Webb v Department for Correctional Services - [2023] SASCA 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2023] SASCA 110
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
12 October 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
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
This is an appeal against the decision of a single Judge of the Supreme Court of South Australia to grant an application brought by the Chief Executive of the Department for Correctional Services (‘the Department’) for summary judgment of an application for judicial review brought by the applicant.
The applicant is currently a prisoner detained at Mobilong Prison (‘Mobilong’). On 24 January 2022, the Department made a decision to 'regress' the applicant to the Angas Unit Cottages at Mobilong from the Ross Unit Cottages, where he was previously accommodated, after he failed to comply with verbal directions to wear a face mask during a COVID-19 outbreak at Mobilong, thereby breaching a contract he had signed for placement in the Ross Unit Cottages. The decision was made by a delegate of the Chief Executive of the Department pursuant to s 24(2) of the Correctional Services Act 1982 (SA) ('the Act').
The applicant sought judicial review of the decision. In response, the Department brought an interlocutory application for summary judgment on the basis that there was no reasonable basis for any ground of review relied upon by the applicant. At the conclusion of the interlocutory application hearing, the Judge granted the Department’s application for summary judgment.
The applicant now seeks leave to appeal the Judge’s decision on the following, summarised, grounds:
1.The Judge erred in finding that there was no duty to afford the applicant procedural fairness.
2.The Judge erred in not finding that the Chief Executive ought to have taken into account factual matters that were relevant to the making of the decision, including that the applicant was living a ‘law-abiding lifestyle’ and that his ‘behaviour was not in question’.

The applicant requires an extension of time to file his appeal and the Department takes no opposition to that being granted.
Held, per the Court, granting the extension of time but refusing leave and dismissing the appeal:
1.It was open to the Judge to find that there was no reasonable basis for any of the grounds of review relied upon by the applicant.
2.The decision to regress the applicant was lawfully made pursuant to s 24(2) of the Act and was not conditioned by an obligation to afford the applicant procedural fairness.
3.The Chief Executive or delegate was not required to have regard to the applicant's assertions that he was living a ‘law-abiding lifestyle’ and that his ‘behaviour was not in question’. A prisoner’s behaviour, generally, is not a mandatory consideration under s 24(2) of the Act.
4.There is no obligation on the Chief Executive or delegate under s 24(2) of the Act, or any other provision of the Act, to provide prisoners with access to computers.

Correctional Services Act 1982 (SA) ss 7, 21A, 22, 23, 24, 25, 30, 36, 41, 42, 42A, 43, 44, 45, 46, 47, 48; Correctional Services Act Amendment Act (No 2) (No. 76 of 1990) (SA) s 9; Correctional Services Regulations 2016 (SA) reg 22, 23, referred to.
Bromley v McGowan & Anor (1994) 178 LSJS 1; Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575 (2023) 97 ALJR 575; Kioa v West (1985) 159 CLR 550; Page v South Australia (1997) 95 A Crim R 25; Twist v Randwick Municipal Council (1976) 136 CLR 106; Vansetten v The State of South Australia [2020] SASC 158, discussed.
Baretto v McMullan [2013] WASC 26; Fyfe v The State of South Australia [2000] SASC 84; Fyfe v The State of South Australia [2007] SASC 272; Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86; Kyriazis v Coelho [2019] VSC 74; Lymberopoulos v Police [2006] SASC 360; McEvoy v Lobban (1989) 48 A Crim R 412; Minister for Immigration and Border Protection SZSSJ (2016) 259 CLR 180; Moran v Secretary to the Department of Justice and Regulation (2015) 48 VR 119; National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296; South Australia v O’Shea (1987) 163 CLR 378; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; The Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329; Webb v Department for Correctional Services [2023] SASC 114, considered.

WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2023] SASCA 110
Court of Appeal – Civil: Lovell, Bleby and David JJA

THE COURT: This is an appeal against the decision of a single Judge to grant an application brought by the Department for Correctional Services (‘the Department’) for summary judgment of an application for judicial review brought by the applicant. The Judge granted the Department’s application for summary judgment upon finding that there was no reasonable basis for any ground of judicial review relied upon by the applicant.
