Webb v Chief Executive, Department for Correctional Services

[2023] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

WEBB v CHIEF EXECUTIVE, DEPARTMENT FOR CORRECTIONAL SERVICES

[2023] SASC 42

Judgment of the Honourable Justice Bampton  

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

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

Application for summary judgment by respondent where applicant seeks judicial review of decision to regress him in the prison regime management system for failing to comply with directions to wear a mask during a COVID-19 outbreak at Mobilong prison, and breaching the contract he had signed for placement in the Ross unit at Mobilong – whether the decision to regress the applicant was made pursuant to s 24(2) of the Correctional Services Act 1982 (SA) – whether the conduct giving rise to the decision was an alleged breach of the Correctional Services Regulations 2016 (SA) – whether there is any reasonable basis for any grounds of review relied on by the applicant.

Held: Application for summary judgment granted – there is no reasonable basis for any ground of judicial review relied on by the applicant.

Correctional Services Act 1982 (SA) ss 7, 24, 42, 42A, 43, 44, 45, 46, 47, 83; Correctional Services Regulations 2016 (SA) reg 14, 15, 16, 18, 19, 22, 23; Legislation Interpretation Act 2021 (SA), referred to.
Kioa v West (1985) 159 CLR 550; National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296; Lymberopoulos v Police [2006] SASC 360; McEvoy v Lobban (1989) 48 A Crim R 412; Bromley v McGowan & Anor (1994) 178 LSJS 1; Fyfe v The State of South Australia [2000] SASC 84, considered.

WEBB v CHIEF EXECUTIVE, DEPARTMENT FOR CORRECTIONAL SERVICES
[2023] SASC 42

Civil: Application

1. BAMPTON J: Richard Webb is a prisoner detained at Mobilong Prison (“Mobilong”).  Mr Webb was, until 24 January 2022, accommodated in the Ross unit cottages at Mobilong.  On 24 January 2022, Mr Webb was regressed to the Angas unit cottages at Mobilong for failing to comply with verbal directions with respect to the wearing of masks and for breaching a contract he had signed for placement in the Ross unit.  The decision to regress him was made by a delegate of the Chief Executive (“the CE”) of the Department of Correctional Services (“the Department”). 

2. Mr Webb has sought judicial review of the decision to regress him, and the Department has brought an application for summary judgment arguing there is no reasonable basis for any ground of judicial review relied on by Mr Webb. 

   The regime management system overview

3. Prisoners who have been assessed as medium or low security are accommodated at Mobilong, an open campus style prison, comprising six units named Sturt, Light, Angas, Murray, Eyre, and Ross (“the units”). 

4. Prisoners detained in the custody of the CE of the Department pursuant to s 24 of the Correctional Services Act 1982 (SA) (“the Act”) are subject to the regime management system which sets the parameters of their day to day lives and privileges within the correctional institution in which they are detained. The rationale of the regime management is:[1]

   To enhance case management processes by ensuring prisoners are provided with opportunities to address offending behaviours and develop skills that will assist in leading a law-abiding lifestyle upon release back into the community.

   [1]    FDN 10, Exhibit MWD-1, at p 3 of Standard Operating Procedure; 047 — Regime Management (Current Version — 05) approved on 23 June 2021.

5. The regime management system is intended to provide opportunities for prisoners to participate in case management, fulfil the requirements of their sentence plan, and support them to achieve positive change.  Regimes are established by the General Manager of each correctional institution and can include the following regime levels:

   (a)induction regime;

   (b)basic regime;

   (c)standard regime;

   (d)enhanced regime; or

   (e)intensive management regime. 

6. Prisoner accommodation, meals, work, recreation, contact with other prisoners, telephone calls and incentives to progress through the regime system are managed under the regime management system.  Prisoners are placed on a regime that best suits their individual needs as well as their identified supervision requirements for effective management.  A prisoner’s progression or regression through the regime management system is largely determined by their behaviour. 

7. Each of the units has a standard regime that applies to prisoners placed in that unit.  The same standard regime applies to prisoners placed in the Sturt and Light units.  The standard regime that applies to prisoners placed in the Angas and Murray units is the same.  The Ross unit standard regime provides a greater level of privileges to, and less supervision of, prisoners allocated to the Ross unit compared to prisoners subject to the Angas/Murray unit standard regime. 

   The COVID-19 outbreak at Mobilong

8. Beginning on 31 December 2021 and continuing throughout January 2022, Mobilong was the site of a COVID-19 outbreak.  During that period, there was a significant increase in positive COVID-19 cases within Mobilong, with 298 positive cases identified.[2]  The SA Health Communicable Diseases Control Branch provided advice to the Department regarding measures to mitigate the spread of COVID-19.  Pursuant to that advice, all prisoners at Mobilong were provided with surgical masks and given verbal directions to wear masks when outside of their cells.  Flyers notifying of the need to wear masks were provided to prisoners.  Prison staff were also required to always wear masks whilst at Mobilong.

   [2] Affidavit of Michael Wayne Dent affirmed on 12 August 2022, FDN 10 at [19]. By reference to a letter from the General Manager to Mr Webb dated 7 April 2022 (FDN 4, exhibit RW-04), Mobilong accommodated 472 prisoners in April 2022. If the numbers of prisoners accommodated at Mobilong was approximately 472 at the time of the COVID-19 outbreak, around 60 percent of the prisoners were infected with COVID-19.

9. Mobilong was in complete lockdown when Mr Webb is alleged to have failed to comply with the directions of the prison staff members to wear a mask. 

