground alleges a failure to take into account relevant considerations. Mr Vansetten seeks an order in the nature of certiorari to set aside the Determination, or a declaration that the Determination was infected by jurisdictional error. He also seeks an order in the nature of prohibition.

4. The State of South Australia, as the respondent in these proceedings, has brought an application for summary determination of Mr Vansetten’s action under r 256.5 of the Uniform Civil Rules 2020 (SA).  Under r 256.5(3)(a), the Court must dismiss the action for judicial review unless it is satisfied that there is a reasonable basis for it. 

5. In support of its application for summary determination of Mr Vansetten’s claim, the State contends that there is no reasonable basis for any of the six grounds of review. Alternatively, and in any event, the State also contends that Mr Vansetten’s action should be summarily dismissed on the grounds that there is no reasonable basis for the relief sought, either because it would not produce any foreseeable consequence for the parties, or because it would be futile. In this context, the State relies not only upon the nature of the Determination, but also the fact that it has for practical purposes been superseded by an equivalent determination made upon a subsequent case assessment under s 23 of the Correctional Services Act.

6. For the following reasons, I have decided it is appropriate to summarily dismiss Mr Vansetten’s action for judicial review.

   Background

7. Mr Vansetten is 45 years of age.  In 2011, he was convicted of several serious offences (aggravated endanger life, aggravated recklessly causing serious harm, aggravated assault, two counts of possessing a firearm without a licence, assault police and breach of a bond), and was sentenced to 14 years and six months imprisonment, with a non-parole period of nine years and nine months.  He became eligible for parole on 24 February 2020, and his full sentence expires on 24 November 2024.

8. It seems that Mr Vansetten’s time in custody has been without significant incident.  He has been referred to in the Departmental case notes as an easily managed prisoner who has been polite and respectful to staff members.  He successfully completed two courses as part of his rehabilitation, being the Making Changes program that he attended between June and October 2018 while in the Mobilong prison, and the Living Without Violence program that he attended between July and December 2019 while in the Mount Gambier prison.  He has also availed himself of several other educational and work opportunities while in prison.

9. It was against this background, and in the context of an approaching eligibility for parole, that Mr Vansetten sought to be transferred to the APC during his December 2019 assessment under s 23 of the Correctional Services Act. However, before coming to the circumstances of that assessment, and the Determination that followed, it is convenient to describe the process for assessments under s 23, and the legislative framework within which they occur.

   The legislative framework

10. Part 4 of the Correctional Services Act is concerned with the management of prisoners.  Division 1 (ss 21A and 22) addresses the admission of prisoners and their assignment to particular correctional institutions or prisons. By operation of s 22(2), the Chief Executive of the Department (the CE) determines the correctional institution in which a prisoner is to be imprisoned. Under Division 4 (s 24), the CE has the custody of prisoners, and is conferred with an “absolute discretion” as to their location within the prisons and their regime for work, recreation, contact with other prisoners and other aspects of their day-to-day life as prisoners.

11. Under Division 5, the CE may, by written order, direct that a prisoner be transferred to any other correctional institution (s 25), and may grant a prisoner a leave of absence (ss 27 and 27A).

12. Division 6 is headed “Management of prisoners”, and addresses the work obligations, education, allowances and purchasing of personal items, and prisoner access to mail, visitors and legal services.  It also provides for the monitoring or recording of communications, and segregation, search and drug testing of prisoners.

13. Divisions 6A and 7 concern the release of prisoners, either on home detention or otherwise. 

14. It is in this legislative context that Division 3, and in particular s 23, provides for the assessment of prisoners.

    The assessment of prisoners under s 23

15. Section 23 of the Correctional Services Act provides for both the initial, and then subsequent periodic, assessment of prisoners by the CE.  It states:

    23—Initial and periodic assessment of prisoners

    (1) The CE must, as soon as practicable after the initial admission to a prison of a person who has been sentenced to a term of imprisonment exceeding six months, to life imprisonment or to a sentence of indeterminate duration, and thereafter at regular intervals of not more than one year, assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.

    (2) The Minister may, for the purpose of assisting the CE in carrying out assessments under this section, establish such committees as the Minister thinks fit.

    (3)     In carrying out an assessment under this section, the CE must have regard to—

    (a)     the age, gender, gender identity, sexuality or sexual identity, and the social, medical, psychological and vocational background and history, of the prisoner; and

    (b)     the needs of the prisoner in respect of education or training or medical or psychiatric treatment; and

    (c)     the aptitude or suitability of the prisoner for any particular form of training or work; and

    (d)     the nature of the offence, or offences, in respect of which the prisoner is imprisoned and the length of sentence; and

    (e)     the information contained in any file held by a court in respect of the prisoner; and

    (f)      the behaviour of the prisoner while in prison; and

    (g)     the security of, and availability of accommodation in, any prison under consideration; and

    (h)     the question of maintaining the prisoner's family ties; and

    (i)      where relevant, any proposed plans in respect of the release of the prisoner and his or her social rehabilitation; and

    (j)      such other matters as the CE thinks relevant.

    (4) The CE must notify the prisoner before commencing an assessment, and must, if the prisoner so requests, grant the prisoner an opportunity to make representations in person to the CE or to a committee established pursuant to subsection (2), including a request that, if practicable, the assessment be made by a person of the same sex or gender identity as the prisoner.

    (5) The prisoner may make written representations in respect of his or her assessment to the CE or to a committee established pursuant to subsection (2).

    (6) After the first assessment of a prisoner has been completed, the CE must prepare a programme in relation to the prisoner that contains particulars of any proposals for the education or training or medical or psychiatric treatment of the prisoner, and may, after any subsequent assessment, add to or vary that programme.

16. It can thus be seen that in relation to a prisoner sentenced to a term of imprisonment exceeding six months, s 23 requires that the CE “assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.” It requires that there be an initial assessment and determination, and then subsequent assessments and determinations at regular intervals of not more than one year.

17. The Act provides for the establishment of committees to assist the CE in carrying out the assessments (s 23(2)), and sets out the matters to which regard must be had (s 23(3)).  It also provides for the prisoner to be notified of the assessment and to make representations (ss 23(4) and (5)).

18. The State, in its submissions, emphasises the limited effect of a determination under s 23(1) that a prisoner should be transferred to another prison, including by contrasting this determination with a direction for the actual transfer of a prisoner under s 25 of the Act. Whilst the CE is the person with the ultimate responsibility for both the determination of whether a prisoner should be transferred under s 23, and any direction that a prisoner in fact be transferred under s 25, the two involve quite separate and distinct exercises of power.

19. The State emphasises, and I accept, that it follows from the separate and distinct nature of the powers that the outcome of a determination under s 23 does not dictate the outcome of whether a prisoner is ultimately transferred under s 25. As is apparent from the list of matters in s 23(3) to which the CE is required to have regard when carrying out an assessment, the focus of the assessment and determination under s 23(1) is upon the circumstances of the particular prisoner. When making a decision to direct the transfer of a prisoner under s 25, on the other hand, it is to be expected that the CE may be significantly informed by broader management and operational considerations having regard to the needs and circumstances of the various correctional institutions and other prisoners. While there will often be some overlap in the matters considered under both ss 23 and 25, they are ultimately different powers, to be exercised by reference to different considerations. As such, the terms of a determination under s 23 may well be influential in whether a transfer is directed, but it does not dictate or require that this occur. The CE is not bound to implement any aspect of the determination, or indeed any recommendation made during a case assessment. Conversely, a transfer might be directed under s 25 quite independently from any assessment and determination under s 23.

20. As to the practical implementation of the assessment and determination process contemplated by s 23 of the Correctional Services Act, the State relies upon an affidavit of Hayley Mills, who is employed within the Department as Executive Director, Community Corrections and Specialist Prisons.