The applicant is currently a prisoner detained at Mobilong Prison (‘Mobilong’). On 24 January 2022, the applicant was regressed to the Angas Unit Cottages at Mobilong from the Ross Unit Cottages, where he was previously accommodated, after he failed to comply with verbal directions to wear a mask during a COVID-19 outbreak at Mobilong, and for breaching a contract he had signed for placement in the Ross Unit Cottages. The decision to ‘regress’ him was made by a delegate of the Chief Executive of the Department (‘the delegate’).
The applicant sought judicial review of the decision to regress him in the Supreme Court of South Australia. In response, the Department brought an interlocutory application for summary judgment on the basis that there was no reasonable basis for any ground of review relied upon by the applicant. At the conclusion of the interlocutory application hearing, the Judge granted the Department’s application for summary judgment but refused its application for costs.
The applicant now appeals the Judge’s finding on the following, summarised, grounds:
1.The Judge erred in finding that there was no duty to afford the applicant procedural fairness; and
2.The Judge erred in not finding that the delegate ought to have taken into account factual matters that were relevant to the making of the decision, including that the applicant was living a ‘law-abiding lifestyle’ and that his ‘behaviour was not in question’.
The applicant requires an extension of time to file his appeal and the Department does not oppose to that being granted.
For the reasons that follow, we grant the applicant an extension of time to file his appeal but refuse leave and dismiss the appeal.
Factual and procedural history
The applicant is serving a life sentence at Mobilong. He has been imprisoned at Mobilong since October 2012. From October 2016, he was accommodated in the Ross Unit after signing a contract (‘the contract’) which relevantly included the following clauses:
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. I 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.
From 31 December 2021 to January 2022, there was a COVID-19 outbreak at Mobilong which resulted in 298 positive cases during that period. Pursuant to advice provided by the South Australian Health Communicable Disease Control Branch to the Department, all prisoners at Mobilong were given surgical masks and directed to wear them when outside of their cells. Flyers notifying of the need to wear masks were provided to prisoners. Prison staff were also required to wear masks at all times.
During the period in which Mobilong was in complete lockdown, the applicant refused to wear a mask on multiple occasions, thus failing to comply with the verbal directions of prison staff.
By 24 January 2022, the lockdown at Mobilong had ceased and a decision was made to regress the applicant for failing to comply with the verbal directions with respect to wearing a mask and for breaching the contract, namely clauses one and six. The result of the decision meant that he became subject to the Angas/Murray Unit Standard Regime and was required to move from the Ross Unit to the Angus Unit. The Standard Regime in the Ross Unit provides a greater number of privileges to, and less supervision of, prisoners compared to the Angas/Murray Standard Regime.
On 14 July 2022, the applicant filed an application for judicial review complaining that the decision was made with jurisdictional error and in breach of procedural fairness. The applicant also complained of misfeasance in public office and negligence. The judicial review application was supported by two affidavits sworn by the applicant on 17 June 2022 and 28 September 2022. The applicant contended that the decision was made pursuant to ss 41 and 48 of the Correctional Services Act 1982 (SA) (‘the Act’) and that he was denied procedural fairness pursuant to ss 42A and 46 of the Act.
In response, the Department filed an interlocutory application on 12 August 2022, seeking summary judgment in respect of the judicial review application on the basis that there was no reasonable basis for any ground of review relied upon by the applicant, nor any relief sought by him. It was the Department’s submission that the decision to regress the applicant was lawfully made pursuant s 24(2) of the Act and was not conditioned by any obligation to accord procedural fairness.
Relevant legislation
The Act provides for the establishment and administration of prisons.
Part 4 of the Act concerns imprisonment and prisoner management. Division 1 governs admission and assignment of prisoners to correctional institutions; Division 3 concerns the assessment of prisoners; and Division 4 concerns the custody of prisoners. Division 5 concerns the transfer of prisoners, by the Chief Executive, between correctional institutions; and Division 6 concerns management of prisoners. Divisions 6A and 7 concern home detention and the release of prisoners from prison or home detention.
Once a prisoner has been admitted under s 21A and assigned an institution under s 22, the Chief Executive has custody over the prisoner pursuant to s 24(1) and the prisoner is subject to any decisions made by the Chief Executive under s 24(2).