10. Mr Webb, who is serving a life sentence, was accommodated in the Ross unit from 2016.  He signed a contract for placement within the Ross unit (“the contract”), which relevantly included the following:[3]

    1.I acknowledge that my placement in Ross Unit is a privilege, which may be withdrawn if my behaviour is deemed unacceptable in any way.

    …

    6.… agree to respect those with whom I will be living; respect the building and contents of the unit in which I am placed and to comply with any directions given to me by any prison staff member.

    (Emphasis added)

    [3]    FDN 10, exhibit MWD-7.

    Mr Webb’s regression within the regime system

11. On 24 January 2022, when Mobilong was no longer in complete lockdown, the decision was made to regress Mr Webb for failing to comply with verbal directions with respect to the wearing of masks and for breaching the contract (“the decision”).  Mr Webb’s regression involved him becoming subject to the Angas/Murray unit standard regime and moving from the Ross living unit to the Angas living unit.

    Mr Webb’s application for judicial review

12. On 14 July 2022, Mr Webb filed an application for judicial review complaining that the decision was made with jurisdictional error, breach of procedural fairness, misfeasance in public office, and negligence (“the judicial review application”).  The judicial review application is supported by his affidavits affirmed 17 June 2022[4] and 28 September 2022.[5] Mr Webb challenges the “denial, refusal of a judicial process requested under Correctional Services Act 1982, section 42A to 46”. Mr Webb seeks orders for:

    1.Certiorari: Quash the decision to deny judicial process.

    2.Prohibition: Judicial process be granted.

    3.Declaration: the Department grant legal rights and award judicial process.

    [4]    FDN 4.

    [5]    FDN 13.

    The Department’s application for summary judgment

13. By interlocutory application filed 12 August 2022,[6] the Department seeks summary judgment in respect of the judicial review application, arguing there is no reasonable basis for any ground of review relied upon by Mr Webb, nor any other relief sought by him (“the Department’s application”). The Department argues the decision was made pursuant to s 24(2) of the Act.

    [6]    FDN 8.

    The affidavit of Michael Wayne Dent, Mobilong General Manager

14. The Department’s application is supported by the affidavit of Michael Wayne Dent affirmed 12 August 2022 (“the Dent affidavit”).[7]  Mr Dent has been the General Manager of Mobilong since 24 January 2022 and has been employed within the Department for 19 years.  Mr Dent says he accessed the electronic record system maintained by the Department, the Justice Information System (“JIS”), in preparing the Dent affidavit. 

    [7]    FDN 10.

15. Exhibited to the Dent affidavit is a copy of the current version (as at the date of the Dent affidavit) of the standard operating procedure relating to the regime system approved 23 June 2021, titled Standard Operating Procedure “SOP‑047‑Regime Management” (“the SOP-047”).[8]  Clause 3.2.4 of the SOP‑047 provides as follows:

    [8]    FDN 10, exhibit MWD‑1.

    3.2.4Regime management should be used as part of the case management process to encourage prisoners to progress to the lowest level of supervision with respect to individual needs.  Therefore movement between an institution’s regimes must be linked to:

    a)    meeting established prisoner responsibilities and regime criteria;

    b)    review of behaviour against established standards;

    c)    a willingness to meet the requirements of sentence plan;

    d)    warnings that are case noted; and

    e)    incident reports.

    (Emphasis in original)

16. Clause 3.2.5 of the SOP-047 provides that prisoners (except those who progress from an induction regime and those placed on an intensive management regime following separation) must be provided with a change of regime notification (SOP 047-F001) for each regime progression and regression.  By reference to clause 3.2.8, a regime regression should take place when a prisoner is unwilling to meet the responsibilities or standards of behaviour of their current regime, or no longer meets the criteria required for the regime under which they are managed. 

17. Attached to the Dent affidavit are:

    (1)documents detailing the standard regime for the Angas/Murray unit and the standard regime for the Ross unit;[9] and

    (2)a copy of the proforma contract entered by prisoners placed within the Ross unit.[10] 

    [9]    FDN 10, exhibit MWD-2 and MWD-3.

    [10] FDN 10, exhibit MWD-4.

18. Mr Dent explains that decisions to progress or regress a prisoner onto a different regime and/or to move a prisoner from one unit to another within Mobilong are made pursuant to s 24(2) of the Act. Mr Dent states that s 24(2) of the Act empowers the CE, or a person holding a delegation from the CE,[11] to make a decision from time to time as seems expedient to the CE or delegate concerning:

    (a)placements of any particular prisoner or prisoners of a particular class in such part of the correctional institution in which they are detained; and

    (b)the establishment of regimes for work, recreation, contact with other prisoners, or any other aspect of the day-to-day life of prisoners; and

    (c)to vary any such regime. 

    [11] Section 7(2) of the Act empowers the CE to delegate to any officer of the Department any power or function vested in the CE.

19. Mr Dent deposes he is aware, pursuant to s 24(3) of the Act, that such decisions do not constitute a penalty for the purposes of the Act and as such, decisions under s 24(2)(a) are not subject to the appeal procedure prescribed by s 45 of the Act.

20. Mr Dent states he is aware:

    (1)pursuant to s 42A of the Act, the CE has discretionary power to act when the CE is satisfied a prisoner has committed a breach of the Correctional Services Regulations 2016 (SA) (“the Regulations”) to which s 42A applies, being a minor breach of the Regulations.

    (2)s 43 of the Act provides the CE with a discretionary power to charge a prisoner and conduct an inquiry when it is alleged that a prisoner has committed a breach of the Regulations, being a serious breach of Regulations.