21. Ms Mills explained that the assessment of a prisoner under s 23 is referred to within the Department as a case review. As described by Ms Mills, each prisoner is assigned a Case Review Committee (CRC). The CRC is chaired by the relevant prisoner’s Case Management Coordinator (CMC), and is attended by the prisoner and other relevant professionals, including those requested by the prisoner. 

22. The Department has also established the Serious Offender Committee (SOC).  Ms Mills jointly chairs the SOC, which ordinarily meets fortnightly.  Her co-chair is Vanessa Swan who is the Executive Director, Offender Development.  Ms Mills and Ms Swan share their responsibilities by chairing alternate meetings of the SOC.  The primary purpose of the SOC is to conduct regular case reviews for prisoners classified as ‘Serious Offenders.’ It also conducts special case reviews that may occur as a result of material or information that it receives outside of the routine case review process.

23. Mr Vansetten, as a prisoner serving a sentence of 10 years or more, was assessed as a Serious Offender for the purposes of case reviews under s 23 of the Act. As described by Ms Mills, case reviews for Serious Offenders proceed in the following manner. The prisoner is advised by letter of an upcoming meeting of his CRC. This ordinarily occurs about two weeks in advance of that meeting. A meeting of the CRC is convened and chaired by the prisoner’s CMC. The outcome of that meeting, including any recommendations, is recorded by the CMC on the Department’s electronic record system, called the Justice Information System (JIS).  The General Manager of the prison in which the prisoner is held considers the case review and endorses it, marking it “ready for approval”. 

24. The Sentence Management Unit (SMU) of the Department is then responsible for compiling the relevant information relating to the case review before the SOC. As part of that information, a document called an Offender Plan is generated from JIS. The Offender Plan records the outcome of the CRC meeting and the General Manager’s endorsement. The SOC then considers the case review at its next regular meeting. For the purposes of s 23(1) of the Correctional Services Act, the co-chairs of the SOC are delegates of the CE.

25. Ms Mills explained that in accordance with s 23, case reviews are conducted at least annually. However, for prisoners who are within two years of their conditional release dates (that is, the date upon which they become eligible for parole), case reviews are conducted at least every six months. As Mr Vansetten’s conditional release date was 24 February 2020, his case reviews were, and are, being conducted on a six monthly basis.

26. Ms Mills’ affidavit also included a general description of the Department’s approach to the documentary material relevant to prisoners and their case reviews:

    [The Department] holds a variety of documentary materials that relate to the custody and management of prisoners.  These documents include case notes in JIS about prisoner conduct and interactions, drug and alcohol testing, custody records, and other internal documents.  These documents also include intelligence reports relating to the conduct and management of prisoners.  These documents are not ordinarily provided to prisoners in order to preserve the operational integrity for which they were produced.

    The documents held by [the Department] also include reports and assessments that relate to the treatment and rehabilitation programs provided to prisoners.  Insofar as these reports discuss therapeutic interventions provided to prisoners, their principal purpose is to reduce the risk of recidivism in those prisoners, as distinct from any broader therapeutic goals.  Consequently, these reports are not ordinarily provided to prisoners as the intended recipients are those with the responsibility for the custody and management of the prisoners, both in custody and in the community on release.

    However, to the extent that these documents are considered for the purposes of a prisoner’s Case Review, it is the practice of [CMCs] to facilitate the discussion of the content of that material at a prisoner’s [CRC] meeting.  Relevant discussion is either facilitated directly by the [CMC] or by other professionals who attend the [CRC] meeting, and the prisoner is given an opportunity to make submissions either at that meeting or in writing.

    Mr Vansetten’s earlier case reviews

1. In these proceedings, Mr Vansetten’s complaints relate to his case review that commenced in December 2019 and culminated in the SOC’s Determination made on 30 January 2020.  However, for reasons explained later, he contends that it is relevant that this review occurred against a background of his dissatisfaction as to the process and outcome of several of his earlier case reviews.

2. I do not consider it necessary to recount the detail of the reasons for Mr Vansetten’s dissatisfaction with his earlier case reviews.  Nor am I in a position to make any findings about the merits of the complaints made by Mr Vansetten in relation to the same.  It is sufficient that I observe that these complaints largely relate to the lack of information provided to him in the context of those earlier reviews, and the potential impact this had upon the outcome of those reviews (in the sense that there had been instances where it subsequently became apparent to him that those conducting the review had had access to adverse (but inaccurate) information about him without him being aware of this and hence having an opportunity to correct or address it).

3. Putting Mr Vansetten’s complaints about the conduct of his earlier case reviews to one side for the moment, his evidence is that in his April 2018 case review, on the basis that he had been considered a low risk of reoffending, he was found to be suitable for participation in the Making Changes program.  It was recommended that he complete that program and, assuming its successful completion and his good behaviour more generally, that he then be considered for transfer to the APC.

4. By the time of his October 2018 case review, Mr Vansetten had completed the Making Changes program and had otherwise behaved appropriately. He sought a transfer to the APC, however this was not approved.  Mr Vansetten subsequently made various complaints about the conduct of this case review, and the lack of information that had been provided to him.

5. In the context of his May 2019 case review, Mr Vansetten’s evidence is that he was informed that his risk of reoffending had been raised to “moderate”, despite it having been “low” for the preceding seven years and without him being informed of the reason for this reassessment.  The outcome of this case review was a decision that he be transferred to Mount Gambier prison to complete the Living Without Violence (LWV) program.  Mr Vansetten’s evidence is that he was told that assuming successful completion of this program and good behaviour, he would be considered for transfer to the APC at his next case review.  Mr Vansetten was again dissatisfied with the lack of information provided to him, but his requests for further information were declined.

6. Mr Vansetten was transferred to the Mount Gambier prison and completed the LWV program.  It was a 20 week program that was conducted between July and December 2019.  The program was facilitated by two clinicians from the Department.  Evan Dunnicliff was the lead facilitator, and the one to whom Mr Vansetten was assigned.

   The December 2019 case review

7. In September 2019, Mr Vansetten was notified that his next case review would be conducted in early December 2019. On 19 September 2019, Mr Vansetten wrote to the Director of the SMU requesting that he be provided with all information likely to be considered during his December 2019 case review, so as to enable him to prepare appropriate representations and submissions.  He did not receive any information in response to this request.

8. On 2 December 2019, Mr Vansetten was notified by his CMC, Janay Clark, that a hearing would be conducted on 4 December 2019.

9. Mr Vansetten arranged for Mr Dunnicliff to attend the case review hearing.  As mentioned, Mr Dunnicliff was the facilitator of the LWV program that he had just completed, and Mr Vansetten’s expectation was that Mr Dunnicliff would provide Ms Clark, as his CMC, with any relevant information regarding his participation in that program so that it could be noted for consideration by the SOC in his case review.

10. On 3 December 2019, Mr Dunnicliff gave Mr Vansetten a page of feedback notes in relation to his participation in the LWV program, which Mr Dunnicliff said he was intending to provide for consideration during Mr Vansetten’s case review.  The feedback notes stated as follows:

    [Mr Vansetten] commenced the Living Without Violence (LWV) program at MGP on 23.7.19.  He was found to be at moderate risk of violence and recommended to be considered for the LWV program.  Key treatment targets identified for [Mr Vansetten] prior to program to address his violence included: interpersonal aggression; emotional management; weapon use; insight into violence; mental health; stability of relationships; and substance abuse.  The program concluded 3.12.19.