There are limited express obligations on the Chief Executive such as those found in s 23, which concerns initial and periodic assessment. For example, s 23(3) includes an express list of mandatory relevant considerations and s 23(4) expressly provides a form of procedural fairness to prisoners in that the Chief Executive must notify the prisoner before commencing an assessment and must, if the prisoner requests, grant the prisoner an opportunity to make representations in person to the Chief Executive or to a committee established pursuant to s 23(2).
Section 24 of the Act confers a broad discretionary power on the Chief Executive (or any one with delegated authority). It 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)
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.
The breadth of s 24 sits with other broad powers of the Chief Executive including those under s 22(2), which provides that a person who is sentenced to imprisonment ‘will be imprisoned in such correctional institution as the [Chief Executive] may determine’,[1] even if the warrant of commitment directs that the prisoner be detained in some other correctional institution. Further, s 25 gives the Chief Executive 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 not subject to any preconditions, nor mandatory or relevant considerations.
[1] Emphasis added.
Part 5 of the Act concerns offences. Section 42A(1) enables the Chief Executive to issue a prisoner with a notice in writing when the Chief Executive is satisfied that the prisoner has committed a breach of the Correctional Services Regulations 2016 (‘the Regulations’), to which the section applies.
Subdivision 3 of Division 2 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 Chief Executive may impose one or both of the penalties prescribed in ss 42A(2)(d) and (e). Section 43(1) of the Act enables the Chief Executive 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 Chief Executive has a discretion in this regard as the Act specifies that the Chief Executive may charge the prisoner with the offence.[2] Regulation 22 of the Regulations and s 45 of the Act set out the prescribed procedure for inquiries held under s 43.
[2] Emphasis added.
Section 44(1) of the Act enables the Chief Executive, 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 Chief Executive has a discretion in this regard, as the legislation specifies that the Chief Executive may, at any time, refer the matter to a Visiting Tribunal.[3] 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.
[3] Emphasis added.
Neither the Act nor the Regulations contain any statutory right of review or appeal against a decision of the Chief Executive to issue a written notice under s 42A(1) of the Act, or the decision to charge a prisoner with an offence under s 43 of the Act, or the decision to refer the matter to a Visiting Tribunal for hearing under s 44(1) of the Act. Nor is there any statutory right of review or appeal against a decision of the Chief Executive not to take any of these actions.
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 Chief Executive, and s 47(1) which provides a statutory right of appeal against an 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.
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.
Also relevant to these proceedings are the provisions of s 7(2) of the Act, which enables the Chief Executive, with the approval of the Minister, to delegate to any employee of the Department, any of the powers, functions, duties or responsibilities vested in, imposed on or delegated to, the Chief Executive under the Act. At the interlocutory application hearing, and on appeal, there was no dispute that the delegate was not properly authorised to make the relevant decision under the Act.
Relevantly, pursuant to s 24(2)(a) the delegate has an absolute discretion to place the applicant in such part of Mobilong as deemed appropriate and expedient. Further, the delegate has an express and absolute discretion under s 24(2)(b) of the Act to establish, in respect of the applicant, ‘such a regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life’ of the applicant; and to vary any such regime.
Section 24(3) expressly provides that decisions made pursuant to s 24(2) do not constitute a penalty for the purposes of the Act.
The Judge’s findings
The Judge, after having regard to the matters deposed by the applicant in his affidavits, found that it was clear that the applicant was on notice that the direction to wear a mask applied to all prisoners and prison staff and was aware that he was required to comply with it. Further, in signing the contract when he was placed in the Ross Unit, the Judge found the applicant had acknowledged the placement was a privilege which could 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.
Her Honour noted that s 24 of the Act confers a broad discretionary power and 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. Her Honour also noted that s 24 is to be distinguished from s 23, which concerns initial and periodic assessment. Unlike s 24, s 23(3) includes an express list of mandatory relevant considerations and s 23(4) expressly provides a form of procedural fairness to prisoners in that the Chief Executive must notify the prisoner before commencing an assessment and must, if the prisoner requests, grant the prisoner an opportunity to make representations in person to the Chief Executive or to a committee established pursuant to s 23(2).