    (3)s 44 of the Act provides the CE with a discretionary power to, at any time before imposing a penalty on a prisoner, refer the matter to a Visiting Tribunal for hearing and determination.

21. Mr Dent refers to Division 2 of Part 4 of the Regulations which deals with breaches of the Regulations. Conduct which constitutes a serious breach of the Regulations is set out in reg 14 to reg 16. Regulation 14(4)(a) provides that a prisoner must not disobey or refuse or fail to comply with a lawful order or direction of an officer or employee of the Department or of a person authorised by the CE, individually or by class, to give directions to prisoners. Conduct which constitutes a minor breach of the Regulations is set out in reg 18 and reg 19. Regulation 18(1) provides that a prisoner must obey the rules made by the CE relating to the management of the correctional institution in which the prisoner is imprisoned.

22. Mr Dent deposes that there is no prerequisite prescribed by the Act or the Regulations, nor the SOP-047 that a prisoner must have breached a regulation to be regressed in the regime system and/or moved to another unit.

23. Mr Dent states:

    (1)Clause 3.2.7 of the SOP-047 refers to the potential for a prisoner’s conduct to constitute a breach of the Regulations. 

    (2)Clause 3.2.7 provides that, where a prisoner is alleged to have committed a breach of the Regulations, it may be appropriate to charge the prisoner under s 42A, s 43, or s 44 of the Act and, in that case, any charge must not conflict with regime progression and any changes to a prisoner’s regime must be considered prior to the setting of a penalty.

    (3)It is therefore possible for a prisoner to be subject to both a regime change and an allegation/charge of breaching the Regulations, but it is also possible for a prisoner to only be subject to one of these actions. 

    Mr Webb’s behaviour leading to regression

24. A copy of the contract for placement within the Ross unit signed by Mr Webb on 11 October 2016 is exhibited to the Dent affidavit.[12]

    [12] FDN 10, exhibit MWD-7.

25. Mr Dent deposes by reference to the JIS, Mr Webb was observed on 7 January 2022 not to be wearing a mask and was directed to do so.  Later that day, Mr Webb was again observed not to be wearing a mask and directed to put one on.  Mr Webb was issued warnings for these failures to comply with directions.  Exhibited to the Dent affidavit is a copy of a redacted extract from the JIS relating to these events on 7 January 2022.[13] 

    [13] FDN 10, exhibit MWD‑15.

26. I note Mr Dent does not refer to the warning recorded in the JIS case notes dated 8 January 2022, exhibited to Mr Webb’s affidavit affirmed 28 September 2022, which records Mr Webb was directed to put on a mask on 8 January 2022.  It is recorded Mr Webb wanted to know why he had to wear a mask whereupon he was told it was a direction from a manager.  An officer in charge was informed of Mr Webb’s response.  The officer in charge attended the Ross unit and instructed Mr Webb to wear his mask in compliance with a direction from management.  It is recorded Mr Webb insisted he wanted written notification of why he should wear a mask.  The officer in charge reinforced to Mr Webb the importance of wearing a mask for everyone’s safety. 

27. On 9 January 2022, Mr Webb was again observed not to be wearing a mask and was directed to put one on.  He was issued another warning for failing to comply with a direction.  Exhibited to the Dent affidavit is a copy of an extract from the JIS relating to this event on 9 January 2022.[14] 

    [14] FDN 10, exhibit MWD-16.

28. Mr Dent deposes Mr Webb’s conduct in failing to comply with the directions constituted a breach of verbal directions given to prisoners with respect to the wearing of masks and a breach of contract (in particular, clause 6 referred to in [10] above) for placement within the Ross unit. 

29. Exhibited to the Dent affidavit is a copy of a letter Mr Webb wrote to the CE dated 17 January 2022 seeking inter alia “a copy of the rule or law” regarding the requirement for prisoners to wear masks.  In this letter, Mr Webb admitted to being given a direction by a prison officer to wear a mask on 6 January 2022, admitted that another prison officer demanded he wear a mask on two occasions on 8 January 2022, and admitted that the Accommodation Manager of Murray, Eyre and Ross units, Rodney Saligari, spoke to him about the need to wear masks on 9 January 2022.[15]

    [15] FDN 10, exhibit MWD‑22.

30. On 14 February 2022, the Deputy CE responded to Mr Webb stating that the letter of 17 January 2022 had been referred to her for response.  The Deputy CE stated:[16]

    During the recent COVID-19 outbreak at Mobilong Prison, prisoners were directed to wear masks as a risk mitigation strategy, and on recommendation from the Communicable Diseases and Control Branch (CDCB).

    The Correctional Services Act 1982, Section 83 (1) states The CE may make rules for the purpose of this Act.

    Further, Under the Correctional Services Regulations 2016, sections 18(1) and (4), a prisoner must obey the rules made by the Chief Executive relating to the management of the correctional institution in which the prisoner is imprisoned.  Further, a prisoner must not hinder or obstruct an officer or employee of the Department in the exercise of his or her powers or functions.

    As such, a direction from staff for prisoners to wear face masks in a high-risk setting is a lawful direction.

    [16] FDN 10, exhibit MWD-23.

    The decision to regress Mr Webb

31. Whilst Mobilong was in complete lockdown, a decision was made that prisoners should not be moved unless necessary.  When Mobilong was no longer in complete lockdown, the decision was made on 24 January 2022 to regress Mr Webb within the regime system and move him from the Ross living unit to the Angas living unit.[17]  Mr Dent states that Mr Webb was informed of the decision on 24 January 2022.

    [17] FDN 10, exhibit MWD-17.