    Given [Mr Vansetten’s] prior Making Changes completion, he was able to assist other group members with understanding various concepts delivered as part of the program.  Consequently, [Mr Vansetten’s] intellectual grasp of concepts presented during program was sound.  Indeed, over recent years, he appears to have made gains with regard to emotional management, impulsivity, substance use, stablished mental health, and reduced interpersonal aggression.  Although, it should be noted that some of these risk factors have not been tested in community-specific contexts that have previously been problematic for him.

    However, at times facilitators experienced [Mr Vansetten] as somewhat resistant to discuss certain aspects of himself – it is important for him to recognise this and the potential impact it could have upon the relationship with his future CCO’s. [Mr Vansetten’s] post-treatment report will recommend that he could benefit from a period at APC, and engagement with the WRRR program.  It will also be recommended that [Mr Vansetten] participate in the DFVIP in the community post-release.

11. Upon reading the feedback notes, Mr Vansetten considered that the first sentence in the third paragraph was not only adverse to him, but inaccurate insofar as it stated that he had been “resistant to discuss certain aspects of himself”.

12. The following day, 4 December 2019, Mr Vansetten attended the hearing of his case review.  The hearing was chaired by his CMC, Ms Clark.  Also present were Mr Dunnicliff and a prison manager.  According to Mr Vansetten, the hearing was brief.   Mr Vansetten confirmed that he was seeking a transfer to the APC; Mr Dunnicliff confirmed Mr Vansetten’s successful participation in, and completion of, the LWV program; and Ms Clark confirmed that she would be recommending to the SOC that Mr Vansetten be considered for transfer to the APC, and that his security rating be reduced from 24 to 14.  Mr Vansetten sought, and was given, until 6 December 2019 to provide a written submission.  According to Mr Vansetten, no concerns about his behaviour, mental health or general suitability for transfer to the APC were raised during the hearing.

13. Following the hearing, Mr Vansetten raised with Mr Dunnicliff his concerns about the first sentence of the third paragraph of the 3 December 2019 feedback notes he had prepared and provided to Ms Clark. So far as Mr Vansetten could tell, Mr Dunnicliff appeared to agree that he should amend the feedback notes.  Mr Vansetten believed from their conversation that Mr Dunnicliff would amend the feedback notes and provide the amended version to Ms Clark, as his CMC, for consideration during his case review.

14. On 6 December 2019, Mr Vansetten met with Ms Clark to provide her with his written submissions.  Upon enquiry, she told Mr Vansetten that she had not had any contact with Mr Dunnicliff since the hearing, and that he had not given her any amended feedback notes.  Mr Vansetten told her that he was concerned both about the general lack of information he had been given in relation to his case review and about the (as yet uncorrected) inaccuracy of the feedback notes.

15. On this occasion, Mr Vansetten also provided Ms Clark with a copy of his written submissions, which were three pages in length. Mr Vansetten’s submissions commenced by confirming his requests that he be transferred to the APC as soon as possible, and that his security rating be reduced from “low 24” to “low 14”.  In support of his request, Mr Vansetten said:

    In relation to my request for transfer, I note that I have currently served just over 9-years and 6-months of a 9-year 9-month non-parole period.  I believe APC will be beneficial to my rehabilitation and reintegration by giving me increased access to my support network, the ability to obtain a driving licence, and access to the Work Ready Release Ready program.  Further I will explore further study options for myself at APC and future employment opportunities.  I am already a low security prisoner, making me eligible for a transfer without any point reduction.

16. Mr Vansetten’s submissions then listed and described a number of his educational and work achievements while in prison, including his successful completion of the Making Changes and LWV programs.  As to the LWV program, he described his active participation in that program and hence why he took issue with the reference to him being “resistant to discuss certain aspects of himself” in Mr Dunnicliff’s feedback notes.  Mr Vansetten added that he believed that “this issue was deemed to be rectified with the facilitator” (being a reference to what he understood was Mr Dunnicliff’s intention to amend his feedback notes).

17. Mr Vansetten concluded his written submissions by observing that despite his September 2019 request to the SMU for the information that would be considered on his case review, he had received no such information and was thus unsure what concerns may be presented to the SOC for its consideration.  He also mentioned the similar concerns he had expressed in respect of earlier case reviews.

18. On 16 December 2019, Mr Vansetten was given a revised version of Mr Dunnicliff’s feedback notes.  As anticipated, the sentence that Mr Vansetten had challenged had been deleted; it was replaced with a statement that “[d]espite an extensive history of antisocial behaviours, [Mr Vansetten] presented as being highly aware of prosocial expectation of himself moving forward, and verbalised a commitment to do so.”

19. Mr Vansetten’s case review was scheduled for consideration by the SOC at its meeting on 17 December 2019.  That meeting was chaired by Ms Swan.  The minutes record that seven committee members attended the meeting.  In relation to Mr Vansetten’s case review the minutes state:

    SOC note May 2019 and December 2019 written submissions.

    SOC note completion of LWV and recommendation for LOW 2 (14) and placement at APC.

    SOC request personality assessment to be completed and MGP to arrange psychiatric review to assist SOC in assessment of placement options.

    SOC defer decision pending completion of the LWV post-treatment report and personality and psychiatric assessment information.

20. Mr Vansetten’s case review was next scheduled for consideration by the SOC at its meeting on 30 January 2020. 

21. On 19 December 2019, Ms Clark informed Mr Vansetten that the SOC had met to consider his case review, and that Mr Dunnicliff had attended that meeting.  She also told him that the SOC had deferred its decision for two reasons, namely to obtain a psychiatric report and a finalised post-treatment report from Mr Dunnicliff confirming Mr Vansetten’s participation in the LWV program.  Mr Vansetten was not at that point given any further information as to the material considered by the SOC, or the reasons why these reports had been sought.

22. On 22 December 2019, Mr Vansetten wrote to the Director of the SMU indicating his desire to arrange his own psychiatric assessment from a practitioner of his choice, and to that end sought clarification of the specifics of the psychiatric assessment required by the SOC.  The Director of the SMU responded by letter dated 7 January 2020 in terms which merely reiterated the SOC request for further information, including a psychiatric assessment, so as to enable it “to make a full and appropriate assessment” of Mr Vansetten’s suitability for a placement at a low security facility such as the APC (having regard to Mr Vansetten’s offending and the paramountcy of community safety).

23. In a further letter to the Director of the SMU dated 20 January 2020, Mr Vansetten repeated his request for information as to the need for a psychiatric assessment, and as to the matters it was intended to address, given that there had not been any concerns raised about his mental health for a number of years (following earlier treatment that he had received and which had been the subject of reports). 

24. Having received no response, he wrote again to the Director of the SMU in a letter which was dated 29 January 2020 and given to Ms Clark that day.  This letter reiterated his concerns about the SOC’s request for personality and psychiatric assessment reports, and sought clarification and information that would enable him to address whatever concerns the SOC may have had.

25. As mentioned, the next meeting of the SOC was scheduled for 30 January 2020. During the course of these proceedings, Mr Vansetten has had access to the Offender Plan document from the Department’s JIS records which it would seem was before the SOC when it held that meeting and made its Determination. In addition to some formal details in relation to Mr Vansetten and his imprisonment, this document included the following:

    ·    Under the heading “Behaviour”, Mr Vansetten was described as being an easily managed prisoner, who was polite and respectful to staff members.  There was reference to Mr Vansetten having no negative case notes whilst at Mount Gambier prison; being well prepared for his case review and polite throughout; and having submitted a letter which would be emailed to the SOC for its consideration.

    ·    A notation that Mr Vansetten had not returned any positive drug tests since his incarceration.

    ·    Under the heading “Core programs”, reference was made to his completion of the LWV program, and to him having been “very punctual to sessions and very involved in group sessions”.  It was noted that a report was expected to be complete in early February.  There was then a further summary in the same terms as the 3 December 2019 feedback notes that had been provided by Mr Dunnicliff (and hence including the sentence that Mr Vansetten had challenged).