The Judge considered 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 regime.[4] Her Honour referred to the remarks of Perry J in Bromley v McGowan & Anor[5] (‘Bromley’) in relation to the question of procedural fairness in the context of decisions made to place and segregate prisoners.[6] Relevantly, Perry J said:[7]
… 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.
[4]     National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 319–20 per Mason, Wilson & Dawson JJ; Kioa v West (1985) 159 CLR 550 at 584–5 per Mason J, 611 per Brennan J; Lymberopoulos v Police [2006] SASC 360 at [41] per White J.
[5] (1994) 178 LSJS 1.
[6]     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.
[7]     Bromley v McGowan & Anor (1994) 178 LSJS 1 at 11 per Perry J.

The Judge found the decision to regress the applicant was made pursuant to s 24(2) and, on that basis, ultimately concluded there was no obligation on the Department to afford the applicant procedural fairness prior to making the decision and there was no obligation on the Department to act pursuant to Part 5 of the Act. Her Honour also found the decision to regress the applicant pursuant to s 24(2) was not affected by jurisdictional error, nor did it involve any misfeasance in public office, negligence in public office, or bad faith.
In so finding, the Judge granted the Department summary judgment in respect of the judicial review application on the basis there was ‘no reasonable basis for any ground of review relied upon by [the applicant] nor for any relief sought by him’.
The appeal
This appeal is confined to the findings of the Judge in relation to the Department’s application for summary judgment. The respondent submitted that the applicant’s contention that he was denied the opportunity to have access to technology to prepare for legal proceedings (referred to in the applicant’s materials) were not properly before this Court on this appeal. The applicant made two interlocutory applications before two different Judges seeking, inter alia, a laptop in his cell, both of which were summarily dismissed.[8] The notice of appeal does not identify the disposition of those interlocutory applications as being the subject of this appeal. In any event, for reasons which follow, had that ground of appeal been properly before the Court, we would not grant leave.
[8] Record of Outcome dated 3 August 2022 in Supreme Court Proceedings CIV-22-007703 (FDN 3); Webb v Department for Correctional Services [2023] SASC 114.
It is clear that the decision to regress the applicant was made pursuant to s 24(2) of the Act. As previously stated, s 24(2) confers a broad and absolute discretionary power on the Chief Executive to ‘place any particular prisoner or prisoner of a particular class in such part of the correctional institution’; and 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 day-to-day life of prisoners. By contrast, ss 41 and 48 concern the determination of allegations against other prisoners for breaches of the Regulations.
The discretionary breadth of s 24(2) is further iterated in the second reading speech.[9] Section 24(2) was first inserted by s 9 of the Correctional Services Act Amendment Act (No 2) (No. 76 of 1990) (SA). It was enacted to protect the ‘safety of officers and prisoners, and the security and good order and management of prisons’;[10] and to ‘counteract … dangerous and disruptive behaviour’.[11] The Department submits that the purpose of the provision, as intended by the legislature, would be unattainable if decision-making by the Chief Executive, which necessarily involves a vast number of decisions, some of which have to be made urgently, was delayed by procedural fairness obligations.
[9] South Australia, Parliamentary Debates, Legislative Council, 15 November 1990, 1903 (C J Sumner, Attorney-General).
[10] South Australia, Parliamentary Debates, Legislative Council, 15 November 1990, 1903 (C J Sumner, Attorney-General).
[11] South Australia, Parliamentary Debates, Legislative Council, 15 November 1990, 1903 (C J Sumner, Attorney-General).
Further, the breadth of the Chief Executive’s powers under s 24 is demonstrated by the absence of any express statutory preconditions to the enlivening of the discretion.
That being said, the exercise of power under s 24(2) must be bona fide and otherwise in accordance with the Act and not for a purpose unrelated to the grounds set out in s 24(2).[12] In the present case, it is clear that there was no reviewable error in the decision to regress the applicant. That power was plainly within the ambit of s 24(2)(a) and was exercised lawfully. Further, the decision was expressly not a penalty and,[13] therefore, no right of appeal lies to the Visiting Tribunal pursuant to ss 46 and 47 of the Act, as contended by the applicant.
[12] Page v South Australia (1997) 95 A Crim R 25 at 27-8 per Bleby J.
[13] See Correctional Services Act 1982 (SA) s 24(3).