32. Mr Dent states the decision was a decision by Mr Saligari pursuant to s 24(2) of the Act and was approved by the Supervisor Operations on 31 January 2022.

33. Persons holding the positions of Accommodation Manager and Supervisor Operations have delegated power under s 24(2)(a), (b), and (c) of the Act in relation to the prison they work in. Exhibited to the Dent affidavit is a copy of an extract from an instrument of delegation made under s 7(2) of the Act by the CE on 10 March 2021 which was in force during January 2022.[18]  Also exhibited to the Dent affidavit is a copy of Rodney Saligari’s assignment to the position of “Manager Accommodation – Angas/Murray/Ross” within Mobilong dated 3 September 2013 and a copy of Robert Creaser’s appointment as “Supervisor Operations” dated 15 December 2003.[19]

    [18] FDN 10, exhibit MWD-18.

    [19] FDN 10, exhibit MWD-19 and MWD-20.

34. Mr Webb was issued with a change of regime notification form (SOP‑047‑F001) relating to the decision.  A copy of this document, which is not signed by Mr Webb, is exhibited to Mr Webb’s affidavit filed in support of the judicial review application affirmed on 17 June 2022.[20]  Mr Dent says that he has checked the JIS system and has been unable to find a version of the document signed by Mr Webb.  Exhibited to the Dent affidavit is a copy of an extract from the JIS which records Mr Webb was served with a written change of regime notification form dated 28 January 2022 referring to the change in regime from 24 January 2022.[21] 

    [20] FDN 4, exhibit RW-01.

    [21] FDN 10, exhibit MWD-21.

1. Mr Dent deposes that on 4 February 2022 he issued a “Manager’s Memorandum” to all staff and prisoners at Mobilong advising that due to the recent COVID-19 outbreak he had decided that prisoners who wished to work in any of the high-risk or essential service areas, or who wanted to be considered for placement in the Ross unit would need to be vaccinated against COVID-19.  Prisoners who were already placed in the Ross unit would be encouraged to become vaccinated but would not lose their existing position if they chose not to do so.[22]

   [22] FDN 10, exhibit MWD-24.

2. On 14 February 2022, Mr Webb wrote to the CE in relation to two separate issues.  The second of these was the decision to regress him within the regime management system by moving him onto the standard regime for the Angas/Murray unit and moving him to the Angas living unit.[23]  In the Deputy CE’s response to Mr Webb dated 2 March 2022, the Deputy CE states:[24]

   I have been advised that your regression to Angus Unit was pursuant to SOP 47 Regime Management and due to your notable non-compliance to wear a face mask during the COVID outbreak on the numerous requests from staff to do so.  In my correspondence to you on the 14^th February 2022, I outlined the parameters in which this lawful direction was applied.

   [23] FDN 10, exhibit MWD-25.

   [24]  FDN 10, exhibit MWD-26.

3. Mr Dent deposes that at no time has he or any other person acting with delegated authority from the CE alleged that Mr Webb breached any of the Regulations relating to his conduct, nor has any inquiry or hearing been held in relation to any alleged breach of the Regulations by Mr Webb.

4. Mr Dent deposes that although he does not consider the Department’s Standard Operating Procedure SOP-048-Minor Breaches and Prisoner Penalties (“SOP-048”) relevant to the decision, he exhibits it to the Dent affidavit in light of Mr Webb’s contentions.[25]

   [25] FDN 10, exhibit MWD-5.

5. Mr Dent concludes the Dent affidavit stating that:[26]

   In accordance with the Angas/Murray Unit Standard Regime (Exhibit MWD-2), [Mr Webb] may be able to progress within the Regime system and return to the Ross Unit at some point in the future if he complies with the DCS Prisoner Code of Conduct, displays exceptional behaviour consistent with a higher regime level and is compliant with the expected standards of conduct.  Any potential move of this nature would also be dependent upon availability within the Ross Unit and other considerations relating to the broader prison population.  At the present time, [Mr Webb] will also need to be vaccinated against Covid-19 in order to be eligible to be placed in the Ross Unit (see Exhibit MWD-24).

   [26] FDN 10 at [37].

   Mr Webb’s affidavits in support of the judicial review application

6. Mr Webb argued in oral and written submissions the judicial review application should proceed as he has reasonable prospects of success “as the rule of law is clear in its intention to protect rights and reputations”.[27] 

   [27] FDN 14 at [42].

7. Mr Webb deposes in his affidavit affirmed on 17 June 2022 that he is a “life‑sentenced prisoner in the custody of the ...  Chief Executive” and has been imprisoned since October 2012. 

8. He deposes that he was housed in the Ross unit on an enhanced regime from October 2016 until 24 January 2022.  It is to be noted Mr Dent deposes Mr Webb was managed on the Ross unit standard regime. 

9. Mr Webb says he has been regressed from the Ross unit to the Angas unit since 24 January 2022.  He explains that the Angas unit is a unit where prisoners are heavily managed.  Mr Webb says that on 24 January 2022 he was called to the Ross unit office by Mr Saligari.  Mr Saligari told him that he was being regressed from Ross unit to the Angas unit for “behaviour that was unsuitable for Ross unit”.  Mr Webb says that morning he packed his possessions and moved to the Angas unit.  On the afternoon of 24 January 2022, he wrote to the General Manager of Mobilong stating:[28]

   [28] FDN 4, exhibit RW-02.

   As I have been regressed for the above offence, I wish to be charged and brought before a Visiting Justice under:

   Correctional Services Act 1982 Sections 42A to Section 46.