    ·    A summary of some of the educational courses that Mr Vansetten had completed.

    ·    Under the heading “Offender Comments”, there was a note that Mr Vansetten was concerned about his placement at Mount Gambier prison, and that “[h]e would like to be considered for placement at APC as soon as possible to be able to be around his support network and prepare to get a job and continue with his study.  He would like to transfer to APC before his LWV report is complete to start his reintegration into the community”.

    ·    Under the heading “Recommendation”, the CRC’s recommendation was summarised as “[a] points reduction of 10 due to completing the LWV program, as such and be considered for APC placement.  Security rating Low 2 with 14 points.”

26. The 30 January 2020 meeting of the SOC was chaired by Ms Mills.  The minutes again record that seven committee members attended the meeting, albeit that only three of the committee members attending on this occasion attended the previous hearing.  In relation to Mr Vansetten’s case review, the minutes record:

    SOC reviewed current Case Review in detail and endorse to remain LOW 1 (24) Security Rating and at MGP.  SOC endorse prior decision of the SOC for a personality assessment and psychiatry review.

    SOC note correspondence received from Mr Vansetten and the request for further information in relation to the personality assessment and psychiatric review.  SOC advise that a detailed response will be provided to Mr Vansetten by the SOC delegate to address his queries.

    SOC note Parole hearing scheduled on 5 March 2020.

27. Consistently with the above, Ms Mills’ evidence was that as a result of both meetings, the SOC’s decision in relation to Mr Vansetten’s transfer was that he should remain at the Mount Gambier prison, pending the provision of three reports; namely, a post-treatment report regarding Mr Vansetten’s participation in the LWV program, a psychiatric report and a personality assessment report.

28. By letter dated 6 February 2020, Ms Mills wrote to Mr Vansetten explaining the outcome of his case review.  The letter was in the following terms:

    I wish to acknowledge receipt of your letters dated 20 January 2020 and 29 January 2020.  These were tabled at the Serious Offender Committee on 30 January 2020 for discussion with an action taken for the Chair to provide you with written feedback.  In your letters, you have requested further information as to the purpose of the psychiatric and personality assessments and you have also noted some concerns in relation to these assessments. Your request for further information and wish to understand the reasons for these assessments is understandable and I will endeavour to address your queries as best possible.

    Please be advised that at the Serious Offender Committee (SOC) meeting held on 17 December 2019, your case was discussed in significant detail.  The SOC reviewed your Case Review, noted your completion of the Living Without Violence (LWV) program and also noted your prior and current status as a Low Security prisoner having been placed in a low security setting previously. At that meeting held on 17 December 2019, the SOC was asked to consider your suitability for the Adelaide Pre-Release Centre (APC).  The SOC sought further information in order to be able to make a decision, including the LWV post-treatment report, a personality assessment and psychiatric assessment.

    The reason the SOC is seeking personality and psychiatric assessments is in order to understand the progress you have made throughout your sentence, specifically to consider whether the factors that were relevant at the time of your offending are still relevant for the SOC to consider as part of your reintegration needs.

    It was noted by the Honourable Justice Kourakis at the time of sentencing for you that it was “clear that you were psychologically distressed.  You were radically disinhibited by an extraordinarily high blood alcohol level which would have substantially impaired your capacity to reason rationally.  Your mental faculties were also possibly impaired by the effects of more permanent brain injury caused by years of alcohol and amphetamine abuse … In that mentally disordered state, your resentment of police officers arising out of your long history of offending and contact with them appears to have developed into paranoia.” The SOC notes your prior engagement in rehabilitation programs; however, it would be prudent of the SOC to determine either the presence or absence of the factors linked to your offending in order to develop an appropriate plan going forward.

    It should not be assumed that progression of prisoners to any facility, including the Adelaide Pre-Release Centre, occurs as a matter of course or standard process.  Rather, careful consideration is given to prisoner placements in order to match the needs of the prisoner to the role and function of the facility they are placed.  As such, these further assessments, in addition to the LWV post-treatment report, will inform what areas you may require assistance with as well as providing comprehensive and up to date information on your psychological and psychiatric health.  Upon receipt of all information, the SOC will make a determination as to the most appropriate prison placement in order to assist you as best possible as you progress through your sentence.

    As these pending assessments will be of significant assistance to the SOC and your reintegration planning, you are encouraged to actively participate in the personality and psychiatric assessments due to be conducted by the Mount Gambier Prison (MGP) Psychologist and the visiting Psychiatrist from Forensic Mental Health Services respectively.  I note in your correspondence that you have indicated a desire to arrange your own practitioner to conduct assessments – although this is not considered necessary, you are welcome to do so via a professional visit request at your own expense should you wish.  The SOC will still request the assessments be conducted by the MGP Psychologist and Psychiatrist from Forensic Mental Health Services.  I am advised the MGP Psychologist has already approached you to commence this process.

    Your continued engagement in your progression through the correctional system is welcomed and I encourage you to liaise with your Case Management Coordinator with any further queries or concerns.

1. Mr Vansetten received this letter on 13 February 2020, by which time he had already commenced these proceedings.

   The May 2020 case review

2. By letter dated 5 May 2020, Mr Vansetten was notified of a meeting with the CRC on 19 May 2020 for the purposes of his next case review.

3. Mr Vansetten attended the meeting on 19 May 2020 which was chaired by Patrick Cailler, as Mr Vansetten’s CMC.  According to Mr Vansetten, he was not provided with any information in advance of that meeting, or indeed during the course of the meeting.  However, during the meeting he was informed by Mr Cailler that he would recommend a reduction of Mr Vansetten’s security rating to 14 points, and that he be transferred to the APC.  This accorded with what Mr Vansetten wanted.  Mr Vansetten sought, and was given, some time to follow up his requests for information and to prepare written submissions.

4. In relation to the three reports that the SOC had requested in the previous review, Mr Vansetten was provided with a copy of a Personality Assessment Inventory Clinical Interpretive Report on 21 May 2020, and a psychiatric report prepared by Dr Haeney on 22 May 2020.  And on 27 May 2020, in response to an application made by Mr Vansetten in February 2020 under the Freedom of Information Act 1991 (SA), he was provided with a redacted copy of the post-treatment report in relation to his participation in the LWV program.

5. On 1 June 2020, Mr Vansetten provided his written submissions in relation to his case review to Mr Cailler.

6. Mr Vansetten’s case review was considered by the SOC at its meeting on 4 June 2020.  The meeting was chaired by Ms Swan.  While Mr Vansetten’s desire to be transferred to the APC, and his submissions in support of that, were noted, the determination made at the 4 June 2020 meeting was that it would be appropriate for Mr Vansetten to be transferred to Mobilong prison so that he could “fully access vocational and educational opportunities”.

7. Mr Vansetten was informed of this determination on 10 June 2020, although he says that he was not given any intelligible reasons for the decision that had been made.

8. By letter dated 18 June 2020, Mr Vansetten sought an internal review of the 4 June 2020 determination.  This request was considered by the SOC at its meeting on 2 July 2020. This meeting was again chaired by Ms Swan.  Mr Vansetten’s letter of 18 June 2020 was noted, but the earlier determination made on 4 June 2020 was confirmed.

   These proceedings for judicial review

9. Mr Vansetten commenced these proceedings prior to the 30 January 2020 Determination. He sought the Court’s intervention on the basis of what he contended had been a failure to afford him procedural fairness. However, following notification of the Determination made on 30 January 2020, he amended his claim to challenge the Determination itself.