The Department further submits that, on the proper construction of the Act, there was no duty to afford procedural fairness to the applicant.[14]
[14] See generally Vansetten v The State of South Australia [2020] SASC 158 at [80]-[82] per Doyle J.
The existence of a duty to afford procedural fairness is a question of statutory interpretation,[15] and the particular content to be given to the requirement to afford 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.[16] In Twist v Randwick Municipal Council,[17] Barwick CJ described the common law rule that a statutory authority having power to affect the rights of a person is bound to hear him or her before exercising the power as ‘both fundamental and universal’, although subject to legislative displacement.[18] Chief Justice Barwick explained that, if it appears that the legislature ‘has not addressed itself’ to the question of natural justice, the court will approach the task of statutory interpretation ‘with a presumption that the legislature does not intend to deny natural justice to the citizen’, and ‘may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice’.[19]
[15] Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575 at [32] per Kiefel CJ, Gageler, Gleeson and Jagot JJ, citing Kioa v West (1985) 159 CLR 550 at 584 per Mason J; South Australia v O’Shea (1987) 163 CLR 378 at 400 per Wilson and Toohey JJ; Minister for Immigration and Border Protection SZSSJ (2016) 259 CLR 180 at [75] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
[16] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, cited in Vansetten v South Australia [2020] SASC 158 at [90] per Doyle J.
[17] (1976) 136 CLR 106.
[18] Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109 per Barwick CJ.
[19] Twist v Randwick Municipal Council (1976) 136 CLR 106 at 110 per Barwick CJ.
In Disorganized Developments Pty Ltd v South Australia,[20] the plurality noted that:[21]
Since Twist, the law has evolved to include an established and “strong” common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness. Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates “unless clearly displaced by the particular statutory scheme”.
Notwithstanding the breadth of the stated presumption, there remain statutory powers that are not conditioned upon a duty to give procedural fairness. In particular, powers that affect individuals in an undifferentiated way from the general public may not attract an obligation of procedural fairness.
(citations omitted)
[20] (2023) 97 ALJR 575.
[21] Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575 at [33]-[34] per Kiefel CJ, Gageler, Gleeson and Jagot JJ.
In Kioa v West,[22] however, Brennan J stated that the common law ‘presumption’ may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is exercised.[23]
[22] (1985) 159 CLR 550.
[23] Kioa v West (1985) 159 CLR 550 at 619 per Brennan J.
In Page v South Australia,[24] Bleby J made the following observations in relation to s 24(2) when comparing it to s 36 of the Act, which confers power on the Chief Executive to direct that a prisoner be kept separately and apart from all other prisoners within a correctional institution. His Honour said:[25]
Several points need to be made about [s 36 of the Act]. The discretion placed upon the Chief Executive Officer is expressed in broad terms, being dependent upon his or her opinion that it is desirable to make the order. However, it is at once limited by the consideration that must be given to the matters referred to in subparas (a) to (d) inclusive. It is to be contrasted with s 24(2) which vests in the Chief Executive Officer an absolute discretion to place any particular prisoner in such part of the correctional institution and to establish in respect of a particular prisoner such regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of prisoners, as from time to time seems expedient to the Chief Executive Officer. That latter section was the subject of consideration by Perry J in Bromley v McGowan and Vardon (1994) 178 LSJS 1, where it was held that there were only very limited grounds on which the court could intervene in relation to a decision made under that section.
(emphasis added)
[24] (1997) 95 A Crim R 25.
[25] Page v South Australia (1997) 95 A Crim R 25 at 27-8 per Bleby J, cited in Fyfe v South Australia [2007] 272 at [8] per Kelly J.
Section 24 provides the Chief Executive, or a delegate, an absolute discretion to place a prisoner in such part of the correctional institution as seems expedient to the Chief Executive, and to establish a regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of prisoners. Accordingly, a decision made under s 24 cannot be said to affect the rights and interests, or discipline and punishment (noting that s 24(3) expressly states that a decision made under the provision is not a penalty) of prisoners[26] such that it attracts the ‘strong’ presumption that the power is impliedly conditioned by procedural fairness.[27]
[26] Vansetten v State of South Australia [2020] SASC 158 at [83] per Doyle J.
[27] Kioa v West (1985) 159 CLR 550 at 619-20 per Brennan J.