   I wish to be notified of the date of the alleged offence, the facts of the alleged offence, the particular regulations that is alleged to be breached, and specify the punishment I have received. 

   I wish to be charged with the offence and receive a formal hearing in relation to the offence.

   I am giving notice under:

   Correctional Services Act 1982 section 42A(2),

   to an employee of the Department specified in the CE’s notice.

   Mr Webb was informed at about 4:30 pm that day that the Case Management Coordinator had emailed his letter to the General Manager. 

10. On 31 January 2022, Mr Webb applied through the Department’s Freedom of Information department for:

    All information recorded on the Justice Information System against myself, (Richard Webb), from 06 May 2021 inclusive to 31 January 2022 inclusive.

11. Mr Webb exhibits to his second affidavit affirmed 28 September 2022 a copy of the case notes he received on 5 September 2022 from the Department’s Freedom of Information department.[29]  Mr Webb submits on 7, 8, and 9 January 2022 case notes were recorded on the JIS alleging behavioural breaches, failure to follow or obey rules made by the CE and failure to follow lawful directions given by a Department employee. 

    [29] FDN 13, exhibit RW-07.

12. Mr Webb deposes that he rang the Department’s prisoner complaints line on the prisoner phone on 28 February 2022, requesting to register a complaint and asked:

    1.What is specifically wrong with my behaviour?

    2.Why haven’t I been charged?

    3.Why has my punishment continued? Correctional Services Act section 42A‑47.

    4.Why has the Department denied my legislated right to defend my reputation?

    Mr Webb says he rang the complaints line again on 4 March 2022 and requested the outcome of his complaint registered on 28 February 2022. 

13. Exhibited to the Dent affidavit is copy of an email from prisoner complaints to Mr Saligari dated 28 February 2022, and Mr Saligari’s response to the effect he would speak to Mr Webb but would not provide a written response.[30]  Mr Dent deposes in the Dent affidavit that he could find no record of any conversation between Mr Saligari and Mr Webb on or around 28 February 2022 on the JIS. 

    [30] FDN 10, exhibit MWD-27.

14. Mr Webb also wrote to the CE asking why he had not been charged and brought before a visiting justice.  Mr Dent deposes in the Dent affidavit he does not have a recollection of this letter and could find no record of it on the JIS.  

15. On 30 March 2022, Mr Webb wrote to the Legal Services Commission applying for legal aid.  He was informed on 12 May 2022 that legal aid had been refused.

16. On 4 April 2022, Mr Webb wrote to the General Manager of Mobilong requesting a computer or laptop for use in his cell to prepare for this legal action.  On 7 April 2022, Mr Dent in his capacity as General Manager informed Mr Webb that his request to have a computer or laptop in his cell was not approved and he would not receive dedicated times to access the library computer.  Mr Dent suggested Mr Webb approach the Education Officer in relation to the use of library computers.[31]

    [31] FDN 4, exhibit RW-04.

17. On 18 April 2022, Mr Webb wrote to the General Manager again requesting “Fair and Equitable Access to the Legal System and Justice” and “access to the website and the Hansard”.  By letter dated 2 May 2022, Mr Dent refused his request.[32]

    [32] FDN 4, exhibit RW-05.

18. Mr Webb challenges the decision on grounds:

    (1)the decision involved a jurisdictional error;

    (2)the Department failed to provide him with procedural fairness in the making of the decision;

    (3)the Department engaged in misfeasance in public office when making the decision; and

    (4)the Department engaged in negligence in public office and/or by bad faith when making the decisions.

    The Department’s submissions

19. The Department submitted that none of Mr Webb’s grounds are directed to how the Department made the decision.  Rather, each of his grounds is directed at a perceived failure by the Department:

    (1)to issue him with a notice alleging that he had committed a minor breach of the Regulations under s 42A of the Act; and/or

    (2)to charge him with a breach of the Regulations under s 43 of the Act; and/or

    (3)to refer the matter to a Visiting Tribunal for hearing and determination under s 44 of the Act.

    Mr Webb’s submissions

20. In his submissions, Mr Webb took the Court to the Objectives of the Act and to the Legislation Interpretation Act 2021 (SA) and submitted that, subject to the Act, the CE has the freedom to act and think as he or she wishes, completely, utterly, and within the legal limits of the law. He submitted that this interpretation best achieves the purposes and objectives of the Act and best protects the vulnerable persons in correctional institutions. He then took the Court to the Independent Commission Against Corruption Report[33] released in 2021 in relation to the Evaluation of the Practices, Policies, and Procedures of the Department, which states:[34]

    When considering records or information management in the context of the Department, correctional staff exercise considerable power over prisoners through their influence and what is reported and recorded.  If records contain inaccurate information, decisions made on the basis of their content can unfairly prejudice the treatment or rehabilitation of prisoners.

    Records often contain the only source of information about why decisions were made.  Record keeping requirements encourage decision-makers to ensure decisions are considered and appropriate.  This can act to protect the Department and its employees if decisions are challenged.

    Lax records management systems create integrity risks by creating an environment where records can be accessed, disseminated, altered or deleted for improper purposes.  This can have serious consequences in a correctional environment because information held by the Department includes business, security, and personal information, as well as information about criminal activities and dangerous individuals.  Moreover, a lack of adherence to record keeping can allow poor or corrupt decisions or behaviour to go undetected.  Adherence to accurate record keeping, and dealing with improper record keeping can have a positive impact on the integrity of an agency.

    (Footnotes omitted)

    [33] Evaluation of the Practices, Policies & Procedures of the Department for Correctional Services (Independent Commission Against Corruption, 23 June 2021).