10. As amended, his claim relies upon the following six grounds of review:

    1. The Determination contains jurisdiction error due to the SOC misapprehending the nature of the duties required to be discharged under s 23 in order to make the Determination (Ground 1).

    2.   The SOC failed to observe the principles of procedural fairness in that it:

    2.1failed to disclose to Mr Vansetten at an appropriate time the critical issues on which the Determination could turn and/or the material likely to be considered (Ground 2);

    2.2took representations from a party (Mr Dunnicliff) behind the back of Mr Vansetten, thereby creating the risk of prejudice (Ground 3);

    2.3failed to allow Mr Vansetten an opportunity to satisfy the requirements set by the SOC to make a decision to transfer him to a low security prison (Ground 4);

    2.4ordered the publishing and furnishing of a report for consideration without disclosing that report to Mr Vansetten to allow him to comment on any adverse material contained within it (Ground 5).

    3. The SOC failed to consider all relevant material including the outcome of prior decisions made against Mr Vansetten under s 23, the permissions granted to him to leave prison grounds, and reports of past psychological and rehabilitative treatments and expert reports (Ground 6).

11. As mentioned, the State seeks summary dismissal of Mr Vansetten’s claim, both on the basis of a lack of merit in the six grounds for review, and on the basis of the unavailability of the relief sought.

    Principles governing summary dismissal

12. As mentioned, under r 256.5(3)(a) of the Uniform Civil Rules, the Court must dismiss Mr Vansetten’s action for judicial review “unless the Court is satisfied that there is a reasonable basis” for it.  This reflects the test that was previously applicable under r 200C of the Supreme Court Civil Rules 2006 (SA).

13. I note that the State’s application also seeks the Court’s intervention under r 144.2 of the Uniform Civil Rules, which empowers the Court to enter summary judgment if there “is no reasonable basis for prosecuting” the claim.

14. While there is a slight difference in wording, there is no practical difference between these two tests.  Speaking generally, and in accordance with the reasons of the High Court in Spencer v Commonwealth,[1] the power to determine an action summarily should not be exercised lightly.  Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success.  While the Court need not be satisfied that the action is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the court considers that it is unlikely to succeed.  However, beyond these very general guidelines, courts should focus upon the words used in the rules and avoid applying any judicial gloss.

    [1]    Spencer v Commonwealth (2010) 241 CLR 118 at [24]-[26] (French CJ and Gummow J), [52]-[60] (Hayne, Crennan, Kiefel and Bell JJ).

15. I also observe that while the same cautionary principles apply, the Court’s power to summarily dismiss proceedings extends to situations in which the respondent challenges the applicant’s entitlement to discretionary relief.  If the Court is satisfied that, even if a ground of review were made out, there is no reasonable basis for it to exercise its discretion to grant the relief sought, then the Court can and should dismiss the applicant’s claim.[2]

    [2]    Davies v Minister for Urban Development and Planning (2011) 109 SASR 518 at [44]-[45]; Plenty v Attorney-General (SA) [2013] SASC 35 at [19].

    Ground 1: misapprehension of the CE’s obligations under s 23

16. In contending that the CE (through the SOC) misapprehended, or otherwise failed to discharge, his obligations under s 23(1) of the Correctional Services Act, Mr Vansetten emphasised that s 23(1) obliged the CE (or his delegate) to not only “assess the prisoner and his or her circumstances”, but also “determine whether or not the prisoner should be transferred to some other prison.” In other words, the section involves a two-fold task of both undertaking an assessment and making a determination.

17. The essence of Mr Vansetten’s complaint under his first ground of review is that the CE (through the SOC) misunderstood, or otherwise failed to discharge, this dual nature of the obligation under s 23. He contends that the SOC in effect did no more than undertake a partial assessment before then deferring until some later occasion its determination of whether Mr Vansetten should be transferred to another prison. In particular, he contends that the SOC’s requests for further information (namely, the post-treatment, personality assessment and psychiatric reports referred to in the minutes of the SOC meetings on 17 December 2019 and 30 January 2020) demonstrate that the SOC did not undertake a full or proper assessment, but rather simply enabled the default position that he remain in Mount Gambier prison to prevail pending some future determination.

18. I do not accept Mr Vansetten’s characterisation of what occurred. I do not agree that it follows from the request for further information that the SOC did not undertake an assessment within the meaning of s 23(1). Particularly in a context where that section contemplates and requires regular assessments, there is nothing inconsistent with the SOC completing an assessment on the information then available to it, yet recognising that it might be assisted in a future assessment by further information of the type requested here. Further, while the practical effect of the SOC’s approach was that Mr Vansetten would remain where he was, I do not think that it follows that no determination was made.

19. I accept that no determination was made at the 17 December 2019 meeting, but I think it is clear that a determination was made at the 30 January 2020 meeting.  In my view, that is the only inference that can be drawn from the minutes of that meeting, and the subsequent letter to Mr Vansetten dated 6 February 2020.  I do not consider that the mere fact that the SOC did not complete the review on 17 December 2019, and indeed sought further information,[3] stood in the way of the SOC completing the assessment and making a determination at its subsequent 30 January 2020 meeting.  In my view, it was entitled to do so on the material then before it, and without waiting for the further information that it had earlier requested.

    [3]    Which the Director of the SMU, in her letter of 7 January 2020, described as information sought “to make a full and appropriate assessment”.

20. In my view, there is no reasonable basis for impugning the State’s characterisation of what occurred as the SOC undertaking an assessment on the information available to it, and reaching a determination on the basis of that material that Mr Vansetten should remain at Mount Gambier prison. I do not think the request for further information provides a reasonable basis for contending that the SOC failed to undertake an assessment, or make a determination, for the purposes of s 23 of the Act. It follows that I am not satisfied that there is a reasonable basis for Mr Vansetten’s first ground of review.

    Grounds 2 to 5:  failure to afford procedural fairness

21. In his second to fifth grounds of review, Mr Vansetten complains that he was not afforded procedural fairness. 

22. By way of an overview of Mr Vansetten’s complaints under this heading, he makes both general and specific complaints.  Mr Vansetten makes the general complaint that he was simply not given the information he needed in order to understand the basis for the SOC’s determination and hence to provide meaningful representations to the SOC.  He also makes the more specific complaint that he was never informed of what Mr Dunnicliff told the SOC when he attended its meeting on 17 December 2019.  Mr Vansetten contends that it can be inferred both from the fact that the SOC reached a different determination from the recommendation of the CRC, and from the SOC’s request for further information of that type sought, that it must have taken into account some concerns or issues to which Mr Vansetten was not privy and hence had no opportunity to respond.

23. The State contends that there is no basis for contending that there was any failure to afford Mr Vansetten procedural fairness. While accepting that there was an obligation to afford procedural fairness (as reflected in the terms of ss 23(4) and (5) of the Act), the State contends that it was sufficient for this purpose that it inform the prisoner in general terms of the matters likely to be of significance to its assessment and determination. It contends that having regard to the nature of the power to make assessments and determinations under s 23(1), its obligations as to the provision of information are fairly rudimentary. The State also contends that there is no basis for contending that the SOC took into account any concerns or issues to which Mr Vansetten was not privy, or to which he did not otherwise have an opportunity to respond.

24. In support of its contentions as to the limited content to be given to its obligation to afford procedural fairness in the present context, the State relied upon the caution that the courts have shown in relation to decisions made in relation to the management of prisons and prisoners. 

25. It is true that historically there has been a reluctance to intervene in such situations, due in part to a deference to the complex and sensitive task of managing prisons and in part to the limited rights that remain vested in prisoners.[4]  Some authorities suggested that intervention might be confined to cases involving decisions made in bad faith.[5]

    [4]    Flynn v The King (1949) 79 CLR 1 at 8; Bromley v Dawes (1983) 34 SASR 73 at 106-108.