In this instance, the Judge relied on the decision of Perry J in Bromley, a case concerning an application for judicial review of a decision to transfer a prisoner to a separate Division within Yatala Labour Prison pursuant to s 24 of the Act. There, Perry J held that the making of the decision did not attract the rules of natural justice and ought not to be reviewed by the Court except on the ground that it was not a bona fide exercise of power conferred by s 24(2) of the Act. His Honour said:[28]
.. 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 emphasis the breadth of the discretion.
[28] Bromley v McGowan & Anor (1994) 178 LSJS 1 at 11 per Perry J.
In the present case, the Judge held there was no obligation on the Department to afford the applicant procedural fairness prior to making the decision to regress him. Her Honour’s approach, relying on Bromley, is consistent with the more recent decision in Vansetten v South Australia (‘Vansetten’).[29] While Vansetten was concerned with procedural fairness obligations under s 23 of the Act, Doyle J held that some decisions made in the prison context ‘will be so bound up in the operational and management considerations … that there will be little scope for intervention in accordance with the ordinary principles.’[30] His Honour went on:[31]
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.
[29] [2020] SASC 158.
[30] Vansetten v State of South Australia [2020] SASC 158 at [82] per Doyle.
[31] Vansetten v State of South Australia [2020] SASC 158 at [82] per Doyle.
Consequentially, consistent with earlier authorities,[32] many principles of administrative law constraining administrative decision-making, which are implied by way of statutory construction, are less readily imported in the context of decision-making affecting the management of prisons than they would in other contexts.[33] That is clearly so with respect to the procedural fairness afforded to a decision to move prisoners within a correctional institution. Such obligations would undermine the grant of custody, and the management of such custody, conferred upon the Chief Executive, absolutely, if the Chief Executive was obligated to hear from the prisoner as to where they were accommodated whilst incarcerated.
[32] See Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7]-[10] per McInerny J; Fyfe v South Australia [2000] SASC 84 at [9], [18] per Martin J; The Herald and Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 at [95] per Eames J; Fyfe v South Australia [2007] SASC 272 at [10]-[11] per Kelly J; Baretto v McMullan [2013] WASC 26 at [41] per McKechnie J; Moran v Secretary to the Department of Justice and Regulation (2015) 48 VR 119 at [26] per McDonald J; Kyriazis v Coelho [2019] VSC at [20]-[23] per Zammit J.
[33] Vansetten v State of South Australia [2020] SASC 158 at [80]-[82] per Doyle J.
The central purpose of s 24(2) is clear; namely, to confer power on the Chief Executive (or a delegate) to manage the custody of prisoners within a correctional institution. The decision to place a prisoner in a particular part of the correctional institution, or transfer them within it, is conferred upon the Chief Executive (or a delegate), absolutely. In all the circumstances, we are satisfied the exercise of power under s 24(2) was bona fide and it was open to the Judge to find that there was no reasonable basis for any of the grounds of review relied upon by the applicant. In any event, the onus was on the applicant to establish a reasonable basis to his claim, which, having regard to the materials before us, and the Judge’s reasoning, we are not satisfied he has been able to do. Further, on our assessment of the claim, there was no real prospect of success.
In challenging the decision under s 24(2), the applicant also contended that the delegate was required to take into account various factual matters, namely that ‘he was living a law-abiding life’ and that his ‘behaviour was not in question’. As submitted by the respondent and having regard to the absolute discretion conferred by s 24(2) and the need for the Chief Executive to make expeditious decisions to facilitate the overall management of a prison, there is no statutory basis to draw that implication. The delegate was under no such obligation.
As to the applicant’s contention that he was denied the opportunity to have access to technology to prepare for legal proceedings, given the terms of s 24(2), there is no such obligation on the Chief Executive. Nor is there any other express obligation in the Act, or elsewhere, requiring the Chief Executive to provide a computer to a prisoner. Whilst s 30 provides that the Chief Executive ‘must arrange for such courses of instruction or training as the Chief Executive thinks fit to be made available to prisoners’, that requirement is subject to the Chief Executive’s own subjective determination. Had this contention been properly before this Court, we would not have granted leave to appeal.
For those reasons, we refuse leave and dismiss the appeal.