    [34] Evaluation of the Practices, Policies & Procedures of the Department for Correctional Services (Independent Commission Against Corruption, 23 June 2021) at 82.

21. Mr Webb submitted that case notes are jurisdictional facts, by which he meant that they are matters that the CE must have considered in his assessment of his behaviour.  He submitted the CE has no discretion whether or not to consider the case notes.  He argued the case notes must be considered as they are a chief source of the recording of the behaviour of a prisoner.  He asserted he was not told that case notes referring to his refusal to wear a mask were being recorded against him when they were made.  He was not given a copy of the notes when they were recorded, nor was he given an opportunity to defend himself against the allegations recorded in the notes.  He said he did not become aware of the case notes until he received a copy of his case notes in response to his freedom of information application.  He submitted that prisoners are supposed to be told when a case note is recorded and what is being recorded. 

22. Mr Webb argued that, in January 2022, prisoners were being told by the COVID manager at Mobilong that during counts correctional officers were going to be walking out on the grass and maintaining social distancing, so that prisoners did not have to wear a mask during a count.  He argued that the only time they had to wear a mask was when they were interacting with an officer or a medic at the cage of the unit.  He said he followed that direction, and it was not until 6 January 2022, when a new officer came on and he had a discussion with that officer, that there was an issue.  He maintained he never once refused to wear a mask when interacting with officers.  He said he also observed social distancing and the safety of everyone was foremost in his mind. 

23. Mr Webb said although the case notes were written on 7, 8, and 9 January 2022, it was not until 24 January 2022 that he was regressed and not until 28 January 2022 that he received written notification of the regression. 

24. Mr Webb referred to the Rationale in SOP-048 Minor Breaches and Prisoner Penalties which provides:[35]

    DCS is committed to ensuring that a quality approach to the management of prisoner offences is operating within its institutions.  This focus will provide a prisoner offence management system that is founded on the philosophy of natural justice; and contributes to minimising the risk of injury and/or harm to prisoners, employees and visitors.

    [35] FDN 10, exhibit MWD-5, p 22.

25. Mr Webb referred to the procedure prescribed in SOP-048, which provides:[36]

    3.1.1Instructions to prisoners should be structured in an order that is consistent with the operational sequence of events and tasks, or in a priority order where formulation of a procedure is not specifically linked to the operational sequence of events.

    3.1.2Section 42A of the [Act] should be used to manage minor breaches of the [Regulations].

    [36] FDN 10, exhibit MWD-5, p 22.

26. Mr Webb referred to the letter in response to his letter dated 17 January 2022 from the Deputy CE wherein the Deputy CE referred to reg 18(1) and (4), which provide that a prisoner must obey the rules made by the CE relating to the management of the correctional institution in which they are imprisoned. Mr Webb argued that the Deputy CE referred to his behaviour regarding mask wearing as an alleged minor breach pursuant to reg 18(1) and reg 18(4). He argued the Deputy CE’s letter was confirmation the delegate of the CE had related his behaviour to the Regulations, and accordingly s 42A of the Act applied. He argued that SOP-048 provides that:

    3.1.3As described in the Prisoner Code of Conduct (SOP 047-F002), all prisoners are expected to adhere to set rules (i.e.  prisoner regime) whilst they are incarcerated.

    3.1.4As such, prisoners have accountability for their behaviour and can be charged with breaches.

    3.1.5As per Minor Breach Schedule (Appendix 1) embedded in this SOP; a prisoner can be charged for any of these offences.

    3.1.6Minor breaches must be managed by the processes outlined within this SOP.

    3.17.Serious or major breaches must be managed through a [CE] or a Visiting Tribunal (VT) Inquiry, and subsequent Hearing process, as per SOP 049 – CE or VT Inquiry.

27. Mr Webb pointed to paragraph 3.6.4 of SOP-048, which provides:

    3.6.4All officers must ensure that case notes include a record of the communication of any outcome of any investigation, regime change or prisoner transfer that has resulted from a breach of the regulations. 

28. Mr Webb asserted he has not received any case note stating he had been regressed from the Ross enhanced regime to the Ross standard regime.  As detailed above, Mr Webb maintains prior to the decision he was subject to the Ross enhanced regime, whereas Mr Dent’s evidence is that he was subject to the Ross standard regime.  Mr Webb contended his punishment included regression through all levels of regime between the Ross unit enhanced regime and the Angas unit standard regime. 

29. Mr Webb referred to paragraph 3.6.3 of SOP-047, which provides that case notes must be made for prisoners who progress or regress from an enhanced regime.  He alleged that he was neither case noted nor informed of his regression from the Ross unit enhanced regime to the Ross unit standard, nor was he given a change of regime notification pursuant to SOP-047-F001.  This he argued was his first punishment.

30. He alleged that his second punishment was being regressed from the Ross unit to the Angas unit on 24 January 2022.  He asserted that the SOP-047-F001 was not served on him until four days after he had been regressed.  He argued that he has been double punished for his alleged behaviour breaches and denied his legal entitlement to defend himself. 

31. Mr Webb developed his argument and submitted that, as his behaviour was alleged to be a breach of the Regulations, he elected to be charged. However, the procedure prescribed by the Act was not followed. He argued that he wanted to be notified of the date of his alleged offences, the fact of his alleged offence, the particular regulation that he was alleged to have breached, and the punishment he received specified. As he wished to be charged with an offence and receive a formal hearing in relation to the offence, he gave notice under s 42A(2) of the Act. He maintained that as the Deputy CE agreed that his conduct was an alleged breach, the matter should have been dealt with under s 42A of the Act.