    [5]    McEvoy v Lobban (1989) 48 A Crim R 412 at 413, 418.

26. However, perhaps in part as a consequence of the more comprehensive statutory regimes governing the management of prisons and prisoners, more recent authorities have demonstrated a preparedness to apply the ordinary principles governing judicial review to decision-making in the prison context.[6] 

    [6]    Page v The State of South Australia (1997) 95 A Crim R 25 at 27; Fyfe v The State of South Australia [2007] SASC 272 at [8]-[11].

27. Whilst I do not think that there is any doubt that these ordinary principles do apply in this context, the application of these principles must nevertheless accommodate themselves to the complex and sensitive decision-making involved in the management of prisons and prisoners.  As Martin J said in Fyfe v The State of South Australia:[7]

    There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision.  Prisoners are in a position of particular disadvantage.  Any abuse of power by prison authorities is unacceptable and can often have serious ramifications.  At the same time, however, the limits of the Court’s jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions.  The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the court surroundings.

    [7]    Fyfe v The State of South Australia [2000] SASC 84 at [18].

28. Some decisions made in the prison context will be so bound up in the operational and management considerations to which Martin J referred in the above passage that there will be little scope for intervention in accordance with ordinary principles.[8] By way of example, and depending upon the circumstances, a direction made under s 25 of the Act to transfer a prisoner between correctional institutions, or a direction under s 36 of the Act to segregate one prisoner from the other prisoners within a correctional institution, may leave little scope for intervention in accordance with the ordinary principles governing judicial review.

    [8]    Anderson v Pavic [2005] VSCA 244 at [32].

29. However, in the case of other decisions – for example, where the focus is on the rights and interests, or discipline and punishment, of individual prisoners – there may be greater scope for intervention. 

30. In the context of determinations made under s 23(1) of the Correctional Services Act, the State concedes that they are amenable to judicial review, and subject to an obligation to afford procedural fairness. Indeed, there can be no doubt about the obligation to afford at least some level of procedural fairness given the statutory prescriptions in ss 23(4) and (5) to the effect that the prisoner must be given “an opportunity to make representations in person” (s 23(4)), and “may make written recommendations in respect of his or her assessment” (s 23(5)), to the CE or a committee established pursuant to s 23(2).

31. But, in contending for a limited content to this obligation, and whilst acknowledging that the considerations listed in s 23(3) require a focus upon the circumstances of the individual prisoner, the State emphasises two matters.

32. The first is the limited significance of a determination under s 23(1) for an individual prisoner. Even if there is a determination under that section that they should be transferred to a particular institution, this does not generate any right in the prisoner to be transferred. The determination is more in the nature of a decision that the transfer would be in the interests of the particular prisoner, and a recommendation that the transfer occur. As such, the determination may well significantly inform the (quite separate) decision whether or not a transfer of that prisoner is directed under s 25, but the s 23 determination does not bind the CE or otherwise dictate the outcome of any decision or exercise of power under s 25. Further, and in any event, while a prisoner may well have an interest in the institution within which they reside (for example, for reasons related to the location of their families or the availability of educational programs or work opportunities relevant to their rehabilitation), it cannot be said that prisoners have rights or legitimate expectations in this respect.

33. The second matter emphasised by the State is that despite the focus upon the circumstances of the individual, the assessment and determination under s 23 is nevertheless properly understood as an aspect of, and intended to assist in the facilitation of, the management of prisoners within the prison system generally. It involves taking at least some account of the difficult and sensitive considerations referred to by Martin J in Fyfe v The State of South Australia.[9] 

    [9]    Fyfe v The State of South Australia [2000] SASC 84 at [18].

34. Whilst the matters relied upon by the State are relevant considerations in determining the extent of the obligation of procedural fairness, at the same time, as Mr Vansetten points out, Parliament clearly intended to confer a meaningful right upon prisoners to make representations in person and in writing in relation to their case reviews under s 23(1). And for this right to make representations to be meaningful, the prisoner must be given at least some information about the matters to be addressed.

35. In Kioa v West,[10] Mason J referred to the need to bring to a person’s attention the critical issue or factor on which an administrative decision is likely to turn so that he or she may have an opportunity of dealing with it.[11]  Brennan J spoke of an opportunity to address the relevant matters adverse to a person’s interests which the repository of the relevant power proposes to take into account in deciding upon its exercise of that power.[12]

    [10] Kioa v West (1985) 159 CLR 550.

    [11] Kioa v West (1985) 159 CLR 550 at 587.

    [12] Kioa v West (1985) 159 CLR 550 at 628.

36. While these general statements are of assistance, the particular content to be given to the requirement to accord procedural fairness will ultimately depend upon the facts and circumstances of the particular case, including the statutory framework within which the relevant decision falls to be made.[13]  The statutory prescription of some level of procedural fairness will be relevant to, but not necessarily exhaustive of, the content in respect of a particular decision.  It is neither possible nor desirable to adopt any rigid or formulaic approach; the ultimate question must always be whether or not the hearing or inquiry was, on a practical assessment, conducted fairly.[14]

    [13] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].

    [14] ReMinister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38].

37. In Fyfe v The State of South Australia,[15] in considering the content of the obligation of procedural fairness in the context of a decision to separate a prisoner under s 36 of the Correctional Services Act, Kelly J emphasised that it was not necessary for the prisoner to be provided with exact copies of all documentation relied upon by the decision-maker.  Applying the approach of Mason J in Kioa v West, her Honour said that what was required was that the prisoner have “sufficient information to understand the case he must meet”.[16] 

    [15] Fyfe v The State of South Australia [2007] SASC 272.

    [16] Fyfe v The State of South Australia [2007] SASC 272 at [40].

1. In my view, a similar approach is apposite in the present decision-making context. I do not think it was necessary for Mr Vansetten to be provided with all of the documentation available to the CRC or SOC when undertaking an assessment and determination under s 23(1) of the Act. I have set out earlier in these reasons the evidence of Ms Mills as to the general approach of the Department to the provision of information to prisoners in connection with their case reviews. In accordance with that evidence, I accept that there will often be sound reasons for not providing prisoners with documents of the type mentioned. In general terms, I also accept that it will often be sufficient for the purposes of affording procedural fairness that the prisoner be made aware, in the course of the CRC meeting, of the matters likely to be critical or important to the assessment and determination. In a context where the prisoner’s notification of their CRC meeting includes a list of the considerations to which regard must be had under s 23(3), this will ordinarily be sufficient to enable the prisoner to take advantage of the opportunity to make representations, both in person and in writing, as contemplated by ss 23(4) and (5). It will not be necessary to ensure that the prisoner is made aware of every detail and nuance of the relevant information available to the SOC. It will be sufficient that the prisoner is made aware of any matters which are adverse to them and are likely to be critical, or at least significant, to the outcome of their case review.

2. That said, I would sound a note of caution in respect of the approach described by Ms Mills.  I do not think it should be routinely assumed that no documentation should be provided to prisoners.  In my view, some assessment should be made of whether relevant documents genuinely raise management or operational matters, or are otherwise of a sufficiently sensitive nature, that they cannot be provided to the prisoner.  I would expect that there would be some documentation – such as reports prepared in relation to psychiatric assessments and educational programs – which could be provided to the prisoner, and which might assist in ensuring that they have an adequate opportunity to make representations in relation to the matters likely to be of significance to the SOC.

3. Indeed, it seems to me that reports of the type sought by the SOC in the present case (namely the personality assessment, psychiatric and post-treatment reports) are the very type of document that might need to be provided to the prisoner in order for there to be a proper opportunity to make representations as to the significance which should be attached to them. However, as none of these reports existed prior to the SOC’s Determination on 30 January 2020, their unavailability to Mr Vansetten at the time he made his representations cannot sustain any allegation of a failure to afford procedural fairness in respect of that Determination. For this reason, I am not satisfied that there is any reasonable basis for the complaint in ground 5 (which, as developed in submissions, focussed upon the unavailability to him of the post-treatment report in relation to his participation in the LWV program).

4. Ground 3 involves a complaint about Mr Dunnicliff’s attendance before the SOC meeting on 17 December 2019, and the failure to inform Mr Vansetten of what information he gave the SOC on that occasion.

5. In considering this complaint, I accept that Mr Dunnicliff’s views had the potential to affect the SOC’s determination.  As explained earlier, he was the lead facilitator of the LWV program that Mr Vansetten had just completed.  Significantly, the very reason Mr Vansetten had undertaken this program was as a result of the determination following his May 2019 case review recommending that he be transferred to Mount Gambier prison for that purpose. Indeed, on Mr Vansetten’s evidence, he had been told that upon his successful completion of this program, and assuming he had otherwise been of good behaviour, he would be considered for transfer to the APC at his next case review.  Consistently with this understanding as to the potential significance of Mr Dunnicliff’s views, Mr Vansetten arranged for his attendance at the meeting of the CRC on 4 December 2019.  He also obtained the feedback notes from Mr Dunnicliff which have been referred to earlier in these reasons, and which were provided to Ms Clark, as Mr Vansetten’s CMC.

6. On the basis of these feedback notes, and what transpired during the CRC meeting that he attended, it did not seem to Mr Vansetten that there were any matters of concern arising in relation to his participation and completion of the LWV program.  Whilst there was the one sentence of concern to him in the feedback notes, he believed he had addressed this through his 6 December 2019 written submissions and Mr Dunnicliff’s indication that he would amend the feedback notes.  Mr Vansetten was reassured in his views by the recommendation of Ms Clark, his CMC, that he be transferred to the APC.

7. It is against this background that Mr Vansetten complains about Mr Dunnicliff’s attendance at the 17 December 2019 meeting of the SOC (which Mr Vansetten was not given the opportunity attend).  He queries why it was necessary or appropriate for Mr Dunnicliff to attend this meeting in circumstances where he had already expressed his views in the feedback notes, and to the CMC at the CRC meeting.  Further, given that the SOC then requested a post-treatment report in relation to Mr Vansetten’s participation in the LWV program, and ultimately declined to support the CRC’s recommendation that he be transferred, Mr Vansetten says that it can be inferred that Mr Dunnicliff expressed some views which were adverse to, or at least raised some concerns about, Mr Vansetten.

8. In the circumstances I have just outlined, I have some sympathy for Mr Vansetten’s concerns about Mr Dunnicliff’s attendance at the SOC meeting on 17 December 2019.  In my view, it would have been better had there not been additional communication between Mr Dunnicliff and the SOC, given that he had already had the opportunity to make his views known through the feedback notes and to the CRC in Mr Vansetten’s presence.  But ultimately I do not think a failure to afford procedural fairness could be established unless there is a basis to find that Mr Dunnicliff said anything on that occasion that went beyond what he had said previously, reflected adversely upon Mr Vansetten, and had the potential to significantly affect the SOC’s determination.[17] 

   [17] South Australia v O’Shea (1987) 163 CLR 378 at 389; Watson v South Australia (2010) 208 A Crim R 1 at [113]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [43]-[44].

9. Whilst it appears that the change to Mr Dunnicliff’s feedback notes was not reflected in the Offender Plan, and may not have been brought to the SOC’s attention, I do not think this matters.  To the extent that the sentence in question was a significant matter for the SOC, Mr Vansetten’s concerns and explanation were set out in his written submissions of 6 December 2019.

10. Further, I do not think there is any other basis for inferring that Mr Dunnicliff said anything to the SOC that was significant and adverse to Mr Vansetten. To the extent that the SOC’s decision not to accept the CRC’s recommendation as to Mr Vansetten’s transfer, and to require further information including a post-treatment report, requires explanation, the letter of 6 February 2020 suggests it was merely a reflection of a cautious approach to Mr Vansetten’s progress rather than any particular or identified concern that had been brought to its attention. I see no reason to not accept at face value the explanation for the Determination given in this letter. In summary, I consider that the basis for Mr Vansetten’s complaint in ground 3 ultimately does not rise above speculation, and as such I am not satisfied that there is a reasonable basis for it.

11. I am also not satisfied that there is any reasonable basis for the balance of Mr Vansetten’s complaints as to a failure to afford procedural fairness (that is, grounds 2 and 4).

12. In part these other complaints rest upon a submission that it can be inferred from the SOC’s determination (and in particular, the fact that it did not accord with the CRC’s recommendation, and included a request for a psychiatric report) that the SOC must have had information or concerns about Mr Vansetten’s mental health that he was not given an opportunity to address.  However, as explained in the context of my consideration of the SOC’s request for a post-treatment report, it seems to me that on the basis of the 6 February 2020 explanation of the reasons for the SOC’s determination, the decision to seek this report was merely a reflection of a more cautious approach to Mr Vansetten’s progress rather than any particular concern that had been identified and hence which ought to have been brought to Mr Vansetten’s attention.  As such, the complaint relies upon a speculative rather than reasonable basis.

13. As for the residual, more general, complaint by Mr Vansetten, I do not think it rises any higher than that the SOC had documents and other information available to it which were not disclosed to Mr Vansetten.  But in light of my earlier articulation of the limited content of the obligation to afford procedural fairness, unless there is a reasonable basis for inferring that the SOC was provided with some information that was not only adverse to Mr Vansetten, but also with the potential to be critical, or at least significant, to the outcome of his case review, then the complaint will not justify judicial intervention.  I am not satisfied that there is a reasonable basis for any such inference.

    Ground 6:  failure to take into account relevant considerations

14. In support of his sixth ground of review, Mr Vansetten lists various matters which he contends ought to have been taken into account by the SOC, including:

    ·    earlier reports in relation to his psychological treatment and rehabilitation, including a post-treatment report in relation to his participation in the Making Changes program in 2018;

    ·    permissions granted to him to leave prison grounds, together with the reasons for them being granted and the records of his behaviour while undertaking tasks in the community;

    ·    records of his educational and work achievements while in prison, and reports in relation to the same;

    ·    records of his behaviour and character as evidenced by prison records; and

    · past assessments and determinations made in relation to him under s 23(1) of the Correctional Services Act, and in particular the fact that they had addressed his earlier psychiatric needs and treatment but did not suggest any ongoing concerns in that regard.

15. At a general level, I accept that information in respect of each of these topics was potentially relevant to the SOC’s consideration of Mr Vansetten’s case review.  However, just because these were all relevant topics or sources of potentially relevant information, it does not follow that the SOC was required to have close regard to each and every item of evidence encompassed within the topics or categories of information identified by Mr Vansetten.  In my view, the SOC was entitled to approach its decision-making at a more general level than is contemplated by Mr Vansetten’s submissions.  Further, by reason of its access to, amongst other sources of information, the Offender Plan and Mr Vansetten’s submissions (and correspondence), it is apparent that the SOC did have before it a good deal of information in relation to the matters listed by Mr Vansetten.  Finally, and critically, I do not think there is any basis for finding or inferring, from the 6 February 2020 letter or otherwise, that the SOC overlooked any material matter in its consideration of Mr Vansetten’s case review.