32. Mr Webb maintained the Deputy CE was reiterating the fact that he had disobeyed the directions of an officer and that conduct fell within reg 18(1) and (4) and had to be dealt with pursuant to s 42A of the Act. He asserted the case notes recorded against him on the JIS contain unfounded allegations that have not been proved by or through a judicial process. He argued a choice was made not to disclose the case notes to him and that the case notes were the basis for the decision. He contended this amounted to a denial of procedural fairness and he was denied the ability to defend his reputation.

33. Mr Webb argued the decision-maker has misinterpreted the absolute discretion prescribed under the Act and has failed to act in accordance with the law, or the standard operating procedures established by the Department.

    The Act

34. Part 4 of the Act, comprising s 21A to s 39C, concerns imprisonment.

35. Part 4 Division 1 concerns admission and assignment of prisoners to correctional institutions, Division 3 concerns assessment of prisoners, and Division 4 concerns custody of prisoners.[37] 

    [37] Part 4 Division 2 heading was deleted by 51/1998 s 19.

36. It is to be noted that s 22(2) provides that a person who is sentenced to imprisonment “will be imprisoned in such correctional institution as the CE may determine” and provides no preconditions or mandatory or relevant considerations to such a determination.  Further, s 25 gives the Department power to direct that a prisoner be transferred from the place where the prisoner is currently detained to any other correctional institution.  That power is also not subject to any preconditions, nor mandatory or relevant considerations. 

37. Relevantly, s 24 of the Act provides:

    24—CE has custody of prisoners

    (1)The CE has the custody of a prisoner, whether the prisoner is within, or outside, the precincts of the place in which he or she is being detained, or is to be detained.

    (2)Subject to this Act, the CE has an absolute discretion—

    (a)     to place any particular prisoner or prisoner of a particular class in such part of the correctional institution; and

    (b)     to establish in respect of any particular prisoner, or prisoner of a particular class, or in respect of prisoners placed in any particular part of the correctional institution, such a regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of prisoners; and

    (c)     to vary any such regime,

    as from time to time seems expedient to the CE.

    (3)A variation of a regime in respect of a particular prisoner under subsection (2) for any purpose does not constitute a penalty for the purposes of this Act.

    (Emphasis added)

38. As submitted by the Department, there are no legislative provisions which provide any preconditions to, nor mandatory or relevant considerations for, the making of decisions under s 24(2) of the Act. There are also no procedures prescribed for the making of such decisions and there is no statutory right of review or appeal upon the making of such a decision.

1. Part 5 of the Act, comprising s 41 to s 52, concerns offences. Section 42A(1) of the Act enables the Department to issue a prisoner with a notice in writing when the Department is satisfied that the prisoner has committed a breach of the Regulations to which the section applies. The Act prescribes the Department has a discretion in this regard by providing, “may give the prisoner notice in writing”.

2. Subdivision 3 of Part 4 of the Regulations are the regulations pertaining to s 42A. If a notice is issued under s 42A and the prisoner does not respond in writing stating that the prisoner elects to be charged with the offence, the Department may impose one or both of the penalties prescribed in s 42A(2)(d) and (e). Section 43(1) of the Act enables the Department to, where it is alleged that a prisoner has committed a breach of the Regulations, charge the prisoner with the offence and conduct an inquiry into the allegation in the prescribed manner. The Department has a discretion in this regard as the Act specifies that the Department may charge the prisoner with the offence. Regulation 22 of the Regulations and s 45 of the Act set out the prescribed procedure for inquiries held under s 43.

3. Section 44(1) of the Act enables the Department, at any time before imposing a penalty on a prisoner in respect of an alleged breach of the Regulations, to refer the matter to a Visiting Tribunal for hearing and determination. The Department has a discretion in this regard, as the legislation specifies that the CE may at any time refer the matter to a Visiting Tribunal. Section 41 prescribes the powers of a Visiting Tribunal. Regulation 23 of the Regulations and s 45 of the Act set out the provisions relating to the procedures for inquiries conducted by a Visiting Tribunal.

4. Neither the Act nor the Regulations contain any statutory right of review or appeal against a decision of the CE to issue a written notice under s 42A(1) of the Act, a decision to charge a prisoner with an offence under s 43 of the Act, a decision to refer the matter to a Visiting Tribunal for hearing under s 44(1) of the Act, nor any decision not to take any of these actions.

5. This is to be compared with s 46(1) of the Act which provides prisoners with a statutory right of appeal to a Visiting Tribunal against any penalty imposed on the prisoner by the CE, and s 47(1) which provides a statutory right of appeal against order of a Visiting Tribunal on the grounds that proceedings were not conducted in accordance with the provisions of the Act. Section 47(5) of the Act expressly excludes any further appeal from the decision of a Visiting Tribunal and any further appeal from a decision of a court made under s 47(1) of the Act.

6. In his letter 24 January 2022, Mr Webb states he has been regressed for an offence, that he wishes to be charged, brought before a Visiting Justice, and to have a formal hearing in relation to the offence. He purports that his letter constitutes a notice under s 42A(2) of the Act.

7. As submitted by the Department, the Act makes a clear distinction between administrative actions taken by the Department pursuant to Part 4 of the Act and those taken in relation to alleged offences under Part 5 of the Act.

8. Section s 24(2)(a) of the Act prescribes the CE (including any person acting with delegated authority) has an absolute discretion to place Mr Webb in such part of Mobilong as the CE sees fit from time to time as seems expedient to the CE.