16. Indeed, as developed during his submissions, Mr Vansetten’s complaint under this ground ultimately became not so much that it could be inferred that the SOC overlooked any particular relevant consideration, but rather that it could be inferred that the SOC must have either not considered all relevant factors, or alternatively it reached a conclusion that was arbitrary or irrational. In the ultimate analysis, Mr Vansetten’s contentions under this heading were tantamount to an attack upon the merits of the Determination. While there may well be grounds for Mr Vansetten to disagree with the Determination, it is another thing altogether to conclude that there are grounds for concluding that the Determination was irrational or unreasonable in the sense necessary to permit judicial intervention.

17. Bearing in mind the nature of a determination under s 23(1) and the broad nature of the considerations and judgments inherent in such a determination, I am not satisfied that there is a reasonable basis for this Court to intervene either on the basis that the SOC failed to take into account a relevant consideration, or that the decision was irrational or unreasonable in the relevant sense.

    No reasonable basis for the relief sought

18. Given my conclusion that there is no reasonable basis for the six grounds of review relied upon by Mr Vansetten, it is not strictly necessary for me to consider the State’s submissions as to the availability of the relief sought.  However, because I have reached the view that they disclose an alternative and sufficient basis for dismissing the action, I consider it appropriate for me to do so.

19. The State makes two broad submissions under this heading. The first is that by reason of the limited significance of a determination under s 23(1), it does not produce any foreseeable consequence, or have any legal effect, in respect of which the relief sought might lie. The second is that any legal effect or consequence that the Determination in this case might have had has been overtaken by the subsequent determination made following Mr Vansetten’s May 2020 case review, with the result that this Court would inevitably withhold the relief sought on the discretionary ground that it would be futile.

20. As to the first of these submissions, the State contends that an assessment and determination under s 23(1) has no legal or foreseeable consequence; it does not confer upon the prisoner any right, interest or legitimate expectation. Even if a determination were made that a transfer should occur, for the reasons explained earlier, this does not confer any right or legitimate expectation on the part of the prisoner that the transfer will occur, let alone that the prisoner’s reasons for wanting the transfer (for example, enhanced access to educational or work opportunities, and ultimately better prospects of a grant of parole) will be realised or fulfilled. Both the decision to transfer the prisoner, and any subsequent decision to grant the prisoner access to educational or work opportunities, or to grant the prisoner parole, involve exercises of power quite separate and distinct from the assessment and determination process provided for in s 23(1). Even though a determination may well be influential in deciding whether a prisoner is in fact transferred, as explained earlier, the determination does not dictate the outcome of that separate decision. There is no requirement under the legislation that the CE give effect to a determination under s 23(1).

21. In support of its first submission, the State relies upon Ainsworth v Criminal Justice Commission.[18]  In that case, the High Court held that relief in the form of certiorari was not available by reason of the lack of any legal consequence flowing from the adverse recommendation that was challenged.  However, the High Court did nevertheless hold that it was appropriate, on account of the claimant’s reputational interest, to grant a declaration to the effect that the recommendation was infected by a failure to afford procedural fairness.

    [18] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.

22. In the present case, for the reasons advanced by the State, I am inclined to think that certiorari would not lie to quash the Determination made under s 23(1). I also have some reservations about whether the Court would grant declaratory relief, as I do not think there is any close parallel with the reputational interests that ultimately sustained that relief in Ainsworth v Criminal Justice Commission.  However, I prefer not to express a concluded view on this application as to the unavailability of either certiorari or declaratory relief based solely upon the State’s first submission.

23. Turning to the State’s second submission as to the unavailability of the relief sought, there is no dispute that futility is a basis upon which a court might exercise its discretion to withhold relief.[19] In considering the potential operation of this principle in the present case, it is relevant that s 23(1) of the Correctional Services Act contemplates and requires that there will be regular assessments and determinations.  The legislation requires that they occur at least once a year, and in the case of a prisoner such as Mr Vansetten who is approaching eligibility for parole, the practice of the Department is to conduct them every six months.  The right to a further assessment and determination within a relatively short time of the challenged determination is a factor that would be relevant to any consideration by the Court of whether to exercise its discretion to withhold relief even if a ground for review was made out.

    [19] Public Service Association of SA Inc v Industrial Relations Commissioner of SA (2013) 115 SASR 413 at [4], [6], [57]; Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 at 204; Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [96], [130]-[131], [182]-[184].

24. Here, there is the additional consideration that the next assessment and determination (being the May 2020 case review) have already occurred.  Further, that subsequent determination was made after Mr Vansetten had been provided with copies of the three reports which have been the focus of his complaints (namely, the psychiatric report, the personality assessment report and the post-treatment report in relation to his participation in the LWV course), and an opportunity to make in person and written representations in relation to the same. 

25. In the circumstances, and as a matter of practical reality, the Determination sought to be challenged in these proceedings has been superseded by this subsequent determination. There would be no utility in requiring the SOC to reconsider its earlier determination given it has made a subsequent determination in the circumstances described. And while Mr Vansetten makes some complaints about the conduct of the May 2020 case review, the subsequent determination is not the subject of any formal challenge in these proceedings. In the circumstances, there would be no practical or legal utility in the relief sought.

26. While Mr Vansetten ultimately conceded that there would be no utility in ordering certiorari, he maintains that there would, or at least could, be some utility in granting a declaration. In this respect, he points to what he contends is a background, if not pattern, of breaches of procedural fairness in his case reviews under s 23(1) which he apprehends will continue to affect him unless and until the Court takes some formal step to mark its disapproval of the approach of the CE (through the CRC and SOC) to the obligations of procedural fairness under s 23(1) of the Act.

27. The difficulty with this submission is that even if (contrary to the views I have expressed above) the Court were ultimately persuaded that there had been a failure to afford procedural fairness in respect of the Determination made on 30 January 2020, that would be a conclusion reached on the particular facts and circumstances of that Determination. It would not be determinative of what might have been required in respect of past case reviews, or more relevantly, what might be required in respect of future case reviews. Mr Vansetten’s general dissatisfaction with previous assessments and determinations would not be a sufficient basis for granting relief, and the Court would not in these proceedings embark upon an enquiry as to whether or not there have been previous failures to afford procedural fairness merely for the purpose of deciding whether it should grant the relief sought.

1. Whilst I acknowledge there is some chance that the Court’s reasons in support of any conclusion that there had been a failure to afford procedural fairness might provide some general assistance and guidance as to what is to be expected in terms of procedural fairness in the context of future case reviews under s 23(1),[20] I do not think this would be a sufficient basis for granting declaratory relief in the circumstances of the present case. Indeed, in my view, given the recurring nature of the determinations under s 23(1), and the fact that the particular Determination under challenge in this case has already been superseded by a subsequent determination, I consider it almost inevitable that any relief that would otherwise have been available would be declined for discretionary reasons given its futility. The limited practical and legal consequences that flow from a determination under s 23(1), even if not precluding the relief sought, would nevertheless serve only to reinforce the Court’s preparedness to withhold relief on discretionary grounds.

   [20] See FAI Insurances Limited v Winneke (1982) 151 CLR 342 at 387.

2. It is for these reasons that I am not satisfied that there is a reasonable basis for a grant of certiorari or declaratory relief in Mr Vansetten’s favour even if the Court were to find that a ground of review had been made out.

3. Finally, I conclude by mentioning that in addition to certiorari and declaratory relief, Mr Vansetten seeks an order in the nature of prohibition preventing consideration by the CE (or his delegate) of the post-treatment report in relation to his participation in the LWV program until such time as it has been disclosed to him.  As Mr Vansetten has now been provided with this report, and indeed it was given to him prior to his May 2020 case review, this aspect of Mr Vansetten’s claim has been overtaken by events. 

   Conclusion and orders

4. For the reasons set out above, I am not satisfied that there is a reasonable basis for the applicant’s action for judicial review.  I order that it be summarily dismissed under r 256.5 of the Uniform Civil Rules.