9. The CE (including any person with delegated authority) also has an express absolute discretion under s 24(2)(b) of the Act as from time to time seems expedient to:

   (1)establish in respect of Mr Webb “such a regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of Mr Webb; and

   (2)vary any such regime.

10. Section 24(3) expressly provides such decisions do not constitute a penalty for the purposes of the Act.

11. The decision made on 24 January 2022 to regress Mr Webb within the prison regime by moving him to the Angas/Murray unit was clearly made pursuant to s 24(2) of the Act.

12. The Department contended case notes are not normally provided to prisoners.  It is to be noted that neither SOP-047 nor SOP-048 mandate the provision of notes to prisoners.  Rather, SOP-047 mandates the making of case notes, for example, at 3.2.4(d), 3.2.6, 3.3.5, 3.4.2, 3.5.3, 3.6.3, and 3.7.9.  SOP-048 also mandates at 3.6.4, for example, that case notes “include a record of the communication of any outcome of any investigation, regime change or prisoner transfer that has resulted from a breach of the regulations”.[38] 

    [38] FDN 10, exhibit MWD-5.

13. Mr Webb did not receive written notification of the change in regime until four days after he had been regressed.  However, it appears by reference to Mr Webb’s affidavits he was informed of the change in regime orally at the time of the regression on 24 January 2022. 

14. In relation to Mr Webb’s complaint that he was regressed from the Ross enhanced regime to the Angas standard regime without stepping through the other regime levels between Ross enhanced and Angas standard, it is to be noted he signed the contract for placement in the Ross unit.  In doing so, he acknowledged his placement in Ross unit was a privilege, which may be withdrawn if his behaviour was deemed unacceptable in any way, and he agreed and to comply with any directions given to me by any prison staff member.[39]  The Change of Regime Notification (SOP -047-F001) served on Mr Webb states:[40]

    … you have demonstrated that you are either unwilling or unable to accept responsibility for your behaviours and/or actions or you no longer meet the criteria required of your current regime. 

    [39] FDN 10, exhibit MWD-7.

    [40] FDN 4, exhibit RW-01.

15. Turning to Mr Webb’s submissions that the Deputy CE, in her letter dated 14 February 2022, responding to Mr Webb’s letter dated 17 January 2022, confirmed Mr Webb’s behaviour was an alleged breach of the Regulations, enlivening the procedures prescribed by Part 5 Division 2 of the Act. Mr Webb’s letter dated 17 January 2022 did not ask the CE to explain the provision of the Act under which the decision was made. Rather, Mr Webb asked under what rule or law he was required to wear a mask. I note the Deputy CE in her letter dated 2 March 2022, addressed to Mr Webb, said that she had been advised that Mr Webb’s regression to the Angas unit was pursuant to SOP-047 and due to his notable non‑compliance to wear a face mask during the COVID outbreak on the numerous requests from staff to do so.

    Conclusion

16. Having regard to the matters deposed to by Mr Webb in his affidavits, it is clear he was on notice that the direction to wear a mask applied to all prisoners and staff and warned that he was required to comply with it.  Further, he signed the contract when he was placed in the Ross unit, acknowledging the placement was a privilege which may be withdrawn at any time if his behaviour was “deemed unacceptable in any way” and he agreed to comply with any direction given to him by any prison staff member.

17. Mr Webb was not alleged at any time by the General Manager of Mobilong, or any other person acting with delegated authority from the CE, of breaching any prison regulation relating to his conduct in refusing to wear a mask.  As such, no inquiry or hearing has been held in relation to any such breaches. 

18. Section 24 of the Act confers a broad discretionary power. It does not prescribe any preconditions, or mandatory or relevant considerations, or imply that prisoners are to be consulted or offered any opportunity to comment prior to any decisions being made.

19. Section 24 is to be contrasted with s 23 of the Act concerning initial and periodic assessments which expressly includes a list of mandatory relevant considerations in s 23(3) of the Act and which expressly provides a form of procedural fairness to prisoners pursuant to s 23(4) of the Act.

20. The common law duty to act fairly in the sense of affording procedural fairness depends on the context and circumstances of the particular case and the proper construction of the statutory scheme.[41]

    [41] Kioa v West (1985) 159 CLR 550 at 584–5 (Mason J), 611 (Brennan J); National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 319–20 (Mason, Wilson & Dawson JJ); Lymberopoulos v Police [2006] SASC 360 at [41] (White J).

21. The question of procedural fairness has been considered in the context of decisions made to place and segregate prisoners,[42] and as Perry J said in Bromley v McGowan & Anor:[43]

    … the language of s 24(2) emphasises the absolute nature of the discretion conferred upon the Chief Executive Officer. The very words of s 24(2) describe the discretion as “absolute”. The words “as from time to time seems expedient” are words which emphasise the breadth of the discretion”.

    [42] McEvoy v Lobban (1989) 48 A Crim R 412; Bromley v McGowan & Anor (1994) 178 LSJS 1; Fyfe v The State of South Australia [2000] SASC 84 at [18].

    [43] (1994) 178 LSJS 1 at 11.

22. There was no obligation on the Department to afford Mr Webb procedural fairness prior to making the decision and there was no obligation on the Department to act pursuant to Part 5 of the Act.

23. The decision to regress Mr Webb made pursuant to s 24(2) of the Act was not affected by jurisdictional error, nor did it involve any misfeasance in public office, negligence in public office, or bad faith.

24. I agree the judicial review application is hopeless and bound to fail.  Accordingly, I grant the Department summary judgment in respect of the judicial review application as there is no reasonable basis for any ground of review relied upon by Mr Webb nor for any relief sought by him.